Kelly v. Riley et al.

• Decision Date: 02 October 1883
• Citation: 22 W.Va. 247
• Parties: Kelly v. Riley et al.
• Court: West Virginia Supreme Court

22 W.Va. 247

Kelly

v.Riley et al.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 1883

Decided October 2, 1883.

1. A court of equity has jurisdiction to decree compensation for a

deficiency in the quantity of land sold, although the land has been conveyed by deed with general warranty and the purchasemoney has all been paid. (p. 248.)

2. "Where by reason of fraud of the vendor in misrepresenting the quantity of land sold, the vendee is entitled to compensation, or abatement from the purchase-money, on account of deficiency in the quantity of land, courts of equity and courts of common law have concurrent jurisdiction to grant relief. (p. 250.)

3. Where a person has made a sale of land in gross, at a specified price, upon an unqualified statement that it contains a definite quantity or specified number of acres, it will be held prima facie that the vendee was influenced to pay or agree to pay the price specified because of such statement; and if it is afterwards established that there is a deficiency in the quantity in excess of what may be rightfully attributed to the usual inaccuracies in surveying, the vendor, in the absence of all other proof, will be presumed to have committed a fraud on the rights of the vendee by such statement of the quantity, and a court of equity will for this reason grant relief to the vendee for such deficiency. (p. 251,)

4. The general rule in such cases is, that the compensation allowed for the deficiency in quantity, shall be at the rate of the average price paid or agreed to be paid for the entire tract purchased. (p. 251.)

The facts of the case of the Court.

are sufficiently stated in the opinion

J. G. Schilling for appellant.

A. B. Mills and Warren Miller for appellees.

Snyder, Judge:

W. D. Kelly, on May 2, 1882, brought his suit in equity in the circuit court of Roane county against G". W. and Wm. Riley to recover compensation for deficiency in the quantity of a tract of land sold and conveyed to him by said Rileys. On December 4, 1882, the defendants tendered a general demurrer to the plaintiff's bill which was overruled by the court and a rule taken against the defendants to answer within thirty days. Subsequently, on April 4, 1883, the defendants moved the court to dismiss the plaintiff's suit for the want of equity jurisdiction, which motion the court sustained and dismissed the suit with costs. The plaintiff appealed to this Court.

The material allegations of the plaintiff's bill are, that in consideration of seven hundred dollars the defendants sold, and conveyed to the plaintiff by deed with general warranty, dated January 23, 1879, a tract of land in Roane county containing one hundred and one and one half acres described by metes and bounds; that the defendants fraudulently represented to the plaintiff that said tract contained one hundred and one and one half acres and the plaintiff relied on said representation; that believing there was that quantity in the tract the plaintiff paid the purchase-money in full; that some time after the purchase the plaintiff by actual survey ascertained that the boundaries of said tract contained but eightyfour acres, showing a deficit of seventeen and one half acres in the quantity; that said deficiency, according to the average value of the whole tract, is worth one hundred and twenty dollars and seventy-five cents; and that by reason of said fraudulent representation and said deficiency in the land the plaintiff has been injured to the value of one hundred and twenty dollars and seventy-five cents; and that the plaintiff informed defendants of said deficiency and demanded compensation therefor and they have failed to make him any compensation. The prayer is that defendants be required to compensate the plaintiff for said deficiency of land and for general relief. The bill is sworn to by the plaintiff.

It is claimed by the counsel for the appellees that the cause was properly dismissed, because there is nothing alleged in the bill of which a court of equity can properly take cognizance, and that the circuit court should have sustained the demurrer in the first instance. As authority for this position the counsel cites Robertson v. Hogshead, 3 Leigh 667, and Koger v. Kane, 5 Id. 606. The first of these cases was a suit the hill of which averred that the defendant had fraudulently represented that a certain spring on the land purchased was never-failing and afforded an ample supply of water at all seasons, and prayed for a rescission of the contract of sale and for general relief. The court held that the plaintiff, upon the proofs, was not entitled to a rescission, and that as the alleged fraud consisted simply of a claim for unliquidated damages he could not he relieved in a court of equity. The opinion of the court shows, clearly, that jurisdiction was denied in that case, because the compensation claimed rested entirely upon a claim purely for unliquidated damages of a character which a court of equity could not ascertain. In the other case of Koger v. Kane, the, jurisdiction of a court of equity to grant relief for a deficieneg in the quantity of land is fully recognized. In its opinion the court draws a distinction between a case in which the injury sustained consists in a deficiency of quantity within the specified limits and one in which there is a want of title to a part of the land, within those limits. Upon the special facts in that particular case a doubt is expressed as to equity jurisdiction in the latter event; but as to the former-a deficiency in the quantity the court says:" The jurisdiction of a court of equity to enjoin the collection of purchase-money of land, after conveyance executed, on the ground of a deficiency in quantity, the contract being a sale by the acre; is not now to be questioned.", 5 Leigh 606. If equity has jurisdiction in such a case to enjoin the collection of purchase-money after conveyance, it would seem to be clear that it ought to grant relief when the purchase-money has been paid as no objection to its jurisdiction could be urged in the one case which would t equally apply to the other. Blessing v. Beatty, 1 Rob. R. 287.

In Castleman v. Veitch, 3 Rand. 598, i: was held, that: "A claim for a deficiency in quantity of land sold, gives jurisdiction to a court of equity." In its opinion the court says: "Now, even admitting that the appellants' bill did not...