Allen v. Luckett

• Decision Date: 21 December 1908
• Citation: 94 Miss. 868,48 So. 186
• Court: Mississippi Supreme Court
• Parties: NATHANIEL R. ALLEN ET AL. v. OLIVER A. LUCKETT

48 So. 186

94 Miss. 868

NATHANIEL R. ALLEN ET AL. v. OLIVER A. LUCKETT

Supreme Court of Mississippi

December 21, 1908

March 1909

FROM the chancery court of Leake county, HON. JAMES F. MCCOOL Chancellor.

Luckett appellee, was complainant in the court below; Allen and others, appellants, were defendants there. From a decree in complainant's favor defendants appealed to the supreme court.

Appellee was the owner of four hundred and eighty acres of timber land, in section 29, township 10, range 7 E., Leake county. The land was wild and situated in a river bottom a considerable distance and in another county from his residence. In January, 1900, he made a trade with appellants to sell them "that part of the east half and the east half of the west half of said section lying north of Pearl river" for the sum of $ 50. He gave appellants a deed describing the property as above, and received part payment at the time, and the balance in March, 1901, on which date another deed was executed; the first deed having been lost before being put of record. In this latter deed, the land was described as "that part of the east half, and the east half of the west half, north of Pearl river, 50 acres, more or less." Afterwards, in 1905, Luckett began this suit charging the above facts and alleging, further, that it was the intention of the grantor to convey only fifty acres of land; and that it was understood that Allen was to purchase land at the rate of $ 1 per acre; that complainant was not familiar with the boundaries of the property, but relied upon the representations of the purchaser that there were only about fifty acres lying north of Pearl river; that complainant, after the execution of the second deed, learned there was about two hundred acres in the tract north of Pearl river, demanded of appellants that they correct the mistake which they refused to do, claiming that they had purchased the entire tract lying north of Pearl river, regardless of the number of acres. The bill prayed for the cancellation of the deed and for a writ of assistance to place complainant into possession of the land upon complainant's refunding the purchase price, with interest.

Motion sustained.

McMillon & Howard, for appellants.

We find very few cases where a suit like this one has been brought by a vendor against his vendee, and these are cases where the vendor was weak mentally or was a non-resident without opportunity to become acquainted with the property, and none of them, we take it are applicable to this case. We find, however, cases brought by vendees against vendors and even in them it is shown to be the duty of the vendee to examine for himself where he had as good opportunity to know the facts and had no special reason or necessity to depend on the vendor's representations, even if the vendor expressed an opinion and it proved erroneous, there is no ground for rescission. Hall v. Thompson, 1 Smed. & M. 443; Beach on the Modern Law of Contracts, §§ 804, 817.

There is no reason to believe from the evidence that Allen knew more about the land than Luckett, who had every opportunity to know its value, number of acres, etc. He had owned it for a number of years, had hunted over it and fished in the lakes and streams running through it, and was quite an extensive dealer in lands on Pearl river; while Allen did not have any better reason or opportunity, to say the least of it, to know the land. He was not county surveyor at the time the sale was made and had never been, but was elected in 1899 and did not begin the duties of this office or run lines until afterwards.

Notice the unreasonableness of appellee's contention; he claims that he wrote the deeds intending only to convey fifty acres and that this fifty acres were to be in the extreme northern part of the section and yet he describes the land in the deed so that all the E. 1/2 and E. 1/2 of W. 1/2 north of the river is included, although the river might have proved to run through the extreme southern part of the subdivisions. In deeds descriptions which are most certain and material, as metes and bounds, will control that which is less so, as quantity. Carmichael v. Foley, 1 How. (Miss.) 591; Potts v. Canton Warehouse Co., 70 Miss. 462, 12 So. 147.

The number of acres were not a condition of the trade and a sale is not voidable because of a mutual mistake as to collateral facts unknown to both parties and as to which the sources of information were open alike to both. Sample v. Bridgforth, 72 Miss. 293, 16 So. 876; 15 Am. & Eng. Enc. Law (1st ed.) 647, note 3.

W. A. Ellis, for appellee.

Luckett was a lawyer and Allen a surveyor at the time of the sale. Lawyers are presumed to know the law of land titles and surveyors are presumed to know courses and distances and the courses of meandering streams and the general topography of the country, to locate corners and run land lines and calculate areas and call them by their right names. These may be violent presumptions, but such is the presumption and common sense of the matter. Really, the means of information and knowledge in the present case, as to the acreage in question and the boundary lines are superior in Allen. He owned adjoining land and actually resided on it and at one time owned a part of the identical land in suit.

Surely there was a mutual mistake and a very great one at that. To put it as mildly as possible there was a great mistake made. Allen had no idea of getting one hundred and ninety-eight acres of land for fifty dollars, and it appears from the depositions of appellee and the charges in the bill, that he would not have under any circumstances sold this tract of...