[After the foregoing statement of the case.] No appeal having been taken from the order overruling the defendant’s exceptions, they are not now before us except so far as the final decree is erroneously affected by their having been overruled. R. L. c. 159, § 26.
The principal attack made by the defendant on the final decree is that the plaintiff did not own the bulkhead nor the ten foot strip between the building and the fence on the west, and that the defendant honestly thought that he did.
As matter of construction of the agreement it is the land bounded on the west by the location of the railroad and the building on that land which the plaintiff agreed to sell and the defendant to buy, not the building and the land under it. The land and the building thereon does not include the bulkhead or the ten foot strip. See in this connection Crosby v. Parker, 4 Mass. 110; Wood v. Commissioners of Bridges, 122 Mass. 394.
But if the defendant through an honest mistake not attributable to his own negligence thought that he was buying more than the agreement covers, that is a defence to a bill for specific performance. Western Railroad v. Babcock, 6 Met. 346, 352. Old Colony Railroad v. Evans, 6 Gray, 25, 36. Boynton v. Hazelboom, 14 Allen, 107. Chute v. Quincy, 156 Mass. 189. See also in this connection Spurr v. Benedict, 99 Mass. 463.
The burden is on the defendant to make out this defence. Western Railroad v. Babcock, 6 Met. 346, 352. Chute v. Quincy, 156 Mass. 189, 191.
*226So far as the defence founded on the ten foot strip goes, the master has found that if the burden of proving his ignorance of the plaintiff’s want of ownership was on the defendant it was not sustained. This is in substance a finding that the defendant did not prove that there was such a mistake.
As to the defendant’s having mistakenly thought that the bulkhead was to be his, the findings of the master are not altogether clear to us. He has found in terms “ that the defendant did not at any time have knowledge or notice that the plaintiff had built and was maintaining said bulkhead without right on land not owned by him, but on the contrary, at all times believed that said bulkhead had been rightfully erected and maintained, and that upon complying with said written agreement of October 21, 1901, he could continue to use and enjoy said bulkhead without lawful hindrance on the part of any person whatsoever,” and it would seem that he made this finding without regard to the burden of proof. He had previously found that if the burden was on the defendant as to “the belief of the defendant as to the plaintiff’s ownership of said ten foot strip or of any part thereof,” it was not made out, and it is a fact that the bulkhead was built on part of the ten foot strip. Whatever may be the true interpretation of these two findings, the finding “that the defendant was negligent in not examining the title and making a survey of the premises ” must be taken to be decisive, if the case is to be finally disposed of on this record. It does not appear from the master’s report what if any use had been made of the bulkhead in the past, or whether there was any way leading to and from it. In short, we do not know the evidence on which this finding of the master was made. The negligence in not finding out the title to the ten foot strip would seem to cover the bulkhead which is a part of that strip of land.
But we are of opinion that the plaintiff did not go far enough in showing that he had a good title to the land to-be conveyed by him. Had the plaintiff shown that the title which Nathan Crosby got in 1878 had come to the plaintiff, it might perhaps have been sufficient. Without expressing a final opinion on that point it is enough to dispose of this contention that there was no sufficient evidence of the fact that the plaintiff got Nathan *227Crosby’s title. The plaintiff went no farther than to put in a deed “purporting to be signed by Stephen M. Crosby, executor and trustee under the will of Nathan Crosby, on which deed was written an assent, release and quitclaim under seal, purporting to be signed by ten persons, described as ‘ being all the heirs, devisees, legatees, next of kin, and persons interested in the estate of Nathan Crosby, late of Lowell, deceased.’ ” In addition he proved that “ the plaintiff has ever since claimed title, and now claims, except as against this defendant, title under said Stephen M. Crosby deed to the premises described therein.” There was no proof showing what the will of Nathan Crosby was, or that it had been admitted to probate, or of any action taken under it to bar the assets being taken for Nathan’s debts, and no proof that the ten persons signing the deed were in fact all the heirs, devisees, legatees, next of kin, and persons interested in his estate as they described themselves to be. This is not enough. See Chauncey v. Leominster, 172 Mass. 340.
This objection was taken at the trial. The title of the plaintiff was put in issue by the answer. The master in his report found and ruled that by a proper construction of the Middlesex Company and the Crosby deeds, “ the plaintiff derived a good and sufficient title to the premises therein described.” An objection was taken to this ruling, and an exception founded on that objection.
The exception to this ruling should have been sustained. Although no appeal was taken from this interlocutory order, it affects the final decree and so was open on an appeal from that decree, by force of R. L. c. 159, § 26. Parker v. Flagg, 127 Mass. 28. See also Burnett v. Commonwealth, 169 Mass. 417. There is nothing to the contrary in the decision in Haskell v. Merrill, 179 Mass. 120.
Whether the case shall be sent to the master for further hearing is for the Superior Court.
Decree disaffirmed, and such further order or decree to he entered as seems to the Superior Court in accord with equity and good conscience.