Tyler v. Anderson
| Decision Date | 15 April 1886 |
| Docket Number | 12,465 |
| Citation | 6 N.E. 600,106 Ind. 185 |
| Parties | Tyler v. Anderson |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
C. V McAdams and W. P. Rhodes, for appellant.
W. L Rabourn, for appellee.
Suit upon a promissory note executed in 1882. The court below sustained a demurrer to the first paragraph of appellant's answer. That ruling is the only question presented for review here.
The substantial averments of that answer may be epitomized as follows: In 1874 appellant purchased of Ruth V. Anderson two tracts of land, and received from her two warranty deeds therefor, copies of which are made a part of the answer. In one of them the consideration is stated as the sum of $ 10,800, and the land is described as the N. E. 1/4 and E. 1/2 N.W. 1/4, S. 24, T. 21 N., R. 10 W., containing 240 acres more or less. In the other, the consideration is stated as the sum of $ 3,200, and the land is described as the E. 1/2 S.W. 1/4, S. 13, T. 21 N., R. 10 W., containing 80 acres, more or less. The contract of sale entered into by appellant and Ruth V. Anderson was, that appellant should pay for the 240 acres at the sum of $ 45 per acre, and for the other tract of 80 acres at the sum of $ 40 per acre, the sale and purchase being by the acre, and not for a gross sum.
Ruth V. Anderson represented to appellant that one of the tracts contained 240 acres, and that the other contained 80 acres. In fact, and by actual measurement, the tract represented as containing 240 acres contains but 235 10/100 acres, and the other contains but 77 40/100 acres. Appellant, believing and relying upon the representations as to the number of acres, made no measurement or survey of the lands, and paid part cash, and gave his notes for the balance of the purchase-money, calculated at $ 45 per acre for 240 acres, and $ 40 per acre for 80 acres. These notes were secured by a mortgage upon the lands. The deficiency in acreage was unknown to him for several years after the sale and execution of the deeds, and until after the execution of the note in suit.
At the time Ruth V. Anderson made the representations, she knew they were not true, and that the tracts of land did not contain as many acres of land as she had represented. The words "more or less" were inserted in the deeds without appellant's knowledge, and without anything being said concerning their use. On the day the note in suit was executed, appellee, as the agent of his mother, Ruth V. Anderson, settled with appellant. In that settlement it was found that appellant yet owed of the purchase-money $ 6,187. For the purpose of having the mortgage upon the lands released, he paid to appellee, as the agent of his mother, the whole of said amount except $ 300, and for that amount agreed to give his note. In pursuance of this settlement and agreement, the mortgage was released, and appellant executed the note in suit. The land so purchased was the only consideration for the note.
Without the knowledge or consent of Ruth V. Anderson, the note was made payable to appellee, who was her son and agent, and appellant signed the same without examination, supposed it was made payable to Ruth V. Anderson, and had no knowledge to the contrary until this action was commenced.
This plea shows that Ruth V. Anderson is the owner of the note, in such a sense that whatever defence appellant might have made, had the note been made payable to her, he may now make. Waddle v. Harbeck, 33 Ind. 231; Swindell v. Richey, 41 Ind. 281.
The plea also shows that the only consideration for the note is the land, it being only a renewal, to the extent of it, of the other notes given for the purchase-money. Any defence, therefore, that appellant might have made against those notes he may make against this. Daniel Negotiable Instruments, section 177.
Appellee contends that if it should be conceded that there was error in sustaining the demurrer to this answer, it was, and is, a harmless error, because the facts therein set up might have been given in evidence under the third answer, in which a want of consideration is alleged in general terms. We think otherwise. There was a consideration. The note in suit, like those of which it is so far a renewal, was given for the land. The consideration has failed to the extent of the note by reason of there being a less number of acres of land than agreed upon. An answer of a total or partial failure of consideration must set out the facts showing the failure. Billan v. Hercklebrath, 23 Ind. 71.
The important question remains: Does the answer properly state facts sufficient to show a failure of consideration?
The words "more or less" in a deed, in connection with a description of land, are used to designate approximately the quantity of the land within the given boundary. In the absence of contracts, the quantity is always regarded as a part of the description. And where it appears by words of qualification, as "more or less," that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud. 4 Kent Com. 467; Martindale Conveyances, p. 87; 1 Sugden Vendors, top p. 490, bottom p. 324; Williamson v. Hall, 62 Mo. 405; 2 Hilliard Am. Law of Real Prop., p. 535; King v. Brown, 54 Ind. 368; Langsdale v. Girton, 51 Ind. 99.
This is the general rule where the land is sold in lump, and for a gross sum, and there is no fraud or concealment or misrepresentation that amounts to fraud. An abatement of any portion of the purchase-price on account of a deficit in the number of acres, in all cases, where the quantity is merely a part of the description, rests upon the ground of fraud. There may be cases where the deficit in the quantity is so great as to authorize an inference of bad faith and fraud on the part of the seller.
In the case of Cravens v. Kiser, 4 Ind. 512, it was said: ...
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