The defendant was the purchaser from the plaintiff of a lot of ground, and for a part of the consideration money he gave a mortgage thereon. Neither the deed nor the mortgage referred to any building on the premises. There was a house standing on the lot, which projected over the adjoining lot. In consequence thereof the defendant purchased the adjoining lot, and thus became the owner of both lots and of the whole building. The plaintiff now brings an action to foreclose the mortgage, and the defendant sets up, by way of counter-claim, the above facts, on which he asks for damages for the portion of the house which stood on the adjoining lot. On the trial, the referee excluded the evidence offered to prove this counter-claim.
There is no doubt the deed of the lot conveyed every thing standing upon it, whether dwelling or other building, fences, &c., that belonged to the vendor, and if there was any thing attached to the land that belonged to any other person, the vendee could recover damages, under the covenant of seisin. This was settled in the case of Mott v. Palmer, (1 Comst. 564,) but that case goes no further. It does not hold, what is necessary for the defendant’s counter-claim, that where a house stands upon two lots, a conveyance of either makes the grantor liable for the value of that portion of the house which stands on the adjoining lot.
There is no doubt that previously to the adoption of the code of procedure, any defect of title, where the purchaser remained *433in possession, could not "be set up as a defense to a proceeding to foreclose the mortgage. So far as that matter would be a defense, the law remains unchanged, and it is no more a defense now than it was before the code became a law. The only question, therefore, which can arise, is whether the defendant could set up this matter as the foundation of a counter-claim.
In the National Fire Ins. Co. v. McKay, (21 N. Y. Rep. 191,) Ch. J. Comstock says, that “ a defendant who is personally liable for the debt may probably introduce an offset to reduce or extinguish the claim.” This was not necessary to the decision of that case, and it does not appear that the other judges concurred in that expression of opinion. As I understand the case, on that point, there was no decision. It can hardly, therefore, be considered as authority, although entitled to great weight.
But whether such counter-claim was admissible or not, the evidence offered did not show any right to recover against the plaintiff therefor. The deed did not purport to convey any building, by description. Whatever right the defendant had to the buildings on the land conveyed, arose from the principle that a man who conveys a lot conveys every thing standing on the lot and being affixed to the freehold. This would give him title to so much of the house as stood on the lot. We have been referred to no authority to show that it gave any thing more, The cases of lights, overhanging gutters, and other matters of a similar nature, do not apply. They rest on a different principle, which cannot be available in this case; and most if not all of the cases arose between vendor and vendee, where the vendor owned both pieces of land.
We think the defendant gained no title to the portion of the house which did not stand on the lot conveyed to him, and that the plaintiff was not liable because part of the house stood on another lot. The clear intent of the deed was not *434to convey more than one lot, and the rule of construction of deeds is to carry out the intent of the parties.
[New York General, Term, May 27, 1861.The defense was properly excluded, and the judgment should be affirmed.
Judgment affirmed, with costs.
Clerke, Gould and Ingraham, Justices.]