Polack v. Steinke

• Decision Date: 03 July 1911
• Citation: 139 S.W. 538,100 Ark. 28
• Parties: POLACK v. STEINKE
• Court: Arkansas Supreme Court

139 S.W. 538

100 Ark. 28

POLACK v. STEINKE

Supreme Court of Arkansas

July 3, 1911

Appeal from Drew Chancery Court; Z. T. Wood, Chancellor; reversed.

STATEMENT BY THE COURT.

This action grew out of an exchange of Missouri lands for lands situated in Drew County, Arkansas, the trade having been promoted, the negotiations made, and the exchange agreed upon, in Nebraska. By its terms appellants were to convey 1900 acres of land in Drew County, Arkansas, and to pay appellee $ 1000 in cash and give him their note for $ 1500 due in 90 days, in exchange for 786 acres of land in Missouri, assuming. the indebtedness upon said land, and to pay $ 500 commission to the broker who arranged the deal.

The complaint alleged that appellee falsely and fraudulently represented to him that the Missouri land contained 786 acres, that he relied upon said representation and was induced thereby to make the trade, that in fact said tract of land contained only 527 acres, which was not known to them at the time, nor until after the money had been paid, the note executed, and it and the first deed delivered to appellee in accordance with the agreement for exchange.

Prayer was for an abatement in the purchase price of the Missouri lands on account of the deficiency in acreage, for an injunction restraining appellee from collecting the note, for an allowance of the said abatement in the price of the Missouri lands in the ratio in which they were exchanged for the Arkansas lands as a failure of consideration of the Arkansas lands. That such quantity of the land, according to the ratio of the exchange as should be allowed as a failure of consideration for the transfer of the Arkansas lands, be set aside and partitioned to them, or that they be awarded damages in the sum of 33 per cent. of the total value of the Arkansas lands conveyed to appellee and of the moneys paid or to be paid and the indebtedness assumed by appellants.

The defendant filed an answer and cross complaint, admitting the ownership of the Drew County lands in 1908 by appellants denying specifically all material allegations of the complaint and especially any false representations made, and alleged that the parties entered into a contract for the exchange of the lands on the first day of October, 1908, and set out a copy of the contract. That by it appellee agreed to convey to plaintiffs the S. E. 1/4 and E. 1/ 2 S.W. 1/4 section 7 and fractional section 18, township 6, range 42 Atchison County, Missouri, subject to the mortgage indebtedness, and the taxes of 1908. That plaintiffs agreed to convey by warranty deed certain lands in Drew County describing them, containing 1900 acres, which would be taken by appellee subject to the mortgage thereon; or, if he should buy the lands in sections 23, 26, 35 and 36, to be sold under mortgage on October 28, 1908, to give a mortgage of $ 7500 back to appellants. That both parties to the contract were to deposit their respective deeds, conveying the lands, with Boehmer & Beckman of Lincoln, Neb., and that appellants should deposit with said firm $ 1000 in cash, and their note for $ 1500 to be delivered when the contract was completed, and that each party should pay said Boehmer & Beckman $ 500, half of the commission due them for procuring the trade. That on the 27th of October he delivered to appellants his deed of the Missouri lands after an examination of said lands by them, and that they immediately recorded said deed and entered into the possession of the lands. That he purchased at the sale on the 28th of October the lands in said sections, and executed and delivered the mortgage and note to appellants as agreed, and fully performed all of the conditions of the contract upon his part, but that they had failed to pay their note of $ 1500, and failed, neglected and refused to deliver to him their deed conveying all of said lands which were to be conveyed by them; that they had not conveyed to him as agreed the S. 1/2 of the S. E. 1/4 of the S.W. 1/4 of the S.W. 1/4, section 14 and the lands in other sections in Tp. 13, S. R. 6 W., in all 360 acres. That the Drew County lands were exchanged on the basis of $ 20 an acre, and on such basis the lands not conveyed to him were of the value of $ 7200 and the equity of redemption not conveyed in the remainder of the lands was worth $ 1000. It challenged the jurisdiction of the court because appellants had not performed their contract, and because they had an adequate and proper remedy at law, and prayed judgment for a specific performance of the contract by plaintiffs for said sum of damages, and the amount of the $ 1500 note, and that same be declared a lien on the lands, etc.

