Peck v. Bullard

• Decision Date: 31 July 1840
• Citation: 21 Tenn. 41
• Parties: PECK v. BULLARD.
• Court: Tennessee Supreme Court

21 Tenn. 41

PECK

v.BULLARD.

Supreme Court of Tennessee.

July, 1840.

Jacob Peck filed this bill in the chancery court of Tazewell, in Claiborne county, against Wm. Bullard, for the purpose of rescinding a deed of conveyance of two tracts of land.

Complainant, in the year 1827 (at what precise time does not appear), being in want of a horse, and having a large quantity of wild, uncultivated, and second-rate land in the county of Claiborne, requested and authorized his brother, Adam Peck to sell a portion of his land and procure him a horse therewith. Adam Peck proceeded from the county of Jefferson to the county of Claiborne, and to the residence of defendant, Bullard. The land in controversy lay in the vicinity of Bullard's. Peck proposed to sell, and did sell by metes and bounds, to Bullard, two tracts of land, one supposed to contain fifteen acres, the other 150 acres, for a horse of the value of $75. The land was not surveyed with a view to ascertain the exact quantity which lay within the boundaries, nor does it appear that there was much concern about the exact quantity sold.

The complainant was the owner of much wild land, subject to annual taxes and not advancing in value; and seemed desirous to get clear of some of it. Sometime after this sale, to-wit, on the 23d day of November, 1827, Bullard called on Peck, for the purpose of getting a deed to the premises in controversy. In the meantime, Peck had been informed that Bullard had ““cheated his brother Adam” in the quantity and value of the land sold in the specified boundaries. Complainant so stated to the defendant when he applied for a deed of conveyance. Thereupon Bullard stated to him that, if he desired to put an end to the contract, he was willing that it should be done. This, however, complainant declined doing, and expressed a willingness to adhere to the contract, and executed a deed accordingly.

Complainant alleges in his bill that the number of acres within the specified boundary amounted to upwards of a thousand, and that it was within three miles of the town of Tazewell, and of the value of $1.50 or $2 per acre. He alleges, also, that his brother, Adam, resided in a different county knew but little of the value of the property sold or the quantity thereof; that his agent relied on the representations of Bullard as to both quality and quantity of the land sold, and that Bullard grossly misrepresented both. He further alleges that he did not discover the great quantity sold and the value thereof until within seven years next before the filing of the bill for the rescission of the contract of sale.

The defendant denied that the agent of complainant had relied upon his representations as to either quality or quantity of said land; denied that he made any false representation in regard to either, or that he knew the amount purchased by him at the time of the sale. He denied that the number of acres was so great as represented in the bill, but stated that it was understood by complainant at the time of the execution of the deed, that there was much more land within the specified boundaries than the deed called for, and that the words more or less were inserted in the conveyance with that understanding; that said Peck, on being so informed, stated that it mattered not, the defendant had aided his brother in the sale of his land, etc.

The allegations of the bill were partially, but not satisfactorily, sustained by the mass of proof introduced, which it is not deemed necessary here to set forth. There appeared to be some 800 or 1,000 acres of land conveyed. Adam Peck stated that he relied in a great measure, as to quantity and quality of land sold, on the representation of Bullard, the force of which, however, was much neutralized by the fairness subsequently indicated by the conduct of Bullard.

The cause came on for hearing, on bill, answer, replication, and proof, at the June term, 1840, before Bromfield L. Ridley, chancellor, who, being of the opinion that the complainant had been defrauded by means of the misrepresentations of defendant, decreed that the defendant was entitled to 150 acres of the land in the specified boundaries, and that he have the liberty of selecting the same out of the entire tract, etc. The defendant appealed from the decree.

R. J. McKinney. 1. Peck supposed he was selling and conveying between 150 and 200 acres for a horse of the value of $75. It appears that he was selling between 800 and 1,000 acres. Inadequacy is of itself a sufficient cause for setting aside a conveyance where the inadequacy is so great as at once to shock the conscience. This case comes within the case stated by Lord Thurlow in 1 Bro. C. C. 9, that, to set aside a conveyance, there must be an inequality so strong, gross, and manifest that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it. The facts are proof, of themselves, of fraud and imposition. 2 John. Ch. 23; 10 Ves. 209; 9 Bro. C. C. 175. The civil law went further than the common law, in this respect, and a contract for the sale of land was rescinded by judicial authority, though made in good faith, if the price was below one-half of the value. Fonbl. 47, in note.

2. Here fraudulent misrepresentation is directly proved. But, if...