By the Court, Harris, P. J.
i concur entirely with the assistant vice chancellor in the view he has taken of the facts in this case. After a careful examination of all the proofs before the court, I am satisfied that no part of the gore spoken of by the witnesses was embraced within the boundaries of lot No. 34, as located by the commissioners in 1790; and that Cockburn, in the survey and subdivision of the lot made by him in 1811, or 1812, extended his survey beyond the north boundary of the lot, so as to include within lot No. 11 of his subdivision, 43$ acres of the gore. If this be so, it follows that when the defendant agreed to sell to Griffin the lots in question, lot No. 11 really contained but one hundred acres; although, in consequence of the error made by'"Cockburn in running beyond the north line of great lot No. 34, he had been led to believe that it contained 143$ acres. Under this belief he represented the two lots as containing 187$ acres. It was so expressed in the contract. The parties to the contract were both mistaken in relation to the quantity of land contained in • the two lots. Both, undoubtedly, relied upon Cocfcbum’s sur-; vey, which showed that the lots contained the number of acres ; specified in the contract. The defendant relying upon that survey, and supposing he had a right to sell all the land embraced within the boundaries of lot No. 11, as located by Cockburn, agreed to sell and convey the same to Griffin, when in fact he had no right whatever to 43$ acres of the land. Griffin, relying upon the defendant’s representations as to the quantity of land included in the lots, agreed to pay for the lots a price equal to four dollars per acre for the whole quantity the lots were represented to contain.
It is true the lots were purchased by Griffin for a gross sum, [48] and not by the acre ; and I agree with the vice chancellor who made the last decree, in the rule laid down by him, that where a specified tract of land is sold for a sum in gross, the boundaries of the tract control the description of the quantity it contains ; and that neither party can have a remedy against the other for an excess or deficiency in the quantity, unless such excess or deficiency is so great as to furnish evidence of fraud or misrepresentation. But I cannot agree with that learned judge in the application of that rule to the case under consideration. The mistake here is in the boundaries of lot No. 11, and not in the quantity of acres it contains. If the defendant, as he supposed when he executed the agreement to sell, could have made a title to the whole lot, as surveyed by Cockburn, there would have been no deficiency in the number of acres. There was no other lot No. 11 than that surveyed and laid out by Cockburn. When the defendant agreed to sell to Griffin lot No. 11, he must therefore have intended the lot as described by Cockburn. There is no deficiency in the number of acres in the lot sold; the difficulty is in the defendant’s being unable to make a title to the whole of that lot. If there had been a less number of acres in lot No. 9, the whole of which is conceded to have been in great lot No. 34, than the parties at the time of the contract supposed, then the rule stated by the vice chancellor would have been applicable. The deficiency then would have been in the thing described. But in reference to lot No. 11, the deficiency is not in the thing described, but in the ability of the defendant to convey the thing described. I think, therefore, the decision of the assistant vice chancellor was correct, and should be sustained, unless, as the vice chancellor supposes, Griffin and the plaintiff, who represent him, are chargeable with such gross laches as should deprive them of the relief to which they might otherwise be entitled.
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By the Court, Harris, P. J.
i concur entirely with the assistant vice chancellor in the view he has taken of the facts in this case. After a careful examination of all the proofs before the court, I am satisfied that no part of the gore spoken of by the witnesses was embraced within the boundaries of lot No. 34, as located by the commissioners in 1790; and that Cockburn, in the survey and subdivision of the lot made by him in 1811, or 1812, extended his survey beyond the north boundary of the lot, so as to include within lot No. 11 of his subdivision, 43$ acres of the gore. If this be so, it follows that when the defendant agreed to sell to Griffin the lots in question, lot No. 11 really contained but one hundred acres; although, in consequence of the error made by'"Cockburn in running beyond the north line of great lot No. 34, he had been led to believe that it contained 143$ acres. Under this belief he represented the two lots as containing 187$ acres. It was so expressed in the contract. The parties to the contract were both mistaken in relation to the quantity of land contained in • the two lots. Both, undoubtedly, relied upon Cocfcbum’s sur-; vey, which showed that the lots contained the number of acres ; specified in the contract. The defendant relying upon that survey, and supposing he had a right to sell all the land embraced within the boundaries of lot No. 11, as located by Cockburn, agreed to sell and convey the same to Griffin, when in fact he had no right whatever to 43$ acres of the land. Griffin, relying upon the defendant’s representations as to the quantity of land included in the lots, agreed to pay for the lots a price equal to four dollars per acre for the whole quantity the lots were represented to contain.
