48 So. 186 | Miss. | 1909
delivered the opinion of the court.
On this record the chancellor must have concluded that Allen was more familiar with the boundaries of the land than was Luckett, that Allen pointed out these boundaries, that tiie sale was made upon the faith of these representations, that the sale was by the acre, and that apppellee did not intend to convey more than fifty acres; whereas, in truth, nearly two hundred acres were conveyed. We are not warranted in overthrowing this finding of fact.
TJpon this state of facts the jurisdiction of a court of equity to decree rescission of the contract and cancellation of the conveyance is well established. It is immaterial whether actual fraud be imputed to appellant. The result is the same, if the transaction was the result of a mutual mistake. If the terms are stated according to the intent of the parties, but there is an error of one or both in respect of the tiling to which these terms apply—its identity, situation, boundaries, title, amount, value, and the like—then it is elementary that a court of equity may grant appropriate relief, provided the fact about which the mistake occurs was a material element in the transaction. 2 Pomeroy’s Equity Jurisprudence §§ 852, 253; Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267.
The court having required appellee to refund the purchase money, with interest, the case must be, and is hereby, affirmed.
.After the delivery of the foregoing opinion thé clerk entered a judgment affirming the decree appealed from without awarding the five per centum, damages- provided for in Code 1906, § 4926.
Thereupon appellee moved for an amendment of the judgment so as to allow him five per centum on the value of the land, which motion was sustained, the opinion being in these words:
Per dunam. Motion to allow five per cent, damages sustained.