Hodges v. Denny

• Court: Alabama Supreme Court
• Writing for the Court: CLOPTON, J.
• Citation: Hodges v. Denny, 86 Ala. 226, 5 So. 492 (Ala. 1889)
• Decision Date: 26 February 1889
• Parties: HODGES ET AL. v. DENNY.

5 So. 492

86 Ala. 226

HODGES ET AL. v. DENNY.

Supreme Court of Alabama

February 26, 1889

Appeal from chancery court, Chambers county; S. K. MCSPADDEN Chancellor.

The bill in this case was filed by the appellee, William S Denny, as transferee of the original vendor of the lands in controversy, J. C. Pearson. The bill made the appellant, C C. Hodges, the administrator of J. C. Pearson, and the heirs of said Pearson parties defendants. The only question raised is the abatement of the amount agreed to be paid by the defendant Hodges, as purchase money for the land, upon which it is sought to charge a vendor's lien in favor of the complainant.

J. M. & E. M. Oliver, for appellants.

N. D. Denson, for appellee.

CLOPTON J.

In a suit by a transferee of a promissory note against the personal representative of the maker, the transferrer is not a competent witness, on the part of the transferee, as to any transaction with or statement by the deceased maker. A transfer of the subject-matter of the suit does not operate to take the living party out of the exception to the statute rendering parties competent witnesses. Mutuality in its operation is the policy and purpose of the statute. Its provisions exclude the living from testifying to any transaction between himself and the dead, in all cases where the effect of the evidence is to diminish the rights of the deceased, or those claiming under him, and where the presumption exists that the dead, if living, could explain, qualify, or contradict. Any other construction of the statute would tend to introduce the corrupting influences in the administration of the law which it is the design of the exception to prevent. The vendor, who transferred to the complainant the purchase-money notes, having died, the defendant, who is the vendee, comes within the spirit and policy of the statute. The chancellor did not err in excluding his testimony as to transactions and statements between himself and the deceased vendor. Boykin v. Smith, 65 Ala. 294; Miller v. Cannon, 84 Ala. 59, 4 South. Rep. 204.

Appellee seeks by the bill to charge a vendor's lien on land sold defendant by J. C. Pearson. The defendant seeks, by cross-bill, an abatement of the amount agreed to be paid, on account of an alleged deficiency in the quantity of the land; alleging that it was sold, and the gross sum of the purchase money ascertained, by the price per acre, and that Pearson misrepresented the number of acres. Defendant's right to abatement materially and mainly depends on the interpretation of the contract, as shown by the bond for title,-whether the phrase contained therein, stating the number of acres, is merely descriptive, or a distinct averment or stipulation as to the quantity. Contracts for the sale of land consist generally of two classes,-a sale of a specific tract, described by metes and bounds, and a sale of a specified quantity; a sale in gross, and a sale by the acre. When, in a conveyance, the land is described by certain and definite boundaries, in the absence of fraud or gross and palpable mistake, such description is ordinarily regarded as conclusive; and, when followed by a representation of quantity, such representation is considered as cumulative description. As to contracts of the first class, this rule has been placed beyond the pale of further discussion by the decisions of this court. It has been repeatedly affirmed that when land is described in a bond or deed by well-defined boundaries, such as by its designation according to the government survey, or by natural or artificial metes and bounds, or courses and distances, open to observation, and not subject to mistake, a statement of quantity following the description is regarded a part of the description, and not of the essence of the contract. By such sale both parties take upon themselves the risk as to quantity. The purchaser is entitled to all the land included in the tract specifically described, though greater than the quantity stated, and the vendor is not liable if there be a deficiency. In such case, in the absence of fraud, or gross and palpable mistake, or an omission to truly express the contract, parol proof, varying or contradicting the terms of the conveyance, is inadmissible, even in equity. Wright v. Wright, 34 Ala. 194; Carter v. Beck, 40 Ala. 599; Rogers v. Peebles, 72 Ala. 529; Hess v. Cheney, 83 Ala. 251, 3 South Rep. 791.

But this rule has no application to contracts of the second class. A different rule governs when it is apparent from the conveyance that the land is not described by definite and certain boundaries, which furnish the standard of quantity; and the representation of the number of acres is an essential ingredient of the contract, regulating the aggregate sum to be paid. In such case, if there be a material and substantial variance, equity will place the parties in the same relative condition in which they would have stood had the real quantity been known at the time of the bargain. Winston v. Browning, 61 Ala. 80; Harrison v. Talbot, 2 Dana. 258. Whether the statement of the quantity in a bond or deed shall be regarded as descriptive, or of the essence of the contract, largely depends upon the manner of its use, and its connection with other descriptive parts.

The foregoing principles are of easy application to the sale shown by the bond in question. There is an evident...