Skinner v. Walker, &C.

• Decision Date: 26 February 1896
• Citation: 98 Ky. 729
• Parties: Skinner v. Walker, &c. Walker, &c., v. Skinner. Braswell, &c., v. Walker.
• Court: Kentucky Court of Appeals

98 Ky. 729

Skinner v. Walker, &c.

Walker, &c., v. Skinner.

Braswell, &c., v. Walker.

Court of Appeals of Kentucky.

February 26, 1896.

APPEALS FROM LYON CIRCUIT COURT.

F. W. DARBY FOR N. T. BRASWELL AND R. E. WALKER.

D. B. CASSIDY AND WM. MARBLE FOR APPELLANT F. H. SKINNER'S EXECUTOR.

T. J. WATKINS FOR APPELLEE ADALINE WALKER.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

November, 1888, N. T. Braswell brought an action against R. E. Walker to enforce a lien upon two tracts of land, stated in the mortgage to contain 170 acres, 3 roods, 20 poles, and 194 acres, to satisfy a debt of $5,756. F. H. Skinner, becoming a party, sought by cross action the enforcement of a lien upon the first-mentioned tract to satisfy residue of purchase money; and Adaline Walker, having previously obtained judgment of absolute divorce from R. E. Walker, also became a party, and in her pleading set up, as had been done in the action for divorce, claim of homestead for herself and infant child in the tract of 194 acres upon the ground she did not unite in the mortgage to Braswell.

June, 1889, was entered an agreed judgment for the amount of the debts of Braswell and Skinner, less a disputed credit on the latter, and for sale of the two tracts of land, that took place October, 1889, when Braswell purchased the Skinner tract at twenty-five hundred dollars and the 194-acre tract at twenty-eight hundred dollars. But December, 1889, after term of court at which the judgment was rendered, Braswell and R. E. Walker brought a distinct action for a new trial of the cross action of Skinner upon the ground there was a deficit in the quantity of land sold and conveyed by him. Braswell, as purchaser, also filed exceptions to the sale of that tract upon the same ground.

By final judgment rendered in the three actions, consolidated and heard together, a new trial was granted, the sale of the Skinner tract set aside, and a sum proportioned to the deficit deducted from the amount of purchase money sued for. From that part of the judgment Skinner has appealed.

It was also adjudged that the sum of five hundred dollars paid by R. E. Walker had been rightfully applied by Skinner as credit on other notes and an account, instead of the land note sued on; and from that part of the judgment R. E. Walker and Braswell have appealed. But it may as well be now said that as there is no satisfactory evidence either Walker directed or Skinner agreed for that sum to be applied as partial payment of the land note, the latter had the right to apply it as was done.

It was further adjudged Adaline Walker still retained a homestead in the tract of 194 acres, and that in lieu of it one thousand dollars, proceeds thereof, be set apart, and that in lieu of it at the rate of six per cent. per annum be paid to her. From that part of the judgment R. E. Walker and Braswell have appealed.

We will first consider questions arising on the appeal of Skinner. The tract of land was sold and conveyed by him to R. E. Walker for the consideration of three thousand dollars, and contain, as stated in the deed, 170 acres, 3 roods, and 20 poles, which was at the rate of seventeen dollars and more per acre. But, according to actual survey made under order of court, there is a deficit of 40 acres, 1 pole, resulting in a loss to Walker of $706, which the lower court adjudged should be deducted from the purchase price.

The general principle applicable to such case as settled by this court is that "when it is evident there has been a gross mistake as to quantity, and the complaining party has not been guilty of any fraud or culpable negligence, nor has otherwise impaired the equity resulting from the mistake, he may be entitled to relief from the technical legal effect of his contract, whether it be executed or executory." And that principle applies, subject to exception, "whether the sale is of a specific quantity, usually denominated a sale by the acre, or of a specific tract by name or description, ordinarily called a sale in gross;" though, as said, "in a sale by the acre much less variation from the quantity intended to be conveyed would afford evidence of a mistake which would justify interposition of a court of equity to correct it than would be sufficient for that purpose in a sale of the other description." (Young v. Craig, 2 Bibb, 270; Harrison v. Talbot, 2 Dana, 258.)

In Harrison v. Talbot, where the general subject was elaborately considered and authorities collated, sales in gross were thus classified:

1. Sales strictly and essentially by the tract, without reference in the negotiation or in the consideration to any estimated or designated quantity of acres.

2. Sales of like kind in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances or in such manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or howmuchsoever it might exceed or fall short of that mentioned in the contract.

3. Sales in which it is evident from extraneous circumstances of locality, value, price, time and the conduct and conversation of the parties, that they did not contemplate or intend to risk more than the usual rate of excess or deficit in similar cases, or such as might be reasonably calculated on as within the range of ordinary contingency.

4. Sales which, though technically deemed and denominated sales in gross, are in fact sales by the acre, and so understood by the parties.

And it was held that "contracts belonging to either the two first classes, whether executed or executory, should not be modified where there has been no fraud; but in sales of either the latter kinds an unreasonable surplus or deficit may entitle the injured party to equitable relief, unless he has by his...