Harrison v. Talbot

• Citation: 32 Ky. 258
• Parties: Harrison v. Talbot.
• Decision Date: 10 October 1834
• Court: Court of Appeals of Kentucky

32 Ky. 258

Harrison v. Talbot.

Court of Appeals of Kentucky.

October 10, 1834

FROM THE CIRCUIT COURT FOR NELSON COUNTY.

Mr Crittenden for Appellant.

Mr. C A. Wickliffe for Appellee.

OPINION

ROBERTSON CHIEF JUSTICE.

In March, 1829, Burr Harrison sold and covenanted to convey to Daniel Talbot, " all that tract or parcel of land," near Bardstown, " on which Col. Andrew Hynes died," describing it by its boundary, and designating it as containing four hundred acres; and Talbot covenanted to pay six thousand dollars, " for and in full consideration for the absolute purchase of the said tract or parcel of land."

Sale of a tract of land, described in a covenant for a conveyance, by its boundaries, and as containing 400 acres for $6,000 " full consideration."

Alfred W. Hynes, to whom the tract had been devised by Andrew Hynes his father and the father-in-law of Harrison, also covenanted to unite in the conveyance of the legal title to Talbot.

Having ascertained by actual survey, after he was put into the possession of the land, that the boundary contains four hundred and ninety acres, Talbot filed a bill in chancery to coerce a conveyance for the entire tract for the stipulated price--six thousand dollars. Harrison insisted that the sale was, in fact, not by the tract in gross, but by the acre, at fifteen dollars an acre; that, from a family tradition, the tract had been called one of four hundred acres and was, as a matter of course, estimated in the contracts as of that quantity or thereabouts. He therefore resisted the prayer for a decree for the whole four hundred and ninety acres, at the price of six thousand dollars; but proposed to make a title, either to four hundred acres for the six thousand dollars, or to the four hundred and ninety acres for a proportionate consideration.

There are 490 acres--and the vendee files his bill for a conveyance of the whole for the six thousand dollars. The vendor insists that the sale was in fact, by the acre, at $15, the parties being under a mistake as to the quantity which, from a family tradition, had been called 400 acres; and that he had a right to retain the surplus, unless he was paid for it.

After sundry depositions had been taken, to prove various extraneous facts on each side, the circuit court decreed a specific execution of the contract for the entire tract of four hundred and ninety acres, upon full payment of the stipulated consideration of six thousand dollars.

Circuit court decrees a conveyance of the 490 acres, for $6,000.

That decree is now called in question by this appeal.

In the absence of proof of fraud or of mistaken drawing a contract, or subsequent modification of its technical import--a written contract must have the same effect in chancery, as at law--parol testimony, to change its effect, being inadmissible.

The main question in this case.

The terms of the written memorial import, according to the established construction a sale in gross; and the canons of interpretation are the same and should have an equal effect in every forum. Wherefore, as there is no proof of fraud or mistake in the reduction of the agreement to writing, or of any subsequent waiver or modification of the technical import of that contract, and as, without some such proof parol testimony is inadmissible in equity, as well as at law, for contradicting or explaining the legal effect of written evidence, we shall consider the contract in this case as a sale of a tract of land supposed to contain four hundred acres more or less.

Thus considering the contract, what is the decision of conscience and of established principles of equity?

Adjudged cases will, we think, when properly collated and scrutinized furnish a clue for the satisfactory solution.

In the case of " Quesnal v. Woodlief et al." decided by the Court of Appeals of Virginia in 1796, and which may be found in a note to the 2 vol. of Henning and Munford, page 173--Woodlief having, for a stipulated sum, sold to Quesnal a tract of land described as containing eight hundred acres, and afterwards, without an actual survey, made a deed for that quantity, " more or less; " but Quesnal having afterwards ascertained that the boundary contained only six hundred and eight acres, one rood and thirteen perches, the court decided that he should be exonerated from paying for the deficiency in the estimated quantity, " that deficiency being (in the language of the opinion rendered) too great for a purchaser to lose under an agreement for a reputed quantity, notwithstanding the words " more or less" inserted in the deed, which should be restricted to a reasonable or usual allowance for small errors in surveys and for variations in instruments."

