This action was brought to foreclose the mortgage. It is alleged in the answer that the vendee relied on the original search in thus cónsummating the contract, and that if this defect had been shown in the original search it would have been provided for in the agreement-under which defendant took title. The court is asked to decide that it is included in such agreement, or to reform the bond and mortgage by including it. The defendants do not interpose a counterclaim for damages for breach of contract, and they make no allegation of claim of fraud, but they seek to prevent the foreclosure of the mortgage until plaintiff removes this alleged defect in title, which they say in their answer, and gave evidence tending to show, depreciates the market value of the premises at least $500, and probably more.
The court doubtless intended to find good title by adverse possession, under a claim of title, and the uncontradicted testimony would have warranted ■ such finding, but the finding on that subject, as made, is not sufficient to constitute a finding of adverse possession. If it were material we might, for the purpose of sustaining the judgment, presume that the court found the facts essential to con*121stitnte adverse possession, there being ample evidence to warrant such finding. (Bennett v. Agricultural Ins. Co., 15 Abb. N. C. 239 ; Meyer v. Lathrop, 73 N. Y. 316; Smith v. Wetmore, 41 App. Div. 290, 292.)
Over forty years having elapsed since the youngest of these devisees became of age, and no claim having been made by any of them, we deem it exceedingly improbable that defendants will ever he disturbed in their possession.
If this were an action for specific performance of the contract, it may be that specific performance would not be decreed on the evidence presented, although specific performance of such contracts may be decreed where the title depends wholly on adverse possession, provided it is established to a moral certainty that the title is good and marketable. (Simis v. McElroy, 160 N. Y. 156; Ottinger v. Strasburger, 33 Hun, 468; affd., 102 N. Y. 692; Baker v. Oakwood, 123 id. 26 ; Hamershlag v. Duryea, 38 App. Div. 130 ; Culver v. Rhodes, 87 N. Y. 348.) In this case, however, the contract has been executed, the defendant is in possession, and the rule applicable to specific performance does not govern our determination of the case.
The agreement contained .in the bond and mortgage is limited, in definite and specific terms, to the Linwood avenue frontage defect. We cannot extend it by construction to include the rectangular-strip defect, which was not known to or considered by the parties at the time. Courts cannot make contracts. How can we say what agreement the parties would have made with reference to this defect, which is' insignificant compared with the frontage defect, to which alone their agreement relates ? Would they have regarded it of sufficient importance to justify withholding any of the purchase price ? If so, how much ? These are questions which it is not the function of a court to answer. The case, therefore, must be decided the same as if such agreement had not been made. The question then resolves itself into this: Is it a defense to the foreclosure of a purchase-money mortgage that the mortgagor in executing it relied on a search furnished in good faith by the mortgagee, which purported to show good title, when, in fact, there was a partial defect of record title % A long line of well-considered decisions enable us *122to readily answer the question in the negative. The mortgagor, having suffered no damages and being in undisturbed possession, there has not been a breach of the covenant of warranty by eviction or otherwise, and no defense to the foreclosure of the mortgage is established. (Wilt. Mort. forecl. §§ 431-437; 2 Jones Mort. §§ 1500-1507; .Edwards v. Bodine, 26 Wend. 109 ; Parkinson v. Sherman, 74 N. Y. 93; Seidman v. Geib, 16 Daly, 434 ; McConihe v. Fales, 107.N. Y. 408, 412; Kirtz v. Peck, 113 id. 222, 231; Ryerson v. Willis, 81 id. 280, 281; Farnham v. Hotchkiss, 2 Abb. Ct. App. Dec. 94, 99; Banks v. Walker, 2 Sandf. Ch. 344; Platt v. Gilchrist, 3 Sandf. 118, 125; Miller v. Avery, 2 Barb. Ch. 583, 595.)
If there had been a covenant of seizin, the breach of such covenant might have been properly pleaded as a counterclaim, and the validity of the title would then have been directly in issue, for the covenant of seizin is broken at once if the title be defective. (Wilt. Mort. Forecl. §§ 435, 436; Merritt v. Gouley, 58 Hun, 372; Edwards v. Bodine, 26 Wend. 109 ; Bingham v. Weiderwax, 1 N. Y. 509 ; York v. Allen, 30 id. 104 ; Kent v. Welch, 7 Johns. 258 ; Blydenburgh v. Cotheal, 1 Duer, 176; 8 Am. & Eng. Ency. of Law [2d ed.], 186, 187; Rawle Cov.. [5th ed.] § 176 ; Mead v. Stackpole, 40 Hun, 473.)
If these devisees have any interest at all, they claim by title paramount to the mortgage, and could not be brought into this suit to litigate their rights. (Cromwell v. Maclean, 123 N. Y. 474 ; Helck v. Beimheimer, 105 id. 470; Jacobie v. Mickle, 144 id. 237.)
Plaintiff could not bring an action against Kaene’s daughters to determine a claim to this property, even if they made a claim, for he is not in possession, and his assignor has not been in possession for upwards of eight years. Plaintiff being the assignee of the mortgage and having neither title nor possession it is difficult to perceive what form of action he could bring to have it determined that adverse possession has run against the interest of the devisees. If he is deprived of the right to enforce the mortgage until he perfects record title as to this defect, he will be placed at the mercy of said devisees w'ho, while not asserting any claim, may decline, as they apparently have declined, to execute deeds without being compensated liberally.
*123The co.urt cannot upon principle decline to grant a foreclosure of this mortgage, nor would such course be warranted by precedents. It would have been more in accordance with the justice of the case to have withheld the award of costs, but we would scarcely be justified in modifying the judgment in that regard. The judgment appealed from should be affirmed, but without costs.
Adams, P. J., and McLennan, J., concurred; Spring and Williams, JJ., dissented.
Judgment affirmed, without costs.