Wolcott v. Moore

• Decision Date: 01 November 1910
• Docket Number: No. 7,056.,7,056.
• Citation: 46 Ind.App. 427,92 N.E. 880
• Parties: WOLCOTT et al. v. MOORE.
• Court: Indiana Appellate Court

46 Ind.App. 427

92 N.E. 880

WOLCOTT et al.

v.MOORE.

No. 7,056.

Appellate Court of Indiana, Division No. 2.

Nov. 1, 1910.

Appeal from Superior Court, Marion County; J. L. McMaster, Judge.

Action by Eben H. Wolcott and others against Robert E. Moore. Judgment for defendant, and plaintiffs appeal. Affirmed.

F. E. Matson and J. F. Cowern, for appellants. Samuel Ashby, for appellee.

ROBY, J.

The parties hereto on January 6, 1903, made a written contract for the sale and purchase of certain real estate then owned by appellee. Its terms, so far as they are material to the present controversy, were as follows: “Witnesseth that the said Moore has this day sold his land in Harrison township, Knox county, Indiana, to parties of second part, containing 500 acres, more or less, at the price of $35 per acre, amounting to $17,500 net of commissions, and the said Moore hereby agrees if so requested by parties of second part before March 1st, 1903, to have these lands surveyed, and if there is less than 500 acres to deduct for such shortage at the contract price, and if there is an excess, the parties of the second part hereby agree to pay for same at the contract price per acre. The terms of sale are as follows.” On February 21, 1903, appellee executed his deed in accordance with the terms of the contract, and payment was duly made to him. The description in said deed was followed by a clause, “containing in all 500 acres more or less.” In appellants' first paragraph of complaint they aver that they caused a survey of said land to be made in the month of -, 1906; that they caused an accurate survey of said tract to be made and found it to contain only 463.47 acres, a deficiency of 46.53 acres; and they asked judgment for the amount paid by them therefor. The second paragraph of complaint contains the additional averments that before the execution of said deed appellee stated to appellants that said tract of land upon survey thereof would be found to contain 500 acres, and that it did contain 500 acres, and that by reason thereof they did not demand a survey of the tract of land before March, 1903. Demurrers were sustained to both paragraphs of complaint, and such rulings are assigned for error.

The law is very well settled that: “In case one purchases real estate at a given price per acre, and the purchaser and seller have a common belief that there is of said real estate a given number of acres, and the purchaser pays the purchase price therefor in...