Appellants replied, admitting the execution of the contract under which the exchange was made, as set out in the cross complaint, and that appellee delivered the deeds and the mortgage, and performed his part of said contract; admitted taking possession of the Missouri land, alleging that they did so under the belief and relying upon the representations made by appellee that there were 786 acres of land in the contract, and without any notice of any shortage at the time, and that when they were apprised of the deficiency in acreage they immediately notified appellee and demanded that the shortage be made good; alleged further that they delivered the deed to the agents conveying the lands they agreed to convey under the contract, also $ 1000 in cash, and their note for $ 1500 according to the terms of the contract, and directed said agents to turn over to appellee said deed, money and note, which was done; that said deed contained a reference to the contract, and, after the deal was consummated, Mr. Boehmer requested them to make another deed of correction, only omitting any reference to the contract; that they immediately executed said deed as requested, and have been since ready and willing to deliver same, although it was not necessary to convey the title, and now tender the said deed into court; that, upon discovering the shortage in the lands, they notified defendants they were ready to pay the note for $ 1500 when the error was corrected, and they filed this suit to enjoin its collection until the matter of the shortage was adjudicated. They had been at all times ready to pay said note and deliver said last deed after the adjustment of said shortage. They denied each and every allegation of the cross complaint, not admitting that appellee was damaged in any sum whatever.

The testimony tended to show that the agreement for the exchange of lands was made and the contract signed as alleged in the pleadings; that appellant delivered his deed conveying the lands as agreed by said contract, the appellants delivering with theirs the $ 1000 in money and $ 1500 note; that they immediately recorded their deed and took possession of the Missouri lands, and shortly notified appellee's agents, Boehmer & Beckman, of the shortage in the said tract of land.

There is no mention in the contract of sale nor in appellee's deed to appellants of the Missouri lands of the quantity of lands contained in the tracts, and both said contracts of sale and deed described part of the land as fractional section 18.

The proof tended further to show that appellants were told, before the making of the contract for exchange, that the Missouri lands contained 800 acres; that they were afterwards assured that they contained 786 acres, and furnished plats, showing a description of such lands as containing that number of acres, being shown one plat at the time one of the appellants was on the tract, making an examination thereof, which showed said number of acres and the lands extending to the Missouri River, without any showing of the old river channel in said fractional section 18. That the land described in said contract and deed to appellants only contains 527 acres, if the west boundary is the old channel of the Missouri River, as the proof tends to show it is. Along the west line of the lands, which appellant contends was pointed out to him as the boundary, is a distinct and well-defined channel, the old river bed or a big slough in which was water from 4 to 10 rods wide. Beyond it was a sandbar and island, and said bar across said old channel began forming next to the island and extended from it towards the mainland.

Polack testified: "I do not claim there is any shortage if the sandbar west of the old channel is part of fractional section 18 of the original land, because there is a sufficient number of acres if the sandbar west of the old river channel belongs to the land." He also stated "that his title to the land described had not been disputed, but the county claimed said sandbar and the land to the south in section 19 and to the east in section 17. That at the time of the examination he did not understand that the sandbar was included in his land, but that it was bounded on said old river channel; that Mr. Beckman handed him a plat at the time 'Exhibit A,' saying it was a copy of the survey that Mr. Beckman made before he left the office, and: 'You see it shows 240 acres in section 7 and the N. 1/2 of section 18 is full and in S. E. 1/4 there are 142 acres,' and that in the S.W. 1/4 makes 786, and then I figured the number of acres over as put down on the plat, and it made 786. When we got back to the office at Lincoln, Mr. Beckman handed me Exhibit B, another plat, and said: 'I made a mistake in the number of acres. I see it figures up according to the plat but 786 acres, but doubtless there are enough accretions to make it 800 acres.' Several letters were introduced, showing the notification by Polack of the shortage claimed in the land and a demand for its adjustment. The value of the Missouri sandbar was shown to be $ 5 or $ 10 an...