Mr. Justice Holdom
delivered the opinion of the court.
It appears from the foregoing statement that Olin built a two-flat building and a two-car garage on lot 34, which he did not own, under the belief that it was lot 33, which he did own.
A . careful reading of all the evidence fails to disclose that Reinecke, Gilmore or any other of the persons involved in the original transaction, at any time did or said anything on which Olin acted in erecting his buildings on lot 34 instead of lot 33. .There can be no doubt from the testimony that Olin honestly believed that he was building bn lot 33, as was his intention.
Gilmore, who subsequently acquired title to lot 34, is not proven to have made any statement which would have induced Olin to build on lot 34, instead of lot 33, which he owned. There is no evidence, as we see it, that any statement was made by any party to this transaction to mislead Olin in building on the wrong lot. Reinecke told Olin when he was about to build to have the lot surveyed. Bruening held the contract for the purchase of lot 34 in 1916, and in the conveyance to Gilmore Bruening paid $400 due on his contract at the time Gilmore received his deed. It' is clear that the whole trouble here was that Cavanna, the surveyor, in making the survey for Olin, surveyed lot 34 instead of lot 33. In faith of the correctness of such survey Olin put his improvements on lot 34. In the faith of this survey being correct, Olin procured $6,000 on the mortgage of lot 33, which mortgage money was used in the construction of the two-flat building and the garages on lot 34. So far as this record shows every person interested believed that lot 33 was the lot improved and not lot 34; Gilmore had a survey made by the Chicago Guaranty Survey Company, and then for the first time discovered from that survey that the improvements made by Olin were on lot 34; at that time Gilmore had no knowledge of the improvements on lot 34 and called for a survey.
It is true that during all of the time after the erroneous survey by Cavanna, Olin or the Melins were in the actual possession of lot 34, and that such possession was notice to the world of their rights. The survey of lot 34 for lot 33 was a mistake of the surveyor, Cavanna.
-The record clearly shows that Olin intended to purchase lot 33; Harmon & Company intended to and did deliver a deed to Olin of lot 33; that Olin requested a survey of lot 33 and that Cavanna intended to survey and mark the borders of lot 33, but instead by mistake surveyed lot 34, and marked it lot 33.
There does not appear in the record any fact which would warrant the conclusion that any of the parties conspired or did any fraudulent act which misled Olin, and Olin did not act upon any representation made by Beinecke or anyone else, which misled him or influenced him to erect his buildings on lot 34 instead of lot 33, except the survey of Cavanna made at Olin’s request.
The buildings when constructed on lot 34 became and still are a part of the real estate. Crest v. Jack, 3 Watts (Pa.) 238, in which the court said: “If a stranger enter on the land of another and make improvements by erecting buildings, they become the property of the owner of the land. Were it not so, a person might gain a title by the commission of a trespass, and strip his neighbor of his estate, or subject him to compulsory expenses, under the pretext of improving his property. The foundation of property consists in its being an exclusive right: other persons cannot impair its enjoyment, or impose burdens on it by intermeddling with it'without the .owner’s leave, or color of legal authority. * * * There are, however, cases, in which an owner of land standing by and permitting another to spend his money in improving it, has, in equity, been deemed a delinquent, and been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. * * * To permit such a one to take advantage of the mistake would be revolting to every sentiment of justice. But on the other hand, I know no case where equity has, on the mere ground of silence, relieved one who is perfectly acquainted with his rights, or has the means of becoming so, and yet wilfully undertakes to proceed in expending money on the land of another without obtaining or asking his consent.”
There can be but little doubt that all the parties in interest, including the agents, knew that Olin was constructing his two-flat building and garage, but everyone assumed that he was doing so under the title which he held to lot 33. (Green v. Biddle, 8 Wheat. [U. S.] 1.)
In Haggerty v. McCanna, 25 N. J. Eq. 48, the court said complainant “bases his claim to relief on the ground of mistake. But an error which is the result of inexcusable negligence, is not a mistake from the consequences of which equity will grant relief.' The complainant’s mistake in this case was in assuming, as he says he did, from the fact that his wife had administered on McCanna’s estate, that she was the owner of the lots of land in question. He appears to have made no inquiry whatever on the subject. On the argument it was urged that on the ruling of this court in McKelway v. Armour, 2 Stockt. 115, the relief sought might be granted. But the decision in that case was expressly put on the ground of the complainant! s mistake as to the location of a vacant lot, plotted out on a map only, a mistake which the court said was one which might occur to the most careful and diligent man, and the fact that the defendant stood by and participated in the mistake, which latter consideration was regarded as a most important feature in the case. * * * No relief can be afforded him on the ground of mistake.”
