Engel v. Powell

• Citation: 154 Mo. App. 233,134 S.W. 74
• Parties: ENGEL v. POWELL et al.
• Decision Date: 01 January 1911
• Court: Court of Appeal of Missouri (US)

134 S.W. 74

154 Mo. A. 233

ENGEL v. POWELL et al.

Kansas City Court of Appeals. Missouri.

January 1, 1911.

1. VENDOR AND PURCHASER (§ 338)—DEFICIT IN ACREAGE—RIGHTS OF PURCHASER.

On a sale of land equity will relieve against fraudulent representations or mistake as to quantity.

2. EQUITY (§ 6)—JURISDICTION—MISTAKE.

Equity relieves against mistake of one or both parties to a written agreement, which would defeat the real agreement.

3. EQUITY (§ 3)—JURISDICTION—GROUNDS.

Equity jurisdiction depends upon existence of equitable interest and inadequacy of legal remedies.

4. VENDOR AND PURCHASER (§ 341)—DEFICIT IN ACREAGE—EVIDENCE.

One suing for a deficit in the acreage of land sold him could show agreement for the sale and the vendors' representations made when and before the contract and deed were made, where the deed described an irregular tract and recited an acreage larger than a subsequent survey disclosed.

5. EVIDENCE (§ 213)—OFFER TO COMPROMISE.

One suing for a deficit in the acreage of land could not show that defendants' grantor offered to settle if defendants would release him, but that defendants refused to do so unless reimbursed for legal expense.

6. EVIDENCE (§ 213)—OFFERS TO COMPROMISE.

Declaration that evidence tending to show an offer to compromise was not offered for that purpose does not render it competent.

Appeal from Circuit Court, Livingston County; Arch. B. Davis, Judge.

Action by George Engel against Robert F. Powell and another. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

J. H. Denny, for appellant. Percival Birch and W. M. Williams, for respondents.

BROADDUS, P. J.

This is a suit in equity wherein plaintiff seeks to recover for the deficiency of 16.13 acres of land, the difference between the actual amount purchased and that conveyed by defendants to the plaintiff. For convenience we will denominate defendants as synonymous with that of defendant.

On the 20th day of January, 1908, and for a period of nine years prior thereto, the defendant was the owner of a tract of land situated partly in Howard and partly in Chariton county, on which date by a written contract he sold to plaintiff, and in which the land was described as follows: "All that part of the northwest quarter of section 27 lying west of the county road leading from Glasgow to Salisbury; also the south half of the northeast quarter of section 28, and the northeast quarter of the northeast quarter of section 28, all in township 52, range 17, containing 255.84 acres." In the deed subsequently made by defendant conveying the land to plaintiff, the land is described as follows: "All the south half of the northeast quarter, and the northeast quarter of the northeast quarter, of section 28, and all that part of the northwest quarter of section 27 which lies west of the public road leading from Salisbury to Glasgow, all in township 52, range 17, reserving a right of way along the northern boundary of the above land leading to the land now owned by G. Nellesen, and being the same tract of land acquired by party of the first part by deed from Wm. E. White and wife, dated February 16, 1899, recorded in Book 56, at page 218, Deed Records of Howard County, Missouri, and containing in all 255.84 acres." The defendant had placed the land in the hands of a real estate agent for sale, listing it at 256 acres at $65 per acre, and both defendant and his agent represented to plaintiff, who it appears relied upon such representations, that the tract contained said number of acres. The plaintiff at one time asked defendant if he knew exactly how much land he had in the farm, to which defendant replied that it contained 256 acres with a fraction more or less, but that the fraction did not amount to as much as one acre. It was shown that plaintiff lived in another county and was practically unacquainted with the land, although he had seen it twice before he bought it. It will be seen by the description that the tract was irregular in shape. In the negotiations which led up to the purchase and sale of the land, the defendant fixed his price at $65 per acre; the plaintiff offering to pay him $60 per acre. It was finally agreed that they would split the difference in the offering and selling price, and the price was fixed at $62.50 per acre. At the time of writing the contract, defendant produced the deed from his grantor which gave the number of acres of the land as 255.84. At the time the deed was executed on the 13th day of February, 1908, at the direction of the defendant, the consideration in money and a note for $3,500 was paid over to defendant's wife. In March following, plaintiff went into possession of the land and began to make improvements. In the following December, when he received his receipts for taxes paid on the land, he ascertained that one called for 113 acres in Chariton county and one for 133 acres in Howard county, making a total of 246 acres. Afterwards he caused it to be surveyed and ascertained that there were only 239.71 acres in all. The plaintiff offered to prove that his attorney went to see Mr. White, the person from whom def...