Drake v. Eubanks

• Decision Date: 19 October 1895
• Citation: 32 S.W. 492,61 Ark. 120
• Parties: DRAKE v. EUBANKS
• Court: Arkansas Supreme Court

32 S.W. 492

61 Ark. 120

DRAKE v. EUBANKS

Supreme Court of Arkansas

October 19, 1895

Appeal from Madison Circuit Court in Chancery, EDWARD S. MCDANIEL Judge.

Decree reversed and cause remanded.

Dan W Jones & McCain for appellants.

There is no conflict in the testimony. Eubanks admits he told defendants there were 209 or 219 acres. The facts in this case are not unlike those in 25 Ark. 102.

OPINION

BATTLE, J.

Peter Eubanks instituted this action against J. J. Drake and B. A Drake to foreclose a lien for purchase money. He alleged, in his complaint, that he sold his farm, containing 177 1/2 acres, to the defendant's for $ 700, of which they paid at the time of the purchase, $ 565, and agreed to give their promissory note for the remaining $ 135, and had failed to do so, or pay it; and asked that the land be sold to pay the same.

The defendants answered, and admitted the purchase for the sum stated, but alleged that plaintiff, in selling the farm, falsely and fraudulently represented, and induced them to believe, that it contained 219 acres, and conveyed it to them by deed as containing that number of acres, when in fact it contained only 177 1/2 acres, and that the deficiency in quantity made a difference in value of $ 200, which they set up as a counter-claim, and asked for judgment against the plaintiff for it.

The trial court rendered a decree against the defendants for the $ 135, and $ 8.10 for interest thereon, and ordered that the land be sold to pay the same.

We find the facts, as shown by the evidence, substantially as follows: Some time in January, 1893, Eubanks represented to the defendants that a farm owned by him, and composed in part of tracts which could only be described by metes and bounds contained 219 acres, and offered to sell it to them for $ 700. He showed them a part of the boundary lines of the land, but not all. The part shown included the lines between his and the lands belonging to David Eady and James McChristian. They made no further investigation, but, believing his representation, they received it as true, accepted his offer, and paid of the purchase money, $ 565, and agreed to execute their note to him for the other $ 135. He executed to them a deed purporting to convey certain lands, including the farm, giving the number of acres contained in each tract, but not the aggregate, and covenanting with them that he "will forever warrant and defend the title to said lands against all lawful claims whatever." And they took possession of the farm. Upon a demand for the promissory note, it was...