Rich v. Scales

• Decision Date: 02 August 1905
• Citation: 91 S.W. 50,116 Tenn. 57
• Parties: RICH v. SCALES et al.
• Court: Tennessee Supreme Court

91 S.W. 50

116 Tenn. 57

RICH v. SCALES et al.

Supreme Court of Tennessee.

August 2, 1905

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Suit by B. Rich against D. C. Scales and others. From a decree of the Court of Chancery Appeals in favor of complainant, defendants appeal. Reversed.

Jas. S Pilcher and Chas. W. Rankin, for appellants.

Stokes & Stokes, for appellee.

NEIL J.

The controversy in the present case arose on the deed appearing below and the negotiation just prior thereto, and on measurements made shortly after the deed was executed. The deed referred to was as follows:

"For and in consideration of the sum of $5,000 paid and secured to us by B. Rich as follows: [stating terms of payment], D C. Scales and wife, Grace C. Scales, and Mrs. L. J. Rankin (widow) have bargained and sold and by these presents do transfer and convey unto the said B. Rich, his heirs and assigns a certain tract or parcel of land in Davidson county, Tennessee, as follows:

"Being a triangular shaped lot in South Nashville, fronting on the west side of the N., C. & St. L. Ry. and being bounded on its westerly side by Brown street and on its southerly side by Houston street. Said lot has a frontage on Brown street of 315 feet and on Houston street of 512 feet.

"For the conveyances of said property to the within named grantors see Book 146, p. 396; Book 146, p. 397; Book 146, p. 398; Book 225, p. 313, and Book 225, p. 195--in the register's office of said Davidson county, Tennessee, to which reference is here made.

"Said lot being a part of the Humphrey, Houston, and Martin plan of lots as registered in Book 36, p. 117, in said register's office.

"To have and to hold the said tract or parcel of land with the appurtenances, estate, title, and interest thereto, belonging to the said B. Rich, his heirs, and assigns, forever. And we do covenant with the said Rich that we are lawfully seised and possessed of said land in fee simple, and have a good right to convey it and the same is unincumbered.

"And we do further covenant and bind ourselves our heirs and representatives to warrant and forever defend the title to said land to the said B. Rich, his heirs, and assigns against the lawful claims of all persons whomsoever.

"Witness our hands this 21st day of November, 1902.

D. C. Scales,

"Grace C. Scales,

"L. J. Rankin."

While the negotiations were in progress, and before the deed was executed, the vendee went upon the premises and examined them. This examination disclosed to him the following facts: On one side of the triangle lay Brown street, on another side Houston street, and on the remaining side, the front of the lot, was the roadway of the railroad company. This roadway abutted upon the lot in the form of an embankment thrown up along the entire length of its frontage; said embankment extending 50 feet westward from the center of the track. This embankment was elevated above the lot in question one foot in height, and was plainly noticeable. The effect of this configuration was a triangular piece of ground distinctly lower than the railway land, and bounded on one side by the railway embankment just referred to and on the other two sides by the two streets.

The foregoing lot was the property which the vendee intended to buy and which the vendors intended to sell, and it was, in fact, bought and sold.

The deed, however, gave the length of the line on Brown street as 315 feet, and on Houston street as 512 feet. In fact, however, a survey which the vendee caused to be made after he had received his conveyance demonstrated that the line of the triangle above described, running along Brown street, was only 279 feet, instead of 315 feet, and the line on Houston street was 443 feet, instead of 512 feet, and the line along the railroad was only 52.4 feet, instead of 60 feet; the latter being the distance of frontage which the lot would have had on the railway if the other two dimensions had actually existed as stated in the deed.

Before consummating the purchase, the vendee had furnished him an abstract of title. Several of the deeds gave the dimensions of the lot as to the length of the lines with the same definiteness exhibited in the deed above copied. One of them, however, the earliest deed in the chain of title, gave the distances as about 315 feet on Brown street and about 512 feet on Houston street. This deed also contained a diagram of the lot and the adjoining streets, which showed plainly that the line on Houston street could not be more than about 440 or 445 feet.

However, the Court of Chancery Appeals have found that, notwithstanding the information conveyed to the vendee by the above-mentioned deed and by his own occular examination of the area of the lot, he believed that the lines were of the lengths, respectively, above indicated.

So the substance of the finding of facts by the Court of Chancery Appeals, binding on this court, is that the vendee obtained by the conveyance the very lot which he intended to buy and which the vendors intended to sell, and that this purchase was made after an actual inspection of the property, but he believed that the deed stated the length of the lines correctly.

The Court of Chancery Appeals also found as a fact that the Nashville, Chattanooga & St. Louis Railway Company were in the actual adverse possession of the strip of land now in controversy when the vendee made his inspection, and when the deed was made, and had been in such possession for more than seven years.

The Court of Chancery Appeals finds that there are 18,842 square feet less area in the lot conveyed than there would be in a lot running 315 feet on Brown street and 512 feet on Houston street. That court estimated that on the basis of square feet the property at the contract price expressed in the face of the deed was worth 6 2/3 cents per square foot. They accordingly rendered a decree in favor of the complainant for $1,168.20 as shortage on the land.

The bill was filed to recover on the covenants of the deed. This pleading, after stating complainant's version of the facts, proceeds:

"Complainant is advised that he has the right to elect whether he will sue for a rescission of said contract or retain so much of the property to which the title is clear and sue his vendors on the covenants in their deed for the property conveyed, and to which they had no title that was free and unincumbered, and complainant elects to pursue the latter course, and retain so much of said lot that was owned by vendors and conveyed to him by their deed, and seek a recovery against them for the value of the property conveyed, and to which they did not have a free and unincumbered title."

After the survey was made by the vendee and the lines were discovered to be not so long as stated in the deed, and before the filing of the bill, the vendors offered to rescind the transaction and return to the vendee the whole consideration paid, consisting of cash and notes and some real estate that had been conveyed to them by the vendee. He declined, however, to accept the rescission, and elected to stand upon what he deemed to be his strict legal rights, and filed the bill as above stated.

An appeal having been prayed from the decree of the Court of Chancery Appeals to this court, the question to be determined is whether the decree of that court was correct in view of the pleadings and the facts found.

Our cases establish the following principles upon the general subject to which the present controversy belongs: Where land is sold by the acre, it is a matter of course to grant relief for either an excess or a deficiency; and, in determining whether the sale was by the acre, the deed will not control but the parties may go behind it and prove the contract of which the deed was intended by the parties as an expression. Where the sale is in gross,...