Kirchner v. Miller, 39 N. J. Eq. 355, is a case similar to the one at bar arising on a mistake, and the court said: “The principle of the case is that where one by mistake puts improvements on another’s land mistaking it for his own, equity will, in a proper case, compel the latter to sell and convey the land.to the former, at a price to be fixed by the court, unless he will consent to pay for the improvements. The exercise of such a judicial power, unless, based on some actual or implied culpability on the part of the party subjected to it, is a violation of constitutional right. ’ ’
While it is hard not to believe that Beinecke and Gilmore knew that Olin, for some reason unknown to them, had built on lot 34, yet there is no evidential fact in the record from which a court could hold that Beinecke and Gilmore conspired together to defraud Olin of his rights in lot 34, and by so conspiring and acting together they were guilty of actual fraud, as contended for by complainants. There may be a grave suspicion that they knew of the mistake made by Olin, but there is no evidence from which this court can conclude that Reineeke and Gilmore were guilty of conspiring together to defraud Olin of his rights.
It is insisted that Reinecke and Gilmore remained silent when they should have spoken. However this may be, it is clear that no party to this suit knew, until Gilmore procured a survey of lot 34 after his purchase, that Olin, who owned lot 33, had mistakenly built upon lot 34.
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Mr. Justice Holdom
delivered the opinion of the court.
It appears from the foregoing statement that Olin built a two-flat building and a two-car garage on lot 34, which he did not own, under the belief that it was lot 33, which he did own.
A . careful reading of all the evidence fails to disclose that Reinecke, Gilmore or any other of the persons involved in the original transaction, at any time did or said anything on which Olin acted in erecting his buildings on lot 34 instead of lot 33. .There can be no doubt from the testimony that Olin honestly believed that he was building bn lot 33, as was his intention.
Gilmore, who subsequently acquired title to lot 34, is not proven to have made any statement which would have induced Olin to build on lot 34, instead of lot 33, which he owned. There is no evidence, as we see it, that any statement was made by any party to this transaction to mislead Olin in building on the wrong lot. Reinecke told Olin when he was about to build to have the lot surveyed. Bruening held the contract for the purchase of lot 34 in 1916, and in the conveyance to Gilmore Bruening paid $400 due on his contract at the time Gilmore received his deed. It' is clear that the whole trouble here was that Cavanna, the surveyor, in making the survey for Olin, surveyed lot 34 instead of lot 33. In faith of the correctness of such survey Olin put his improvements on lot 34. In the faith of this survey being correct, Olin procured $6,000 on the mortgage of lot 33, which mortgage money was used in the construction of the two-flat building and the garages on lot 34. So far as this record shows every person interested believed that lot 33 was the lot improved and not lot 34; Gilmore had a survey made by the Chicago Guaranty Survey Company, and then for the first time discovered from that survey that the improvements made by Olin were on lot 34; at that time Gilmore had no knowledge of the improvements on lot 34 and called for a survey.
It is true that during all of the time after the erroneous survey by Cavanna, Olin or the Melins were in the actual possession of lot 34, and that such possession was notice to the world of their rights. The survey of lot 34 for lot 33 was a mistake of the surveyor, Cavanna.
-The record clearly shows that Olin intended to purchase lot 33; Harmon & Company intended to and did deliver a deed to Olin of lot 33; that Olin requested a survey of lot 33 and that Cavanna intended to survey and mark the borders of lot 33, but instead by mistake surveyed lot 34, and marked it lot 33.
There does not appear in the record any fact which would warrant the conclusion that any of the parties conspired or did any fraudulent act which misled Olin, and Olin did not act upon any representation made by Beinecke or anyone else, which misled him or influenced him to erect his buildings on lot 34 instead of lot 33, except the survey of Cavanna made at Olin’s request.
The buildings when constructed on lot 34 became and still are a part of the real estate. Crest v. Jack, 3 Watts (Pa.) 238, in which the court said: “If a stranger enter on the land of another and make improvements by erecting buildings, they become the property of the owner of the land. Were it not so, a person might gain a title by the commission of a trespass, and strip his neighbor of his estate, or subject him to compulsory expenses, under the pretext of improving his property. The foundation of property consists in its being an exclusive right: other persons cannot impair its enjoyment, or impose burdens on it by intermeddling with it'without the .owner’s leave, or color of legal authority. * * * There are, however, cases, in which an owner of land standing by and permitting another to spend his money in improving it, has, in equity, been deemed a delinquent, and been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. * * * To permit such a one to take advantage of the mistake would be revolting to every sentiment of justice. But on the other hand, I know no case where equity has, on the mere ground of silence, relieved one who is perfectly acquainted with his rights, or has the means of becoming so, and yet wilfully undertakes to proceed in expending money on the land of another without obtaining or asking his consent.”
