Mahrt v. Mann

• Decision Date: 26 October 1926
• Docket Number: No. 37567.,37567.
• Citation: 210 N.W. 566,203 Iowa 880
• Parties: MAHRT v. MANN.
• Court: Iowa Supreme Court

203 Iowa 880

210 N.W. 566

MAHRT

v.MANN.

No. 37567.

Supreme Court of Iowa.

Oct. 26, 1926.

Appeal from District Court, Woodbury County; R. H. Munger, Judge.

Action in equity by the vendee to recover of the vendor for a shortage in land sold and for a corresponding credit on the mortgage given for the purchase price. The petition was dismissed, and the plaintiff appeals. Reversed and remanded.Hess, Crary & Crary, of Sioux City, and Wormley & Wormley, of Kingsley, for appellant.

Neglestad, Pizey & Johnson, of Sioux City, for appellee.

VERMILION, J.

Certain facts are not in dispute. It thus appears that on January 14, 1914, the parties entered into a written contract for the purchase by the plaintiff from the defendant of a farm for an expressed consideration of $25,500. The land was described in the contract as the fractional northwest quarter of a designated section “containing 150.46 acres, according to the United States government survey, be the same more or less.” On June 17, 1915, pursuant to this contract, the defendant executed and delivered to plaintiff his warranty deed in which the land was described as it was in the contract. The plaintiff paid $3,000 of the purchase price in cash and gave a mortgage on the land to secure the balance of $22,500, which mortgage is still held by the defendant. Interest has been paid on the mortgage, but none of the principal has been paid. A survey of the land in 1923 disclosed the fact that the tract described contained but 124.9 acres. In August, 1924, the plaintiff commenced this action to recover for the shortage in the acreage of the land.

It is fairly established by the evidence that the sale was by the acre and was of 150 acres at $170 per acre, not counting the fraction of an acre mentioned in the contract and deed.

The defendant pleaded the bar of the statute of limitations applicable to actions founded on fraud and all actions not otherwise provided for, and alleged that the cause of actiondid not accrue within five years before the commencement of the action. In reply, the plaintiff alleged that the defendant had been a nonresident of the state for a sufficient length of time to toll the pleaded statute of limitations.

The petition was in two counts. The second count, alleging fraud in the sale of the land, was admittedly not sustained by the proof and requires no consideration.

The appellant contends that the first count of his petition set up a cause of action founded on the written contract for the sale of 150 acres of land, as embodied in the deed, and that it would therefore be barred only at the expiration of ten years. Paragraph 6, § 11007, Code 1924. Appellee insists that this count of the petition stated a cause of action grounded upon mutual mistake, and that the action was barred at the expiration of five years from the time the mistake was, or should have been discovered. Paragraph 5, § 11007. If appellant's contention at this point be sustained, it will be unnecessary to consider questions presented by the pleaded defense of the five-year statute of limitations and matters relied upon by appellant to toll that statute.

The first count of the petition pleaded a purchase of the land by the acre, the execution and delivery of the contract and deed, copies of which were set out; alleged payment for the land as above stated, and that plaintiff relied upon the belief that the tract contained 150.46 acres. It was further alleged “that, as a matter of fact, there was a mutual mistake on the part of plaintiff and defendant as to the number of acres contained in said premises,” and that the actual number of acres was only 124.9, which fact plaintiff did not discover until recently. The prayer of the petition was for judgment for the total amount claimed, or judgment for the excess interest paid and interest thereon, and credit on the mortgage for $170 per acre for each acre the land was short of 150 acres, and that the mortgage be corrected and reformed to show such credit, and for general equitable relief.

[1] In Gardner v. Kiburz, 184 Iowa, 1268, 168 N. W. 814, where the deed was of several tracts, each described as containing a stated number of acres “more or less,” or “more or less according to government survey,” we said:

“The deed made by the defendants, * * * conveys and warrants a farm of 500 acres, * * * more or less. This warranty was not merely of the defendants' title or their right to convey, but, subject only to slight and unimportant inaccuracies, it constitutes at least a representation, if not a warranty, on...