Walker v. Dunlop

• Decision Date: 30 June 1818
• Parties: JACOB WALKER v. HUGH DUNLOP.
• Court: Tennessee Court of Appeals

6 Tenn. 271

JACOB WALKER

v.HUGH DUNLOP.

Supreme Court of Errors and Appeals of Tennessee.

June Term, 1818.

The suggestion of a falsehood is a sufficient cause for setting aside conveyances. (Acc. White v. Cox, 3 Hay., 83; White v. Flora, 2 Tenn., 426, and cases cited.)

And, further, if one has, by mistake or misapprehension, participated in by the other side, been drawn into a contract for property otherwise circumstanced than was supposed, he that gets the advantage through such mistake or misapprehension, ought not to retain it, nor will equity permit him to do so. (Acc. Phillips v. Hollister, 2 Cold., 269;Bankhead v. Alloway, 6 Cold., 56.)

From the bill, answer and testimony, it appears that Thomas and Robert King procured a grant, No. 577 from the State of North Carolina for 1,000 acres of land, in what is now Roane county, and that the defendant claiming title to said tract by deed of conveyance from them, sold 333 1-3 acres to Jacob Wassum; and agreed to have the tract divided into three shares by a surveyor; that Jacob Jones, a surveyor, did lay off and divide the land into three shares, and mark the lines according to information given him by the defendant respecting the corners and lines of the grant; but which in fact were not corners and lines of the grant, as is now admitted by the defendant. Wassum, by contract, was to have his choice of either of the three parts. After this, the defendant, for the sum of $500, which was fully paid, sold, and gave his bond, dated 31st December, 1816, to convey in fee to the complainant 333 1-3 acres of land, being the equal one-third part of 1,000 acres granted to Robert and Thomas King, by grant, No. 577, lying in the county of Roane, on a creek known by the name of Stewart's Creek, agreeably to a survey made by Jacob Jones. The complainant to have the second choice in the land, allowing a year to Wassum to make his choice. The defendant sold the remaining third part to Jacob Ault. At the time of the purchases made by Walker and Ault, they lived in Knox county, sixty miles from the land sold, and had never seen it. Some time after the date of the bond they went to view the land. Wassum in the mean time had made choice of the middle division, as laid off by Jones. The defendant Dunlop showed them the land, with the line run by Jones, dividing it into three equal portions; and also corners, which were represented by him to be corners of the original tract granted to the Kings. The complainant Walker made choice of the lower division, which, included the springs, and the place where B. Cane settled. Ault, of course, was to have the upper part; and a deed in fee with general warranty was thereupon executed by the defendant to Walker on the first day of May, 1807, for 333 1-3 acres of land, lying and being in the county of Roane, on a creek known by the name Stewart's Creek, on the north side of Tennessee River; being one-third part of 1,000 acres of land granted to Robert and Thomas King. Beginning on a white-oak and black-oak, the beginning corner of said 1000-acre tract; then running with the line of said grant north 400 poles to a post-oak, the north corner of said grant; then west 133 1-3 poles to a black-oak, Jacob Wassum's corner; thence with Wassum's line south 400 poles, to a stake; thence east 133 1-3 poles to the beginning.

Some time having elapsed after the date of this deed, Hailey settled on the upper part, M'Pherson on the middle, and Blake on the lower part, as laid off by Jones. The defendant said that Blake was a mere occupant, and advised a suit to be commenced against him. At a subsequent time, Walker and Ault still urging for possession of the lands by them respectively purchased; they were informed by the defendant that the land included in the grant for 1,000 acres to Robert and Thomas King, lay farther up the creek and not at the place surveyed by Jones. He told Walker that M'Pherson, and not Blake lived on the lower end of the tract, and that he must bring suit against M'Pherson to recover possession. Walker refused, alleging, that was not the land he had purchased, but he had paid his money for the place...