¶1- The plaintiffs bring this action to recover $1,000, moneys paid on a contract of purchase of real estate, and for damages for a breach of such contract, claiming that the premises mentioned in the contract were incumbered with an encroachment six inches wide on the westerly wall. The contract of purchase and sale was made in writing, the premises being shown upon a diagram, which pointed out a lot with 100 feet frontage on Pitkin avenue and 150 feet deep. It is conceded on this appeal, as it was upon the trial, that the premises which the defendant was prepared to convey did not extend 100 feet on Pitkin avenue, though it was claimed that there was a party wall upon the westerly line, and that if the premises ran to the middle of this party wall there would be 100 feet of such frontage. The contract," after pointing out the premises as 100 by 150 feet, declared that the “ vendee has the privilege of a party wall as per agreement now in possession of Title Guarantee and Trust Company.” The defendant urges upon this appeal that, this was sufficient to give the purchasers notice of the incumbrance, and that they must be understood to have purchased subject to the encroachment of this party wall.
¶2It seems clear to us that where the parties enter into an agree*656ment to. sell and' purchase premises 100 by 150 feet, “ free from all incumbrances, except as herein stated,” -the vendor is bound to be prepared to convey the premises according to the terms of the contract, and that the reference to the privilege of a party wall was to be understood, not as an incumbrance upon the premises tb be sold, but something-in addition thereto.' This is the contemplation of parties in a contract of sale, such- as the one here under consideration," from the natural meaning of the language employed. . If the plaintiffs refused to accept the premises with this encroachment of auqaflege.d. party '.Wall, the defendant failed to comply with the conditions of his contract, and. the. plaintiffs had a right to have-their money refunded and to have the damages adjusted, justas has been done in the case now-before us. ■
¶3It is undoubtedly true, if the plaintiffs had accepted the deed tendered by the defendant, and had entered into possession, a court of equity would not permit a rescission of the contract, because there was enough in the contract of sale to give the plaintiffs notice of a party wall in connection with the premises, - and they would be deemed to have accepted the modification; blit in this case the plaintiffs, having found that the premises^ to be conveyed were incumbered by an encroachment of - six inches, refused to complete the purchase, as they had a right to do, and the judgment awarding them the sum of $1,100, or the return of the $1,000 deposit and $100 for the expense of examining title, is supported by the facts, and is in harmony with the law and with the contract existing between the parties. ■ '
¶4We have examined the errors alleged on the part of the defendant, but do not find any which call for a reversal of this judgment.
¶5The judgment and order appealed from should be affirmed, with costs."
¶6Hirschberg, P. J., Gaynor, Rich and Miller, JJ., concurred.
¶7Judgment and order affirmed, with costs.