137 Ky. 95 | Ky. Ct. App. | 1909
Opinion of the Court by
— Reversing.
Appellee, Bush, sold and conveyed to appellant, Boggs, two tracts .of land in Estill county, for the consideration of $1,400. The description of the land contained in the deed is as follows: “Beginning at the mouth of the branch, Prather corner on the Kentucky river, thence up said branch as it meanders N. 6% degrees W., 20 poles, N., 26 poles; thence N. 6 degrees W., 24 poles, to a hickory on said branch; thence N. 59% degrees E., 6.2 poles, to a bunch of walunt hushes; thence with a West line between Floyd and the said Bush, N. 78% degrees W., 14 poles, to a stone; thence N. 46% degrees W., 15 poles, to a fence post; thence N.; to a stone in Bogie’s line, corner to Ware and said Bush; thence a straight line S. W., to a locust tree near an old ice house continuing a straight line to a stone corner to Ware and Hendrix; thence with Hendrix’s line S. 10 degrees E., 136 poles, to a stake on the N. hank of the Kentucky river; thence up said river N. 68 degrees E., 107 poles, to the beginning, containing 90 acres more or less. Also a tract of woodland containing 10 acres more or less-and lying on the north side of Browning creek
In this suit by appellant against his grantor, Bush, it is claimed that the tract described as containing “90 acres more or less” was actually only 78 acres. The plaintiffs’ damage is laid at $250. He sues upon the ground that the sale to him was by the acre; or, if not, that the deficit was so large as to fall within the rule that it was not within the contemplation of the parties, and was therefore a mistake, a misrepresentation, from which a court of equity will grant relief. It was denied in the answer that the sale was by the acre. It was averred, on the contrary, that it was a sale in gross, and that as a matter of fact the grantee got by the conveyance all the land that was sold or intended to be sold to him, and all that he thought he was buying. The circuit court denied plaintiff the relief for which he prayed, basing the judgment upon the ground that the sale was in gross, and that the discrepancy in quantity was not enough to warrant a restitution of a proportionate part of the consideration. The circuit court also held that it was inadmissible to show by extraneous evidence the negotiation leading up to the sale and execution of the deed; that the trial must be confined to the examination of the deed alone.
The proof was: That the parties went upon the land pending the negotiation, when the lines of the first-described tract were pointed out to appellee by appellant; that appellee believed that boundary contained 90 acres, and so represented to appellant; that upon appellant’s request that it be surveyed appellee, no doubt acting in good faith, responded
We do not regard the question as a material one in this case whether the sale was by the acre or in
The addition of the qualifying clause “more or less” relieves only the necessity for exactness. It indicates that the parties contemplated' making some allowance for those inaccuracies that are usual in
In the early and leading case of Harrison v. Talbot, supra, indeed throughout the cases on the subject, it- appears that the court may look to extraneous evidence to show the nature of the transaction, to enable it to determine whether the sale was in gross or by the acre, or whether, under the circumstances of the particular case, equity required the
In this case the discrepancy was more than 13 per cent.
The judgment should have been for the plaintiff.
Reversed and remanded.