Humphries v. Haydon

• Decision Date: 21 April 1944
• Citation: 297 Ky. 219
• Parties: Humphries v. Haydon et al.
• Court: United States State Supreme Court — District of Kentucky

Page 219

297 Ky. 219

Humphries v. Haydon et al.

Court of Appeals of Kentucky.

April 21, 1944.

1. Courts. — The law governing legal remedies as to quantity of land sold in gross, as laid down definitely in an opinion 110 years ago, has become a "rule of property" in the sense that it has been recognized by courts as being part of every conveyance of land.

2. Vendor and Purchaser. — Where land is sold in gross, if difference between quantity that it was represented to contain and actual quantity is 10% or more, the party suffering loss is entitled to redress, which in an executed transaction is ordinarily the right to recover the proportionate sum paid.

3. Vendor and Purchaser. — Evidence authorized recovery by buyer for deficiency in amount of land sold in gross, where actual acreage was nearly 13% less than specified in deed.

4. Vendor and Purchaser. — Where land is sold in gross and a definite acreage is declared, showing that such declaration was intended to be only descriptive and that the parties intended to risk the contingency of quantity must be very clear in order to prevent recovery for differences in quantity.

5. Evidence; Mortgages. — The general rule that terms of a writing, plain and certain, cannot be varied or modified by parol evidence, applies with all its strictness to deeds, except one executed as security for payment of a debt.

6. Evidence. — All prior or contemporaneous oral negotiations and representations become merged in a deed and it cannot be altered or modified, under conclusive presumption that the whole engagement was embodied in the deed.

7. Appeal and Error; Evidence. — The rule denying any effect of parol evidence upon a written contract is not merely a "rule of evidence" but a "rule of positive law," and hence objection need not be made to introduction of such oral testimony as basis for reversal on appeal.

Appeal from Montgomery Circuit Court.

W.C. Hamilton for appellant.

Reid Prewitt, F.C. Bryan, and W.C. Clay, Jr., for appellees.

Before W. Bridges White, Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

This is an action for the recovery of $673.65, the proportionate part of the consideration paid for a tract of land because of deficiency in the quantity. The question whether the sale was as a unit, irrespective of the acreage, the parties risking the contingency of more or less area than that described, or was a sale in gross with the purchaser relying upon representations as to the quantity was submitted to a jury. Marr v. Lawson, 290 Ky. 342, 161 S.W. (2d) 42. The verdict and judgment were for the defendants and the plaintiff appeals.

The defendants, George Haydon and wife, elderly people, owned and lived upon a small farm in Clark County. It was placed in the hands of real estate agents for sale, apparently by their son whose right to do so was not questioned. The plaintiff, George W. Humphries, looked over the place and had the lines pointed out to him. He testified that Mr. Haydon told him upon several occasions that it contained "something less than 36 acres." It was priced at $6,500. No sale was had at this time. The testimony of Mr. and Mrs. Haydon is to the effect that Humphries was told only that their deed called for such a quantity. But the real estate agent confirms Humphries, at least in that both he, the agent, and the seller's son told him of the area. About three weeks later the agents negotiated a three-way transaction in which the Haydons acquired a house and lot in Mt. Sterling from Noah Hughes and Humphries acquired the farm from the Haydons for the sum of $5,200. Humpries says that he had nothing to do with the town property sale. Hughes says that he had nothing to do with the sale of farm to Humphries. Mr. and Mrs. Haydon say they knew Humphries was to get their farm but neither seems to have clearly understood the negotiations or transaction. At any rate, the parties came together on November 10, 1941, to close the deals and exchange deeds and pay the respective considerations. Hughes conveyed his property to the Haydons. Humphries made his notes payable to the Haydons and his check for the difference of $575 to Hughes. The Haydons assigned the notes to him also. They executed a deed to Humphries which described the property by courses and distances and concluded "containing, exclusive of said graveyard, 35.154 acres of land." Several months later a survey revealed that the tract contained only 30.6 acres, a deficiency of 4.543 acres.

The law of Kentucky with reference to the quantity or area of land sold in gross was laid down definitely by Chief Justice Robertson 110 years ago in Harrison v. Talbot, 32 Ky. 258, 2 Dana 258. Transactions...