Humphries v. Haydon
| Decision Date | 21 April 1944 |
| Citation | 297 Ky. 219,179 S.W.2d 895 |
| Parties | HUMPHRIES v. HAYDON et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Montgomery County; W. Bridges White Judge.
Action by George W. Humphries against Laura Haydon and others to recover part of consideration paid for land. From a judgment for defendants, plaintiff appeals.
Reversed.
W. C Hamilton, of Mt. Sterling, for appellant.
Reid Prewitt, F. C. Bryan, and W. C. Clay, Jr., all of Mt Sterling, for appellees.
STANLEY Commissioner.
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 wa 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. Humphries 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 were classified into four kinds and the legal remedies for each was defined. That law has become a rule of property in the sense that it has been recognized by the courts as being a part of every conveyance of land. Many cases have arisen in which there was difficulty in determining whether the particular sales were within the second or the third category. The former embraces a sale by the tract in which a supposed or estimated quantity of land was mentioned or referred to in the contract, but only as being descriptive and under such circumstances as to show that the parties intended to risk the contingency of quantity. The latter embraces a sale in which it was made evident by certain extraneous circumstances, conduct and conversations that the parties did not contemplate or intend to risk more than the usual rates of excess or deficiency in similar transactions or as might reasonably be regarded as within the range of the...
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