Ryan v. Batchelor

• Decision Date: 13 June 1910
• Citation: 129 S.W. 787,95 Ark. 375
• Parties: RYAN v. BATCHELOR
• Court: Arkansas Supreme Court

129 S.W. 787

95 Ark. 375

RYAN v. BATCHELOR

Supreme Court of Arkansas

June 13, 1910

Appeal from Ouachita Circuit Court; George W. Hays, Judge; affirmed.

Judgment affirmed.

Lamb & Caraway, for appellant.

Appellant was entitled to judgment for the amount sued for. 61 Ark 120; 19 Ark. 102; 14 N.Y. 143; 133 N.Y. 227; 30 N.E. 974; 10 L. R. A. 656.

Gaughan & Sifford, for appellee.

In the absence of fraud, the buyer takes the risk of quantity when the words "more or less" are in the descriptive part of the deed. 19 Ark. 108. Appellant had no right to rely on statements made by appellee. 47 Ark. 165.

OPINION

FRAUENTHAL, J.

The appellee sold to appellant a tract of land in Craighead County, and conveyed same to him by a warranty deed. In the deed the land was described as follows: "The fractional south half of the northwest quarter of section eleven township fourteen north, range three west, being all of said subdivision lying north of the Kansas City, Fort Scott & Memphis Railway, containing seventy acres more or less." About two years after the purchase was made the appellant had the land surveyed, and claimed that there were only 57.23 acres in the tract. He then instituted this suit against the appellee, and in his complaint alleged that the appellee had falsely represented that the tract contained 72 acres when as a matter of fact it only contained 57.23 acres; and he sought to recover by way of damages the excess of price which he claimed he was induced to pay for said land by reason of said false representation. The case was tried by the court sitting as a jury, who made a finding of fact and of law in favor of the defendant; and a judgment was entered accordingly. From that judgment the plaintiff below appealed. The testimony adduced at the trial tended to prove that the appellee was a nonresident of the State, and had placed the land in the hands of a resident agent to sell. This agent called the attention of the appellee to the fact that the land was for sale. The land is situated about one and one-half miles from the city of Jonesboro, and the appellant had seen the land many times before the sale and had been on and over it. Before the contract of purchase was made the appellant and the agent of appellee talked about having the land surveyed in order to determine the number of acres that were in the tract. The agent stated that the land had not been surveyed, and that he was not in a position to have it surveyed. It was then agreed that the appellant would have the land surveyed. This was about two or three months before the deed was executed, the purchase money paid and the contract of sale consummated. There is no testimony that the agent stated that the land contained 70 acres; and the only circumstance indicating that this number of acres was mentioned is that in the deed the land is described as containing 70 acres, more or less. The appellant testified that when he purchased the land it was to contain, or that he thought it contained, 72 acres, but he does not state that the agent made such a representation.

This is an action to recover damages for an alleged deficiency in the quantity of the land claimed to have been sold. It is founded upon the alleged fraud in making a false representation as to the quantity of the land, which induced the purchaser to pay the price therefor. Such an action can not be founded upon the breach of any of the usual covenants that are contained in a deed and which were contained in this deed.

Independently of an express averment or covenant as to quantity in the deed, when the quantity is mentioned after a particular description of the land, it is regarded merely as a part of the description, and will be rejected if it is inconsistent with the actual area of the premises conveyed. In the case of Harrell v. Hill, 19 Ark. 102, it is said "The mention of quantity of acres after a certain description of the subject by metes and bounds, or by other known specifications, is but matter of description, and does not amount to any covenant or afford ground for the breach of any of the usual covenants, though the quantity fall short of the given amount." When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right to relief for such deficiency is founded upon fraud, misrepresentation or gross mistake. 1 Sugden on Vendors, p. 490; 3 Washburn on Real Property, § 2322; Harrell v. Hill, 19 Ark. 102; Goodwin v. Robinson, 30 Ark. 535; Neely v. Rembert, 71 Ark....