Tinsley v. Hearn

• Decision Date: 13 January 1917
• Citation: 191 S.W. 127
• Parties: TINSLEY v. HEARN et al.
• Court: Tennessee Supreme Court

191 S.W. 127

TINSLEY v. HEARN et al.

Supreme Court of Tennessee.

January 13, 1917.

Certiorari to Court of Civil Appeals.

Action by E. F. Tinsley against S. J. Hearn and another. From a judgment of the Court of Civil Appeals for plaintiff, on appeal from the chancery court, defendants bring certiorari. Remanded to the chancery court, with directions to modify the decree.

Seth M. Walker, of Lebanon, for plaintiff. J. H. Campbell, of Lebanon, for defendants.

WILLIAMS, J.

Hearn and Stratton sold to Tinsley a tract of land, representing in the negotiation that it contained 66 acres. Tinsley went upon the tract and saw the major portion of it, particularly noting the residence and other improvements, and purchased believing that there were 66 acres in the boundary. The deed of conveyance recited a consideration of $4,250. The proof now in the record indicates that the improvements were of a value probably above $1,250.

Some time after the conveyance it was ascertained that there were in the boundary only 56 acres. This suit was brought by the purchaser to recover for the 10 acres lacking. The rulings of the chancellor and the intermediate appellate court will be set forth in the body of the opinion.

Though the sale was in gross, and the deed of conveyance described the tract as containing 66 acres, "more or less," a deficiency of 16 2/3 per cent. (one-sixth) of the entire boundary represented is so great as to justify an inference of mutual mistake, and the purchaser is entitled to an abatement of the purchase price. Both the chancellor and the Court of Civil Appeals so held, and correctly, under the rules laid down in Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267, and Rich v. Scales, 116 Tenn. 57, 91 S. W. 50.

The chancellor, however, decreed an allowance for the deficiency in favor of the purchaser on the basis of the average value of the acreage, improved and unimproved, in the entire tract; and this is complained of by the appealing vendors, who insist that, as there were valuable improvements on the land which the purchaser undoubtedly took over, this fact should have been taken into consideration, and that the purchaser's right in any abatement is to actual compensation, not necessarily an abatement in price proportionate to the deficiency.

We think there is merit in this insistence. The purchaser was not mistaken or disappointed in respect to the improvements. The residence and outhouses were seen by him, and he concedes in his testimony that they had a considerable value. The failure to get some of the land he bought must therefore have reference to the portion on which the improvements were not located, and the true criterion of abatement is not the ratio of the quantities, represented and real.

Perhaps the leading case on this point is that of Hill v. Buckley, 17 Ves. Jr. 394, 34 Eng. Reprint, 153, in which it appeared that the quantity of land conveyed was 217 acres, while in fact there was not that much by about 26 acres. A part of the land was woodland, and a part waste land of considerably less value. All of the woodland was comprehended, so that the purchaser got all of its value. The mistake, therefore, affected the waste land. The Master of the Rolls said:

"But there is a difficulty in this case from the nature of the mistake, which must have influenced the vendors in their estimate of the price in a manner that, if a reasonable...