189 Ky. 274 | Ky. Ct. App. | 1920
Opinion of the Court by
Affirming.
On October 1, 1913, J. M. Andrew sold and conveyed to W. M. Byrn a tract of land in Graves county. While the land was fenced and lay in one body, it was not described as one tract but as several tracts, each tract be- - ing • described by metes and bounds, and by reference to the deed by which it was conveyed to the grantor. The several tracts aggregated about 184 acres, but a subsequent survey shows that there were only about T78 acres in all. According to the deed the land was sold in gross and not by the acre, and the consideration was $15,000.00, evidenced by seven promissory notes for different amounts and bearing interest from date.
After selling portions of the land to different parties, Byrn brought suit against Andrew to recover the sum of $1,650.00 and interest becausé of an alleged deficiency in the quantity of the land sold. ' He charged that Andrew represented to him that there were 200 acres' of said land, and that he would sell the same to him for $75.00 per acre; that there were only 178 acres in the tract'conveyed, and that défendant’s representation that there were 200 acres was false; that plaintiff relied upon defendant’s statement as to'the number of acres, and but for said' statement would not have ¿xecuted his notes for said land; that said statement was 'fraudulently made for the purpose of deceiving plaintiff and caused plaintiff to execute his notes for $1,650.00 more'than he' should have done. On final hearing plaintiff’s petition was dismissed and he appeals.
Plaintiff testified that he bought the land at $75.00 per acre and defendant guaranteed that there were 200 acres. He further stated that defendant took the deeds under which he held title, set down the quantities of land,' and, after'adding them up, informed' plaintiff that there were 203 acres of land including the cemetery.' G. L. Hopkins testified that' defendant stated to him, that'plaintiff gave him $75.00 per acre, or $15,000.00 for the whole
A brief statement of the rule prevailing in this state is as follows: Where land is sold by the acre, a recovery . can be had for a deficiency in the quantity, but where land is sold in gross and not by the acre no recovery :can be had except upon allegation and proof of fraud or mistake unless the deficiency is as much as ten per cent.
Judgment affirmed.'