I dissent. Blakeman, after demanding and receiving the two thousand dollars paid by Rosenstock for the strip on the east of the Miller building, in my opinion, is estopped to claim the strip on the west under his conveyance from the Miller heirs. They were bound by their father's agreement to convey to Blakeman as assignee of Apel a twenty-foot lot and no more. Conceding that a conveyance according to the description in that contract might have been claimed by Blakeman to effect a transfer of the twenty feet covered by the building, he could not claim at the same time that it would transfer the strip east of the building which Rosenstock was desiring to acquire. Blakeman must be held to have known what he was seeking by his suit for specific performance, and to have known that if he took the strip on one side he must relinquish that on the *Page 488 other. He made his election when he claimed the price of the strip on the east, and the decree and conveyance by which he got the legal title accurately described the particular twenty feet which he elected to take. The strip in controversy is not included in that description and remained to the Miller heirs who conveyed it to plaintiff. He had the title, legal and equitable, and should have prevailed.