There is no principle upon which this decree or any part thereof can be sustained. The question whether there was in fact any gore, between lot No. 20 of the subdivisions of great lot No. 49 and the line of great lot No. 50, was distinctly put in issue by the defendant’s answer, and by the replication filed to the same; so that each party had a full opportunity to taire testimony to thqt point. And the evidence of Keirstead, the surveyor, and the map of the location of the *286lots, produced by him, show conclusively that no such gore ever existed except in the imaginations of the inhabitants of the neighborhood, and in that of the defendant who resided at some considerable distance from the supposed premises intended to be leased. It, therefore, was useless and improper to direct a reference, and subject the parties to further expense, when the complainant had not attempted to controvert this fact, stated in the defendant’s answer, by any testimony whatever in opposition to the positive evidence of Keirstead; 'who established the fact beyond all doubt. Another' surveyor who surveyed the supposed gore for the complainant, and who was examined by him as a witness, does not pretend to dispute the fact sworn to by Keirstead, that the supposed gore is in fact within the bounds of great lot No. 5Q, as actually run out and located upon the land by Tappan and Cockburn ; the commissioners who made the partition of the patent more than fifty years since. It must, therefore, be considered as settled, for all the purposes of this suit, that all the parties to the contract of the first of March, 1839, were under a mistake in supposing that there was any such gore'as is described in that contract. It is true the letters of the defendant, written.soon after the contract was made, and rvhen he supposed great lots No. 20 and No. 49 cornered together, state that there was a gore. But the answer and the evidence shows that the defendant was then laboring under a mistake. And as the lease, if executed in conformity with that contract, and purporting to convey land which has in fact no existence, would have been a mere nullity, there was nothing of which a specific performance could be decreed. I am also satisfied, from the evidence, that the complainant must have been aware of the fact that there was no such gore of land, at the time of filing this bill.
The assistant vice chancellor has indeed attempted to make a new contract for the parties, and to decree a specific performance thereof, provided the defendant owns any land in lot No. 11. That, however, is land which neither of the parties supposed was to be included in the lease. For by the terms of thé contract the whole of great lot No. 50, and the whole of lot No. *28711 of the subdivisions of great lot No. 49, are necessarily excluded from the operation of such contract. (See Jackson v. Woodruff, 1 Cowen’s Rep. 276.) Where the vendor has contracted to convey a tract of land the title to a part of which fails, the vendee may claim a specific performance of the contract as to the residue of the land, with a compensation in damages in relation to the part as to which the vendor is unable to give a good title. At least courts of equity have in some instances acted upon that principle. But I am not aware of any case in which the vendor has been decreed to convey an entirely different piece of land from that which the parties had in contemplation at the time of making their contract, and which is not in fact embraced in such contract. Here it is perfectly evident that neither party, at the time of making this contract, expected that Elmendorf was to lease to Butcher and Hogeboom any part of lot No. 11. That part of the decree which directs the master to set off to the complainant 183 acres of lot No. 11, to be leased to him by Elmendorf, provided it shall be found by the master that the defendant is the owner of lot No. 11, is therefore clearly erroneous.
Nor do I think this is a proper case for the court to decree a compensation in damages to the complainant; even if this court has jurisdiction to entertain a suit for damages merely, where the defendant never had the title to land which he has positively agreed to convey, or where he has parted with his title before the commencement of the suit, and that fact is known to the complainant at the time of filing of his bill. Here the evidence shows that the parties were acting under a mutual mistake, as to the actual existence of the gore, between lots No. 20 and 5'0, at the time the contract was made. If the contract has any legal force or effect whatever, which is at least doubtful, there is no reason why Dutcher and Hogeboom, or the complainant who claims the benefit of the contract under them, should not be left to their action at law to recover damages for the non-performance of the contract, if any damages have in fact been sustained. Nothing had been done by them, or either of them, under the contract, and nothing had been paid. Nor was there any mutuality in it. *288For the defendant could not have sustained any suit or action, against Dutcher and Hogeboom, if they had refused to take a lease'of the supposed gore ofland ; which, in fact, had no existence. The most that can be said in this case is, that Dutcher and Hogeboom have lost the speculation which they supposed they were making when they entered into the contract of March, 1839. The means of ascertaining whether the supposed gore had any existence was equally accessible to both parties, as the lines of the lots were run' out and marked upon the land. And the defendant being misled by the reports in the neighborhood of the existence of a gore, when there was no such gore, no fault is attributable to him. In such a case, the proper course is to leave the parties to their legal remedies, if they have any.
It is also perfectly evident in this case, that the complainant, at the time he filed his bill, was aware that the supposed gore had no actual existence, and that no specific performance of the agreement could be obtained in this court. And, in a case of that kind, Chancellor Kent correctly decided that this court ought not to entertain the suit merely for the assessment of damages. (Hatch v. Cobb, 4 John. Ch. Rep. 559. Kempshall v. Stone, 5 Id. 193.) But where the defendant deprives himself of the power to perform the contract specifically, during the pen-dency of a suit to compel such performance, this court may very properly retain the suit, and award to the complainant a compensation in damages; to prevent a multiplicity of suits. And I am not prepared to say that such a decree might not be proper, where the defendant had deprived himself of the power to perform the contract prior to the filing of the bill, but without the knowledge of the complainant; or even where he never had the power to perform, if the complainant had filed his bill in good faith, supposing at the time he instituted his suit here that a specific performance of the contract could be obtained under the decree of this cour.t. But this court does not entertain jurisdiction where the sole object of the bill is to obtain a compensation in damages for the breach of a contract, except where the contract is of equitable cognizance merely. Nor can the' complainant, entitle himself to the interference of this ooartr.to *289give him a compensation in damages for the non-performance of a contract, by neglectjng to state, in his bill, that the defendant is unable to perform the contract specifically; where that fact .is known to him at the time of filing his bill in this court. For if the facts which were then known to him had been fully stated in his bill, the defendant might have demurred, upon the ground that the complainant’s remedy, if any he had, was at law and not in equity. Or he might have raised that objection in his answer. In this case, therefore, the complainant’s bill cannot be retained, for the purpose of obtaining a compensation in damages merely, when he knew that he .could expect nothing more than such a compensation in damages at the time of filing his bill. And the complainant having made a case, by his bill, apparently entitling him to a specific performance, he cannot now insist that the defendant has waived the objection, that the remedy of the complainant was at law; because he did not demur to the bill, or state that objection in his answer.
The decree appealed from is erroneous, and must be reversed. And the complainant’s bill must be dismissed, with costs in the court below; but without prejudice to the complainant’s remedy at law, upon the contract, if he has any such remedy there. The defendant having died since this cause was submitted upon the appeal, the decree to be entered upon this decision must be entered nunc pro tunc, as of the time of such submission.