There can be but little doubt that all the parties in interest, including the agents, knew that Olin was constructing his two-flat building and garage, but everyone assumed that he was doing so under the title which he held to lot 33. (Green v. Biddle, 8 Wheat. [U. S.] 1.)
In Haggerty v. McCanna, 25 N. J. Eq. 48, the court said complainant “bases his claim to relief on the ground of mistake. But an error which is the result of inexcusable negligence, is not a mistake from the consequences of which equity will grant relief.' The complainant’s mistake in this case was in assuming, as he says he did, from the fact that his wife had administered on McCanna’s estate, that she was the owner of the lots of land in question. He appears to have made no inquiry whatever on the subject. On the argument it was urged that on the ruling of this court in McKelway v. Armour, 2 Stockt. 115, the relief sought might be granted. But the decision in that case was expressly put on the ground of the complainant! s mistake as to the location of a vacant lot, plotted out on a map only, a mistake which the court said was one which might occur to the most careful and diligent man, and the fact that the defendant stood by and participated in the mistake, which latter consideration was regarded as a most important feature in the case. * * * No relief can be afforded him on the ground of mistake.”
Kirchner v. Miller, 39 N. J. Eq. 355, is a case similar to the one at bar arising on a mistake, and the court said: “The principle of the case is that where one by mistake puts improvements on another’s land mistaking it for his own, equity will, in a proper case, compel the latter to sell and convey the land.to the former, at a price to be fixed by the court, unless he will consent to pay for the improvements. The exercise of such a judicial power, unless, based on some actual or implied culpability on the part of the party subjected to it, is a violation of constitutional right. ’ ’
While it is hard not to believe that Beinecke and Gilmore knew that Olin, for some reason unknown to them, had built on lot 34, yet there is no evidential fact in the record from which a court could hold that Beinecke and Gilmore conspired together to defraud Olin of his rights in lot 34, and by so conspiring and acting together they were guilty of actual fraud, as contended for by complainants. There may be a grave suspicion that they knew of the mistake made by Olin, but there is no evidence from which this court can conclude that Reineeke and Gilmore were guilty of conspiring together to defraud Olin of his rights.
It is insisted that Reinecke and Gilmore remained silent when they should have spoken. However this may be, it is clear that no party to this suit knew, until Gilmore procured a survey of lot 34 after his purchase, that Olin, who owned lot 33, had mistakenly built upon lot 34. Hone of the defendants stood in a fiduciary relationship to Olin, at any time, except Reinecke, who was the agent of the seller of lot 33, and negotiated the purchase by Olin. When that transaction was closed and Olin procured his deed on payment of the purchase price, Reinecke’s responsibility to Olin ceased. There was never a time, in law, thereafter that Reinecke or Gilmore were obligated to warn or advise Olin as to his rights or to tell him to desist from building on lot 34. That is patent from the fact that none of the parties knew that Olin was building on' lot 34 until after the buildings were completed and in the possession of the Melins.
If complainants are entitled to relief they are certainly not'entitled to the alternative relief given.by the decree. The utmost that a court of chancery could decree on the facts of this case would be that Gilmore be directed to convey lot 34 to complainants, the grantees of Olin, and that complainants be decreed to convey to Gilmore lot 33. Lots 33 and 34 are of the same dimensions; they adjoin each other; so far as can be gathered from the record, they are of about equal value. Olin was not guilty of any conscious dereliction in building upon lot 34, but that his so doing rested solely on the fact that his surveyor, Cavanna, surveyed lot 34 when he was told to survey lot 33, and reported to Olin that lot 34, which he did survey, was lot 33. That is the- crux of the whole trouble, Olin’s grantees being from any view point absolutely innocent in the transaction.
Gilmore, so far as the proofs show, cannot be penalized by being compelled to pay for the improvements placed by Olin upon lot 34; that would be highly inequitable and unjust because in Gilmore’s financial condition he might be unable to perform the financial part of the decree.
It is our opinion that the rights of the parties will be more equitably preserved by the Melins conveying to Gilmore lot 33, and Gilmore conveying to the Melins lot 34, and that the mortgage on lot 33 above recited, be transferred and attached to lot 34, and released from lot 33, and that all the parties execute appropriate conveyances to each other for that purpose.
The decree of the circuit court is therefore reversed and the cause is remanded with directions to the circuit court to enter a decree requiring each of the parties, the Melins and Olin, to make, execute and deliver conveyances of lots 33 and 34 as above recited, and that in default of their so doing within 30 days after the entry of such a decree, that a master in chancery of the court be directed to make such conveyances in the name and on behalf of either of the parties who may in this regard fail to make such conveyance or conveyances as may be directed to be made by the decree to be entered by the circuit court in pursuance of and in conformity with the directions in this opinion contained.
Reversed and remanded with directions.
Taylor, P.J., and Wilson, J., concur.