On the 29th day of April, 1895, the plaintiff was the owner of two houses and lots in the city of Brooklyn, known as 755 and 757 *156Dean street. On that day she and her husband entered into an agreement witli the appellant, whereby the plaintiff was to convey said houses and lots and another house and lot to the appellant, who was to pay for them by conveying to the plaintiff a farm at Huntington, and was to loan to her upon the farm the sum of $5,000. The détails of this contract are immaterial. The only description in the contract of the property on Dean street is “ the , two houses known as Nos. 755 and 757 Dean street *' * * said lots together being 49 ft., 10 in. x 110 feet.” When the title came to be closed the plaintiff presented a deed' conveying the lots on Dean street by metes and bounds, as follows:
“ Beginning at a point on the northerly side of Dean street, distant three hundred .and twenty-five feet easterly from the corner formed by the intersection of the easterly line of Underhill avenue with the northerly line of Dean street; running thence northerly parallel with Underhill avenue one hundred and ten feet;"thence easterly and parallel with Dean street forty-nine feet and ten inches; thence southerly again parallel with Underhill avenue one hundred and ten feet to the northerly line of Dean street, and thence westerly along the northerly line of Dean street .forty-nine feet and ten inches to the placé of beginning.”
The appellant produced a survey made by one Bartlett, a city surveyor, showing that the westerly house encroached on the lot to the west four inches in the front and six inches in the rear. Thereupon the parties made the following agreement:
“Whereas, in the exchange of property this day between Mary E. Nolan, wife of Thomas M. Nolan, and Obadiah Earned, it appears that the building on the Dean street property, conveyed by the said Ndlan to said Earned, encroaches on the property westerly thereof; and,
“Whereas, the parties have agreed to close" the transfers-on the understanding that a- proper conveyance of the land encroached upon shall be procured by said Nolan to said Earned at her own expense:
“ Now, therefore, in consideration of the premises, and the sum of one dollar each to the other in hand paid, the receipt whereof is hereby acknowledged, it is hereby agreed that said Earned shall hold the sum of five hundred (500) dollars without interest, payable *157to said Nolan as soon as she shall procure a proper conveyance of said strip of land encroached upon, as shown by survey of H. L. Bartlett, city surveyor, and in default of procuring said conveyance within six months from date by said Nolan, it is agreed that said Harned may procure the same, charging the expense thereof to said funds in his hands.
“ Signed, sealed and delivered this 7th day of May, 1895.”
The title was thereupon passed and the appellant paid the money due to the plaintiff under the contract with the exception of $500, which he retained undei’ the agreement recited. • The plaintiff obtained no release from the owners of the adjacent lot. On the 17th of July, 1895, she brought this action to cancel and declare void the agreement of May seventh and to recover the sum of $500 retained by the appellant. As ground for this relief she alleged in her complaint that the appellant falsely and fraudulently pretended to her that one of the buildings on the Dean street lots encroached on property to the west thereof not owned by her, and that the same was shown by the survey of Bartlett, the city surveyor. The Special Term decided the case in the plaintiff’s favor, not on the ground of fraud, but “ upon the ground that said agreement was made and executed by mutual mistake, through the assertions, representations and demands made- by the defendant Harned.” From that judgment the defendant Harned appeals.
We are of opinion that there is not only no evidence on which to base the charge of fraud, but none to sustain the' finding of the trial court that the agreement was executed under mistake. On the trial the surveyor, Bartlett, was sworn as a witness.' He testified to the-accuracy of his survey, and his . plot of that survey was placed in evidence. By that survey it appears that the westerly house extends. four inches to the west beyond the westerly line of the property described in the de,ed. This was the survey produced at the time of passing the title. To entitle her to relief it was incumbent on the plaintiff that she should show affirmatively that this survey was erroneous. Instead of so doing, I can find no evidence whatever in the case to impeach it. Austin Liidlam, a city surveyor, was sworn for the plaintiff. He testifies as to the identity of the lots conveyed to and by the plaintiff, and as to their location, but he says not a word as to the location of the buildings and structures on those *158lots. It seems to me that at this point the trial judge must have misapprehended the objection raised by the appellant on ■ closing the title, and as security against which the agreement was given and the $500- retained. ■ There is no question made that the title of the plaintiff .to the .plot of land described by metes and bounds in the deed executed by her was not perfect. The. objection of the appellant was that the buildings on those lots, to the extent of four and six inches on the westerly side, lay outside of them. The contract was not to convey the plot of land described by metes and bounds, but two houses and lots designated by certain street numbers. To carry out her contract it was, therefore, necessary that the plaintiff should convey a good' title to all the land on which those houses stood,, and unless the plot described in her deed comprised- all the land on which the buildings were constructed, she did not carry out her contract.. That the land described in her deed, and the land on which the buildings stood were not identical, appeared by the survey of Bartlett, and that survey stands on .the record in this case uncom trádicted. Therefore, the representation on which the agreement was executed by the plaintiff appears affirmatively to be true.
On this appeal the respondent'seeks to sustain the judgment below, on the ground that a practical location of the westerly line of plañir tiff’s lots by her and the adjacent owner was established on the trial. I am not prepared to say that even if such fact had been established on the trial it would entitle the plaintiff to avoid the agreement. When- the title came to' be passed,, the appellant raised the objecr tian that there was a discrepancy between the description in the deed and the survey. For this reason he declined to take the title. It may be that, if the plaintiff could establish the practical location-of the line or adverse possession on her part, she might have compelled the appellant to take title. She could have stood on her rights, refused to sign the agreement of May 7,1895, and sought to enforce specific performance of the original contract. She did not take that course, but acceded to the proposition of the. appellant to- the settlement of the point in dispute, by executing the agreement of May seventh. There is nothing to show that the claim of the appellant was made in bad faith, nor would it establish that fact to show that the defect in the title had been cured by.adverse possession or practical location.
*159We are also of opinion that a practical location of the boundary line was not established in this case. To be controlling, the line so located must be acquiesced in for at least twenty years. (Baldwin v. Brown, 16 N. Y. 359; Reed v. Farr, 35 id. 113.) The mere fact that the adjoining owner built his house back from the dividing line would not establish a practical location that would be conclusive upon him. No actual possession was shown by the plaintiff or her predecessors in title for a longer period than nine years. We shall not, however, discuss this question any further, as the facts may be changed on a new trial. Suffice it to say, the plaintiff’s title through this source was not so clearly shown that we can say that any court would have compelled the appellant to take her deed.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
All concurred, except Goodrich, P. J., dissenting.