Alexander v. Hicks

• Decision Date: 22 January 1942
• Docket Number: 3 Div. 361.
• Citation: Alexander v. Hicks, 242 Ala. 243, 5 So.2d 781 (Ala. 1942)
• Parties: ALEXANDER v. HICKS et al.
• Court: Alabama Supreme Court

5 So.2d 781

242 Ala. 243

ALEXANDER v. HICKS et al.

3 Div. 361.

Supreme Court of Alabama

January 22, 1942

Appeal from Circuit Court, Autauga County; Arthur Glover, Judge.

Gipson & Gipson, of Prattville, for appellant.

Booth & Duncan and Guy Rice, all of Prattville for appellees.

BOULDIN Justice.

Bill by mortgager of real estate against the mortgages for accounting and redemption.

On October 29, 1919, appellees sold and conveyed to appellant the tract of lands involved.

The price was $10,087.50, of which $1,000 was paid cash, balance secured by mortgage and instalment notes.

The bill was filed January 20, 1936. The final decree, May 13 1941, decreed a right of redemption, and without a reference the trial court proceeded to ascertain and decree the amount of the mortgage debt as of the date of the decree $11,246.82. This procedure appears to have been in keeping with the wishes of the parties.

The amount so found is challenged on this appeal.

Many controverted issues of law and fact were presented. Among them the right of abatement of the purchase money because of a shortage of acreage, the amount received by the mortgagees from sales of standing timber on the lands, the rents for which the mortgagee in possession for many years should account, and waste or deterioration of the property from neglect, & c.

The trial court made no special finding on any of these issues, and stated no account disclosing how he arrived at the sum decreed. The witnesses were not examined before him. Our statute provides this court shall review the cause without a presumption in favor of the decree. We call attention to this situation for the purpose of suggesting to counsel and trial judges that in cases of accounting, such as this, equity procedure has wisely provided for a reference with appropriate instructions, wherein the register or special referee may see and hear the witnesses, state an account disclosing his findings on the several issues; with further procedure for facilitating a review. Certain presumptions support his findings of fact. Such is the better practice.

Without committing this court to any construction of our statute, which would deny our right to reverse the cause, and order a decree of reference in such cases, we proceed to consider the entire record and render a decree finally settling the litigation.

We deal first with the question of abatement of the purchase price for shortage in the acreage. The deed recites: "Said lands containing in the aggregate eight hundred and seven (807) acres, more or less." A later survey of the lands disclosed the true acreage to be 757.50 acres, a shortage of 49.50 acres.

Complainant's testimony tends to show the lump price of $10,087.50, was fixed on the assumption that the tract contained 807 acres, and the agreed price was $12.50 per acre. Respondent's testimony tended to show the lump price $10,087.50 was for the tract within well defined boundaries, be the same, more or less than the acreage named. 807 acres at $12.50 per acre is precisely $10,087.50. These odd figures are quite conclusive that the price was arrived at in this way.

The words "more or less" in this connection have been often construed.

"The words 'more or less' usually mean 'about,' 'substantially,' or 'approximately,' and imply that both parties assume the risk of any ordinary discrepancy, such as unequal acreage of government subdivisions, or estimates on small fractions bounded by the meanderings of a stream. If the price is stated as a lump sum, and not so much per acre, it implies prima facie that the parties have so contracted, and no survey is contemplated to ascertain the exact acreage.

"But * * * if it clearly appears the parties contracted upon the basis of acreage, and the lump price was agreed to upon a mutual mistake grossly affecting the consideration upon which the agreed price was fixed, equity will grant appropriate relief." Hill v. Johnson, 214 Ala. 194, 195, 106 So. 814, 816.

In 26 C.J.S. Deeds, § 102, the rule is thus stated: "The rule as to the effect of the use of the words 'more or less' is sometimes stated in terms to the effect that such words are intended to cover slight or unimportant inaccuracies, and, in the case of a sale by the acre, the words are usually construed to cover merely such inaccuracies."

Where, as here, the lump sum price was based on a price per acre, and this appears from the face of the deed, and there is a substantial shortage of acreage disclosing a mistake entering materially into the transaction, and no conflicting equities have intervened, we hold the grantee entitled to a proportionate abatement of the purchase money. Complainant is entitled to an abatement to be credited on the mortgage debt in the sum of $618.75 as of the date of the mortgage, October 29, 1919.

Touching timber sold from the lands by consent of parties, the burden was on complainant to show the amounts to be credited on the mortgage debt.

The evidence is in sharp dispute as to whether the sale of timber in 1923 was for $2,000 or $1,500. The latter sum was credited on a purchase money note. The statement furnished by respondents to Alexander Brothers, the brothers of complainant looking after her affairs, showed the annual interest of 1928--$395.25. This sum represented 6% interest on a principal of $6587.50, being the amount of the mortgage debt less $2,500, of which $1,000 was paid in money by the mortgagor. The other $1,500 must needs represent the proceeds of the timber. Without further detail we conclude complainant has not sustained her claim for credits on account of timber sold other than $1,500 for sale in 1923, and $275 for sale in 1931.

The rents chargeable to the mortgagee in possession present the most difficult...