In a suit in equity brought to foreclose a mortgage of land given to secure the purchase-money, the fact that, without the fault of either party, but through a material mistake of the defendants as to the location of a boundary line, the plaintiff conveyed less land to the defendants than the latter agreed to buy is not a defence of a partial failure of consideration, but may be a ground of relief in equity. If the defendants, on a bill brought by themselves, would be entitled to such relief, it may be given upon proper proceedings in the equity suit for foreclosure. In such a case, upon a reconveyance and restoration of the plaintiff to his former position, after the commencement of the suit, and in a reasonable time after the land was conveyed to the defendants, justice may be done by a decree based on the state of things existing at the time of the decree.
FOSTER, J.
In Murray v. Whitcomb, 58 N.H. 50, the answer was, that the vendor did not convey to the defendants what he agreed to convey. In this case, Nelson conveyed to the defendants all he agreed to sell, and all he could sell, but less than they agreed to buy. By reason of a misunderstanding of the location of a boundary line, the minds of the parties did not meet, and there was no irrevocable contract. But upon the misunderstanding, and without any fault on either side, Nelson delivered to the defendants a deed, by which the title of the whole of his farm passed to them; and as his agreement was to sell the farm for $1,800, they cannot keep it without paying him that sum. The law does not make for the parties a contract giving the defendants less land than they agreed to buy, for a less price than Nelson agreed to take.
Upon the present state of facts, the plaintiff is entitled to a decree of foreclosure for the amount of the note; but the defendants may move for leave to reconvey the farm, and restore the plaintiff to the testator's former position, upon an equitable adjustment to be made at the trial term, where the questions of fact raised by the motion will be decided, and such decree will be made as legal justice requires in the state of things existing at the time of the decree. Morrill v. Hovey, 59 N.H. 107; Towle v. Lawrence, 59 N.H. 501.
Case discharged.
DOE, C.J., did not sit: the others concurred.