It is true the lots were purchased by Griffin for a gross sum, [48] and not by the acre ; and I agree with the vice chancellor who made the last decree, in the rule laid down by him, that where a specified tract of land is sold for a sum in gross, the boundaries of the tract control the description of the quantity it contains ; and that neither party can have a remedy against the other for an excess or deficiency in the quantity, unless such excess or deficiency is so great as to furnish evidence of fraud or misrepresentation. But I cannot agree with that learned judge in the application of that rule to the case under consideration. The mistake here is in the boundaries of lot No. 11, and not in the quantity of acres it contains. If the defendant, as he supposed when he executed the agreement to sell, could have made a title to the whole lot, as surveyed by Cockburn, there would have been no deficiency in the number of acres. There was no other lot No. 11 than that surveyed and laid out by Cockburn. When the defendant agreed to sell to Griffin lot No. 11, he must therefore have intended the lot as described by Cockburn. There is no deficiency in the number of acres in the lot sold; the difficulty is in the defendant’s being unable to make a title to the whole of that lot. If there had been a less number of acres in lot No. 9, the whole of which is conceded to have been in great lot No. 34, than the parties at the time of the contract supposed, then the rule stated by the vice chancellor would have been applicable. The deficiency then would have been in the thing described. But in reference to lot No. 11, the deficiency is not in the thing described, but in the ability of the defendant to convey the thing described. I think, therefore, the decision of the assistant vice chancellor was correct, and should be sustained, unless, as the vice chancellor supposes, Griffin and the plaintiff, who represent him, are chargeable with such gross laches as should deprive them of the relief to which they might otherwise be entitled.
And here, again, while I fully assent to the doctrine upon which the learned vice chancellor relies, I am constrained to dissent from its application to the case before the court. It is trae that a party asking for a specific performance, must show that there has been no default on his part; and if the applica[49] tion for relief is made after a long lapse of time, unexplained by equitable circumstances, the bill will be dismissed; but the learned writer by whom this rule is laid down, adds, in the same paragraph, that the doctrine is to be taken with some qualifications; and that where non-compliance with the terms , of the contract does not go to its essence, relief will be granted, j( notwithstanding the laches of the party seeking performance/ And the same waiter adds, in the section from which the vice chancellor has quoted, that “ time is not generally deemed, in equity, to be the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract.” In this case there is nothing in the nature or circumstances of the contract itself, nor in the manner in which the time of performance has been treated by the parties themselves, which shows an intention to make time essential in the performance of the contract. On the contrary, the fact that the defendant suffered Griffin to remain in possession of the land, and received payments from him from time to time, on account of the contract, down to a short period before the filing of the bill in this cause, is strong evidence that neither party intended that a failure to perform the contract, according to its terms, at the time specified, should forfeit the right of the party failing, to have a specific performance. (Harris v. Troup, 8 Paige, 423.) Suppose there had been no question in relation to the quantity of the land sold, and that this bill had been filed merely to obtain a conveyance from the defendant upon payment of the balance due on the contract, would any court of equity, under the circumstances which this case presents, withhold a decree for a specific performance ? Is there any principle of equity which would allow the defendant, after having suffered the purchaser to remain in possession, making improvements upon the land, for more than twenty years since the time when he had a right to insist upon payment, and after having received during that whole period payments from the purchaser, on account of the contract, now, when he is asked to perform on his part, to insist upon a forfeiture because the contract had not been performed in time bv [50] the purchaser ? And if not, is there any thing in the fact that the defendant is unable to make a title to-the whole of the land sold, which should relieve him from a performance of his contract now, more than at the time the purchase money became due 1 I apprehend not; unless indeed, something has occurred, as the vice chancellor seems to suppose, by reason of the purchaser’s delay, which has placed the defendant in a worse situation than he would have been in if he had been called upon to perform his contract at the time stipulated. It would, I think, have been a good defence to have shown that at the time stipulated for the performance of the contract, the defen-: dant could have made a title to all the land described in the contract, and that in consequence of the negligence of the purchaser he was now unable to make such title. This would have presented such a change of circumstances affecting the justice of the contract, as should have excused the defendant from performance. But no such fact appears in this case. On the contrary, I think the evidence warrants the conclusion that the defendant never had it in his power to give a valid title to the 43-¡- acres in question; and if so, no change of circumi 'stances has occurred which renders it inequitable to require him to perform his contract, so far as it can be performed, and to make an abatement from the purchase money for the deficiency in the quantity of land he is able to convey.
The result of this view of the questions involved in the case is, that the decree of the assistant vice chancellor was right, and should be established. The decree appealed from must., therefore, be reversed. I think the defendant should be charged also with the costs, since the entering of the first decree.