¶1The defendant was the purchaser from the plaintiff of a lot of ground, and for *460a' part of the consideration money he gave a mortgage thereon. Neither the deed nor mortgage referred to any building on.the premises. There was a house standing on the lot, which projected oYer the adjoining lot. In consequence thereof, the defendant purchased the adjoining lot, and thus became the owner of both lots and of the whole building.
¶2The plaintiff now brings an action to foreclose the mortgage, and the defendant sets up by way of counterclaim the above facts, on which he asks for damages for the portion of the house which stood on the adjoining lot.
¶3On the trial the referee excluded the evidence offered to prove this counterclaim.
¶4There is no doubt the deed of the lot conveyed everything standing upon it, -whether dwelling or other buildings, fences, &c., that belonged to the vendor, and if there was anything attached to the land that belonged to any other person, the vendee could recover damages under the covenant of seisin. This was settled in the case of Mott agt. Palmer, (1 Comstock, 564,) but that case goes no further. It does not hold what is necessary for the defendant’s counterclaim, that wher.e a house stands upon two lots, a conveyance of either makes the grantor liable for the value of that portion of the house which stands on the adjoining lot.
¶5There is no doubt that previously to the adoption of the Code of Procedure, any defect of title, where the purchaser remained in possession, could not be set up as a defence to a proceeding to foreclose the mortgage.
¶6So far as that matter would be a defence, the law remains unchanged, and it is no more a defence now than it was before the Code became a law.
¶7The only question, therefore, which can arise is, whether the defendant could set up this matter as the foundation of a counterclaim.
¶8In The National Fire Insurance Co. agt. McKay (21 N. *461Y. Rep, 191,) Ch. J. Comstock says, that “ a defendant who is personally liable for the debt, may probably introduce an offset to reduce or extinguish the claim.” This was not necessary to the decision of that case, and it does not appear that the other judges concurred in that expression of opinion. I understand from another of the justices, that on that point there was ho decision. It can hardly, therefore, be considered as authority, although entitled to great weight.
¶9But whether such counterclaim was admissible or not, the evidence offered did not show any right to recover against the plaintiff-therefor.
¶10. The deed did not purport to convey any building by description. Whatever right the defendant had to the buildings on the land conveyed, arose from the principle that a man who conveys a lot conveys everything standing on the lot and being affixed to the freehold.
¶11This would give him title to so much of the house as stood on the lot. We have been referred to no authority to show that it gave anything more. . The cases of lights, overhanging gutters, and other matters of a similar nature, do not apply. They rest on a different principle, which cannot be available in this case ; and in most, if not all of the cases, they arise between vendor and vendee, where the vendor owned both pieces of land.
¶12We think the defendant gained no title to the portion of the house which did not stand on the lot conveyed to him, and that the plaintiff was not liable, because part of the house stood on another lot. The clear intent of the deed was not to convey more than one lot, and the rule of construction- of deeds is to carry out the intent of the parties.
¶13The defence was properly excluded, and the judgment should be affirmed.
¶14Judgment affirmed with costs.