In Virginia it has been decided that where a very great difference (33 per cent.) has been discovered, between the actual, and the estimated quantity of land sold in gross, the contract may be presumed to have been founded on a gross mistake as to quantity, and the injured party may have relief in chancery. And, also, that where the difference is not greater than a purchaser in gross might have anticipated, there can be no relief.

The same court decided in " Nelson v. Matthews," 2 Henning and Munford, 164, that as Matthews had sold and conveyed in gross to Nelson a tract of land represented to contain five hundred and seventy-two acres and two smaller adjoining tracts described as containing altogether two hundred acres, and the larger tract containing in fact only five hundred and forty-four acres, had been conveyed to Nelson as containing five hundred and fifty-two acres, and as one of the small tracts of forty-one acres, was entirely lost, and the other estimated at one hundred and fifty-nine acres was covered to the extent of fifty-one acres, by the larger tract--Nelson should have a reduction from the stipulated price for the amount of the average value of forty-one acres, and fifty-one acres, and also of twenty acres, the difference between the quantity of the large tract, as described in the deed to Matthews, and as described in the deed from him to Nelson; but the actual deficiency being twenty-eight acres, nothing was allowed for the residual eight acres, because, in the language of the court, " such a deficiency (was) not more than a purchaser in gross might reasonably expect."

In that case it is evident that the deduction for the twenty acres was allowed on the ground that as Matthews had represented to Nelson that the large tract contained that much more than the deed to himself for the same tract described, he should be presumed guilty, to that extent, of a fraud; and as relief was not given to the extent of the difference between the actual quantity--five hundred and forty-four acres, and that described in the deed to Nelson--five hundred and seventy two acres, we may infer that a deficiency of twenty-eight acres in a tract supposed to contain five hundred and seventy-two acres was not deemed sufficient to justify relief on the ground of mistake. But it is equally, and even more clear, that in the opinion of that court, a deficit of thirty-three per cent. should, per se, entitle to relief, on the ground of gross and palpable mistake, because such a deficit was the only expressed ground for granting relief as to one of the smaller tracts.

In Young v. Craig 2 Bibb, 270, compensation was sought by Craig for fifty-six acres of surplus beyond the estimated quantity in a tract of land which he had conveyed to Young as containing four hundred and twenty-five acres, " be the same more or less." But relief was denied by this court, on the ground that in such a case such an excess was deemed insufficient to entitle the vendor to relief.

Review of the various Kentucky decisions upon alleged mistakes in the quantity of land sold.--Result, that, in an executed contract, where there has been a gross mistake in the quantity sold, for " more or less," the complaining party who has practiced no fraud, nor any culpable negligence, nor impaired his equity in any other way, is entitled to relief in chancery. And the condition of the injured party is still more favorable where the opposite party comes into chancery for a specific execution--for then, he must show that he has a clear right to it, equitably and conscientiously; otherwise, he will be left to his legal remedy.

As that is a leading case, and as the opinion, like every other delivered by that eminent jurist, the late Chief Justice Boyle, is distinguished by a peculiar precision and perspicuity, the following brief extracts will not be deemed superfluous.

" There is no novelty or peculiarity in the principles upon which questions of this sort depend. In contracts of this kind, the same good faith is required and the same responsibility attaches to its violation which law and reason prescribe in every description of contract. If, through fraud or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with, or the purchaser to receive, the injured party would be entitled to relief, in like manner as he would be for an injury produced by a similiar cause in a contract of any other species." " Contracts for the sale of land may be considered of two descriptions: First, where the sale is of a specific quantity, which is usually denominated a sale by the acre; and second, where the sale is of a specific tract, by name...