172 Ga. 545 | Ga. | 1931
A deed to land containing the following description: “All that certain lot, tract, or parcel of land situate, lying,,and being in said county and State on the Louisville Eoad about six (6) miles from the City of Savannah and containing seventy (70) acres, more or less, and consisting of that certain tract containing eighty (80) acres, more or less, being bounded on the north by the Louisville Eoad, on the east by lands now or formerly belonging to the estate of Wetter and Telfair, on the south by the right of way of the Seaboard Air-Line Eailroad, and on the west by lands of Mary J. Bodeford, excepting from said eighty (80) acres ten (10) acres being on the northeast corner of said eighty (80) acres, and having a width on the Louisville Eoad of three hundred and twenty-five (325) feet and a rectangular depth on its eastern line of thirteen hundred and eighty-s'ix (1386) feet and a width' on its southern line of three hundred and sixteen and twenty-five one hundredths (316.25) feet,” is a sale by the tract, and not by the acre. In Devlin on Real Estate (3d ed.), § 1044, it is said: “In the description of lands it is usual, after the description by metes and bounds or subdiyisions, to add a clause stating that the
These headnotes do not require elaboration.
On the trial of the case, at the request of the defendant, the court required the jury to find specially upon nine questions submitted. These questions, with the answers are:
1. Should the deed be reformed as prayed? Yes.
2. Was any representation made by defendant as to number of acres known by him to be false and fraudulent? No.
3. Was such representation made with intent to mislead and deceive the plaintiffs? No.
4. Did the plaintiffs before agreeing to buy have as good opportunity for knowing the truth as the defendant ? No.
5. What was the deficiency in acreage ? 7 acres.
6. What was its value? $600.00.
7. Did the plaintiffs before buying have sufficient opportunity to examine the premises? Yes.
8. Did they examine the premises before buying ? Yes.
9. What did the defendant do to prevent them from examining the premises ? Nothing.
To these the court voluntarily added the further question, “Should a permanent injunction be granted?” which was answered “Yes.” The several findings of fact by the jury are to the effect that the defendant sold to the plaintiffs a body of land by the tract, without the qualifying words, “more or less,” as to the number of acres, which was represented to be seventy; that there was a deficiency of seven acres of the value of $600, but this deficiency was without actual fraud on the part of the defendant; that the plain
As the judgment is reversed it is necessary to decide the question raised in the cross-bill of exceptions. Error is there assigned on the judgment sustaining the demurrer to the third amendment offered to the petition, which sought a rescission of the original contract. This ruling should not be confused as conflicting with that class of cases to which Civil Code (1910) § 4124 applies. That section is as follows: “If the purchaser loses part of 'the land from defect of title, he may claim either a rescission of the entire contract, or a reduction of the price according to the relative value of the land so lost.” It applies where one purchases land described by metes and bounds, and where he fails to receive title and possession to a portion or fraction of the land actually lying within the described boundaries, because it develops that some one else has title to such portion or fraction. One of such cases was Holliday v. Ashford, 163 Ga. 505 (136 S. E. 524). The present case differs from that class of cases in that the purchaser receives all of the land within the described boundaries, but the quantity of land therein, by actual survey, is less than the quantity named in the deed of conveyance. In the latter case just described, which applies to the case now under consideration, where both parties acted in good faith, the purchaser can not rescind. Kendall v. Wells, supra; Williams v. Smith, 135 Ga. 335 (69 S. E. 480). It follows that the court did not err in sustaining the demurrer, thus refusing to allow the amendment.
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.