Hendricks v. Vivion

• Decision Date: 07 May 1906
• Parties: HENDRICKS v. VIVION et al.
• Court: Missouri Court of Appeals

94 S.W. 318

118 Mo. App. 417

HENDRICKS v. VIVION et al.

Kansas City Court of Appeals. Missouri.

May 7, 1906.

1. DEEDS—CONSTRUCTION—CONSIDERATION.

A deed of a tract consisting of several subdivisions, stating as to some of the tracts that there was a certain number of acres "more or less," and the consideration for the entire tract being stated as a single sum, does not show a sale of a definite quantity of land at a given price per acre or a warranty of any certain quantity.

2. EVIDENCE—PAROL EVIDENCE AFFECTING WRITINGS—DEED.

Where a deed states the consideration of the sale of a tract at a certain bulk sum, and the tract is described by metes and bounds, parol evidence is inadmissible to show that the land was sold at a certain price per acre, and that the tract contained a less number of acres than the grantee had paid for.

Appeal from Circuit Court, Boone County; A. H. Waller, Judge.

Action by Ira F. Hendricks against Irvin C. Vivion and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

N. T. Gentry, for appellant. C. B. Sebastian and W. M. Williams, for respondents.

ELLISON, J.

Plaintiff bought defendant's farm in Boone county by written contract of sale, which provided for the execution of a general warranty deed. He alleges that the purchase price was $40 per acre. He received his deed and went into possession, and so remained for nearly two years, when he discovered that the premises did not contain the number of acres which he supposed he had purchased; the shortage being 23.20 acres. He thereupon brought this action against defendant for $928. The trial court sustained a demurrer to the evidence offered by him, and judgment was entered for defendant.

The deed as executed to the plaintiff contained the following description, to wit: "That the said party of the first part, for and in consideration of twenty-two thousand three hundred and thirty dollars, to them paid by the said party of the second part, the receipt of which is hereby acknowledged, do, by these presents, grant, bargain and sell, convey and confirm unto the said party of the second part the following described tract or parcel of land, situated in the county of Boone, in the state of Missouri, to wit: Seventy-seven (77) acres, more or less, the west part of the southeast quarter, west of Cedar creek; one hundred and sixty (160) acres the southwest quarter, both in section twenty-one (21); one hundred and forty (140) acres, more or less, the west part of the northeast quarter west of Cedar creek; one hundred and sixty (160) acres the northwest quarter, and twenty (20) acres, more or less, the northwest part of the northwest quarter of the southeast quarter west of Cedar creek, all in section twenty-eight (28), all in township forty-eight (48) of range eleven (11)." The number of acres mentioned in the description in the contract of sale and in the deed aggregate 557 acres, and the question is: Was there a sale of that number of acres at a given price per acre, or was it a sale of a tract of land as described for a stated price, in solido? The rule seems well settled by the decisions of the Supreme Court that, where the description is by metes and bounds, or (as here) by divisions and subdivisions, into sections, half sections, quarter sections, etc., according to government survey, the description controls, and the number of acres stated must give way. Campbell v. Johnson, 44 Mo. 248; Ware v. Johnson, 66 Mo. 662; Orrick v. Bower, 29 Mo. 210, 214; Baker v. Clay, 101 Mo. 553, 14 S. W. 734. The same thing has been several times decided in this court on the authority of those cases. Wood v. Murphy, 47 Mo. App. 539; Mires v. Summerville, 85 Mo. App. 183. The St. Louis Court of Appeals has also recognized the same rule. Hobein v. Frick, 69 Mo. App. 263. So, therefore, we have no difficulty in concluding that there was not only no sale of 557 acres, as a definite quantity of land, but also that the deed made no warranty of any certain quantity.

Plaintiff offered, and the court excluded, evidence tending to show that he had had the land surveyed by the county surveyor, and that it showed only 534 acres and a fraction. Also that, at the time of the execution of the contract of sale and of the deed, defendant stated to plaintiff that there were 557 acres, and that he sold the farm by the acre at $40 per acre. These offers were properly refused. The deed is the final contract of the parties and must be taken to measure the liability of the party executing it. Davidson v. Manson, 146 Mo. 619, 620, 48 S. W. 635. The deed, being the final consummation of the contract, cannot be varied or altered by prior or contemporaneous understandings, unless there be fraud, accident, or mistake. Mires v. Summerville, 85 Mo. App. 183; Johnston v. Insurance Co., 93 Mo. App. 588; Crim v. Crim, 162 Mo. 544, 63 S. W. 489, 54 L. R. A. 502, 85 Am. St. Rep. 521. If plaintiff desired that the deed show a sale by the acre, or that the tract was warranted to contain a certain number of acres, he should have had such provisions inserted. If a person of ordinary intelligence, in full possession of his faculties, knowingly enters into a contract, he will be bound by its terms, and, even if he does not read it, it will yet measure his rights and liabilities. Railroad v. Cleary, 77 Mo. 634, 46 Am. Rep. 13; O'Bryan v. Kinney, 74 Mo. 125; Mateer v. Railway Co., 105 Mo. 320, 16 S. W. 839. Och v. Railway Co., 130 Mo. 44, 31 S. W. 962, 36 L. R. A. 442; Kellerman v. Railway Co., 136 Mo. 188, 189, 34 S. W. 41, 37 S. W. 828. In Greenfield's Estate, 14 Pa 496, Chief Justice Gibson stated that, "If a party who can read will not read a deed put before him for execution, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in law or equity." In speaking of the same question, the Supreme Court of this state said that, "to permit a party when sued on a written contract to admit that he signed it, but to deny that it expresses the agreement he made, or to allow him to admit that he signed it, but did not read it or know its stipulations, would absolutely destroy the value of all contracts." Crim v. Crim, 162 Mo. 554, 63 S. W. 489, 54 L. R. A. 502, 85 Am. St. Rep. 521. See, also, Johnson v. Ins. Co., 93 Mo. App. 588. In Davidson v. Manson, 146 Mo. 619, 48 S. W. 635, already referred to, the court, through Judge Williams, said: "The deed of conveyance in this case must be taken as conclusive evidence of the terms of the sale. There is no allegation of fraud or that any language not truly expressive of the contract had been inserted in the deed, or that any mistake whatever had been made in writing the same."

It is thus made apparent that since there is no pretense of fraud in putting upon plaintiff a deed, the contents and import of which he did not know, and since he accepted it without artifice, deception, or imposition being practiced upon him, he became legally bound by all of its terms, and that it must measure his rights in any controversy concerning the purchase of the land, uninfluenced by any agreements, representations, or understandings prior to its execution. To his claim that defendant sold him 557 acres, by the acre, at $40 per acre the answer is that he accepted a deed for the land in bulk at a price in solido for the entire tract. The deed, as above set out, shows it to be a complete contract between the parties (made by one by signing and by the other by accepting), wherein the defendant, as grantor, set...