The objection that William Griffin ought to have been a party to the suit, was made for the first time at the hearing. It therefore came too late, if a perfect decree can be made between the present parties ; and if *620Griffin be an indispensable party to a decree between them, the court will direct the cause to stand over so that he may be made a defendant. It is clear that he may be a party with propriety, and if the complainants prove to be entitled to relief, the decree may provide for bringing Griffin into the suit.
On the merits of the case, it seems to me to be an important question whether the subdivision 11 in lot 34, did or did not include the gore, as it is called, lying northerly of Griffin’s possession. The north line of the subdivision is the north line of lot 34, and cannot extend beyond the latter. Where then was the north line of lot 34 ?
As I understand the private act of 1790, under which Great Lot No. 20 was run out and subdivided, it was the duty of the commissioners to mark the division lines. If so, and they performed that duty, there must have been a line designated and marked through the forest in 1790 or soon after, as and for the north line of this subdivision 34.
. When Mr. Cockburn, the witness, proceeded in 1811 or 1812, to subdivide lot 34 into smaller lots, he found two lines marked on its north side, neither of which corresponded with the required distance from the south line as laid down in the commissioners survey and map. The most southerly of the two lines found by Cockburn, is the south line of the gore, and corresponds with the north line of Griffin’s possession. But this falls ten chains short of the distance on the commissioner’s map. The other marked line was two and a half chains beyond that distance. He found no line at the proper distance, nor any marked corner at the northeast corner; but at the northwest corner, at a point one or two chains from where he came out in running the north line at the proper distance, he found the corner as marked by the commissioners.
it does not appear that this corner corresponded with the northerly marked line, and it could not have corresponded with the other. The southerly line which Mr. Cockburn found, must have been there before the Tappen’s run their line as mentioned by the witness Van Valkenburgh; for that was about the time Griffin entered into possession. The Tappen’s must therefore *621have run upon the line which Cockburn saw in 1811 or 1812, and marked more trees to designate it.
Now Hr. Cockburn, as a surveyor, residing in that region of country, must have known at that time, whether the southerly line which he found was an old line or not; whether it had been marked twenty years, or only two or three years before. And his silence as to the character of both lines in this respect, is singular. Again, he was a party interested in maintaining the line as far north as possible, "yet he did not adopt the northerly line which he found marked ; and this shows clearly that he did not in 1811, deem that to have been the line marked by the commissioners.
Garrison took possession of the gore from Brooks in 1820, and he testifies that there was then a line of marked trees on the south line of the gore, which had apparently been made some years before, and the bark of the trees had partly grown over the marks on them. This, from the description of the witness, must have been the same marked line that Cockburn saw eight or nine years before; and the growth of the bark over the marks, much strengthens the presumption that it was the line originally run by the commissioners.
It certainly makes it so very doubtful whether lot 34 as laid out, ever actually included the gore, that this court will not compel a purchaser to take the title to it from one whose claim is limited to the north boundary of that lot.
The line marked by the commissioners, must of course control the extent of the lot, and it cannot be carried beyond that line by the courses and distances contained on their map. (Van Wyck v. Johnson, 18 Wend. 157.)
It is possible that some light might be thrown upon the point, by extending a survey across subdivision 35. Still, if the north line of 35 shall be found to correspond with that laid down by the commissioners on their map, and by some error of theirs, such as counting 72 chains when they had run only 62, they marked and established by monuments, the north line of subdivision 34 ten chains south of where it should have been ; there is no remedy for it, and number 34 must continue to be 62 chains •wide, while 35 will retain its enhanced width of 82 chains.
*622The locality of this line was distinctly in issue, and I must presume that the parties exhausted their testimony in regard to it. If any witness could have aided the defendants, it was Hr. Cockburn, whose testimony I have already examined. I feel impelled, therefore, to decide upon the locality, as between these parties, and my opinion is clear, that the south line of the gore was the original north line of lot number 34 as actually marked and designated by the commissioners. The lot 11, as owned by the defendant and his wife, is necessarily bounded upon this line, and the defendant is not able to give to the complainants a title to the gore in question.
This being the result, it is next contended on the part of the defendant, that the contract was for the sale of lot 11, whatever its contents might be, and that the expression, “ one hundred and eighty-seven and one-half acres,” was mere description. In considering this point, it must be observed that this is an executory contract between the parties.
The bill charges, that previous to the bargain, the defendant exhibited to Griffin a map showing the lots 9 and 11, and that as they were there laid down, they contained one hundred and eighty-seven and one-half acres. This is denied by the answer, and it is not proved. But what are we to infer from the contract itself, with the surveys and descriptions 7 The defendant contracted to sell to Griffin, “ lot number nine and eleven in No. 20, in great lot No. 34, one hundred eighty-seven acres and one-half, for seven hundred and fifty dollars.” This is a contract for the two lots, for a gross sum, or peí• aversionem, as it is in the civil law; but what was the intention of the parties 7 Was there a mutual mistake, or was there a misrepresentation 7 Of the latter I find no proof. But I think there is sufficient evidence of a mistake.
If Griffin, after ascertaining the defendant’s terms, had gone to examine the land, he would have found lots 9 and 11, as laid out by Cockburn in 1811 or 1812, containing one hundred and eighty-seven and one-half acres. He would not have been led to examine the lines of lot 34, for the description which he had received designated lots 9 and 11 as subdivisions of lot 20, instead of 34. Now I am to presume that Griffin either did exam*623ine before contracting, or satisfied himself from the statements of others, who as he supposed had examined, or otherwise knew the two lots.
So the defendant undoubtedly supposed these two lots run across what is called the gore, and embraced the one hundred and eighty-seven and one-half acres. If he had ever visited them, he would have found them so marked on the ground. If he took his information from Cockburn’s subdivision of lot 34, he found the two lots laid out by metes sufficient to contain one hundred and eighty-seven and one-half • acres. His whole idea of the lots, and his information concerning them, necessarily rested on Cockburn’s survey, because the lots originated in his survey and subdivision. That he understood and believed the two lots to contain the full quantity, is further proved by his subsequent assertion, from time to time, that lot 11 extended across the gore.
The case then, upon the contract itself and the several surveys, is this. The defendant and Griffin, dealing in respect of lot 11, proceeded upon Cockburn’s survey and location of the lot, by which it contained one hundred and forty-two and one-fourth acres. The one intended to sell the lot as laid out and marked by Cockburn, and the other supposed that he was buying the lot so marked; which truly contained the quantity of one hundred and forty-two and one-fourth acres. On completing the contract, it turns out that Cockburn in running this lot 11, extended it so much farther north than he should have done, as to include forty-three and one-half acres on the lot 35, and the defendant never had any right or claim to those forty-three and one-half acres.
This is a plain instance of mutual mistake. The lot 11 for which Griffin contracted, was the one laid out by Cockburn. The lot 11, which the defendant is able to convey, is the same lot as Cockburn should have laid it out, bounded on the north by the lot 35. The deficiency is not in the subject matter as described in the contract, for Cockburn’s lot 11 as he marked it holds good as to quantity. The difficulty is in giving title to that subject matter.
This frees the case from the bearing of the authorities cited *624by the defendant, to show that where a definite lot is conveyed stating the number of acres, the latter is merely descriptive, and. the boundaries of the former must govern, whether they contain a greater ór a less quantity of land.
The complainants, as assignees of the contract, are entitled to a decree for its performance, so far as the defendant can make a title. And for the forty-three and one-half acres, to which he cannot convey a good title, there must be a rateable deduction from the price. This deduction should be made at the outset, and interest computed upon the balance, and the payments applied accordingly.
To obviate the delay of making Griffin a party, the complainants may file his assent under seal, duly acknowledged, to be bound by the decree. This consent should be recited in the decree and enrolled with it.
The decree may also declare that the title of the defendant and his wife to the land in the gore, is not to be affected by it, for any purpose other than the performance of this agreement. If the parties can agree upon the computation, a reference will be unnecessary.
As to the costs, there has been a mistake common to all the parties, and neither of them appears to have arrived at a correct view of the facts till since the litigation commeríced. I think it is just to give no costs to either against the other, up to the entry of the decree.
If Griffin declines to execute the consent, the complainants may make him a party by a supplemental bill.(a)
This decree was affirmed on appeal, by the Supreme Court in Equity, January, 1848.