154 Mo. App. 233 | Mo. Ct. App. | 1911
This is a suit in equity wherein plaintiff seeks to recover for the deficiency of 16.13 acres of land, the difference between the actual amount purchased and that conveyed by defendants to the plaintiff. For convenience we will denominate defendants as synonymous as that of defendant.
On the 20th day of January, 1908, and for a period of nine years prior thereto the defendant was the owner of a tract of land situated, partly in Howard and partly in Chariton county, on which date by a written contract he sold to plaintiff and in which the land was described as follows: “All that part of the northwest quarter of section 27 lying west of the county road leading from Glasgow to Salisbury; also the south half of the northeast quarter of section 28, and the northeast quarter of the northeast quarter of section 28, all in township 52, range 17, containing 255.84 acres.” In the deed subsequently made by defendant conveying the land to plaintiff, the land is described as follows: “All the south half of the northeast quarter, and the northeast quarter of the northeast quarter, of section 28, and all that part of the northwest quarter of section 27 which lies west of the public road leading from Salisbury to Glasgow, all in township 52, range 17, reserving a right of way along the northern boundary of the above land leading to the land now owned by G. Nellesen, and being the same tract of land acquired by party of the first part by deed from Wm. E. White and wife, dated February 16, 1899, recorded in Book 56 at page 218 deed records of Howard county, Missouri, and containing in all 255.84 acres.”
The defendant had placed the land in the hands of a real estate agent for sale, listing it at- 256 acres
In the negotiations which led up to the purchase and sale of the land, the defendant fixed-his price at $65 per acre, the plaintiff offering to pay him $60' per acre. It was finally agreed that they would split the difference in the offering and selling price and the price was fixed at $62.50 per acre. At the time of writing the contract defendant produced the deed from his grantor which gave the number of acres of the land as 255.84. At the time the deed was executed on the 13th day of February, 1908, at the direction of the defendant, the consideration in money and a note for $3500 was paid over to defendant’s wife. In March following, plaintiff went into possession of the land and began to make improvements. In the following December, when he received his receipts for taxes paid on the land he ascertained that one called for 113 acres in Chariton county and one for 133 acres in Howard county, making a total of 246 acres. Afterwards he caused it to .be surveyed and ascertained that there were only 239.71 acres in all.
The plaintiff offered to prove that his attorney went to see Mr. White, the person from whom defendant had purchased the land, and that White offered to pay $750 in settlement of the matter, provided defend
The contract has no stipulation as to the value of the land per acre, but recites a total consideration of the sum of $16,000. It also appeared that defendant did not himself know there was a deficit in the number of acres in the tract, at the time he made the deed to plaintiff.
The plaintiff alleges and shows the insolvency of the husband and makes his wife a. party to the proceeding's for the purpose of reaching the property she received as a gift from her husband. The action is not based on a breach of warranty, but upon the ground that the plaintiff purchased the land on" the representation of defendant that the tract contained 255.84 acres, and that by mistake, oversight or omission, the deed conveying the land to him did not expressly warrant to plaintiff said number of acres. The finding and judgment were for the defendant from which plaintiff appealed.
In a case at law where the facts were similar to these, the grantee sued to recover from his grantor the value "of the deficit in the land conveyed. The court held that: If the plaintiff desired the deed to show a sale by the acre or that the tract was warranted to contain a certain number of acres, he should have had it expressed in the deed, and that the deed, “will measure his rights and liability, and the transaction will be "a sale of the tract of land described for a stated price m solido[Hendricks v. Vivian, 118 Mo. App. 417.] And such seems to be the, well set-
It is held that: “False statements and representations made by the vendor, positively and as of his own knowledge, as to the number of acres in a certain tract of land, when the tract is being negotiated by the acre, are not regarded as expressions of opinion, but are considered statements of fact and as such constitute fraud.” [Judd v. Walker, 215 Mo. 312.] The opinion cites numerous decisions of the Supreme and Appellate courts of the state which hold to the same effeet. As the case is the last expression of the Supreme Court on the question we refrain from calling attention to any prior ones.
The courts of equity afford relief in cases of mistake as well as in cases of fraud. [Hendricks v. Vivian, supra.] Equity affords relief where the written agreement does not, through mistake of both or either party to it, express the real agreement. [Gottfried v. Bray, 208 Mo. 652.] In Alabama, it is held that: “It appearing that the vendor represented that the tract contained about twenty-five acres more than it really did contain, the mistake is so gross and palpable that equity will afford the vendee relief by abatement of the purchase price.” [Hodges v. Denny, So. Rep. vol. 5, p. 492.] In a Kentucky case the facts were as follows: “In the negotiations the vendor represented that the land contained ninety acres, and a survey showed that quantity. A deed was given containing ninety acres ‘more or less’, and thereafter it was discovered that through an error it calls the tract contained seventy-eight acres, and the purchaser sued in equity for relief against the deficiency on the ground of mistake or fraud. Held, that a contention that the
It is generally understood that equity jurisdiction depends on two facts, the existence of equitable interests and the inadequacy of legal remedies. There can be no doubt but what plaintiff has such interest as disclosed by the evidence, and that he has no legal remedy.
It follows therefore, that the court committed error in striking out the evidence as to the agreement made between plaintiff and defendant, and the latter’s representations as to the quantity of land in the tract conveyed, made at and prior to the time of the making of the contract and the deed for the sale and conveyance of the land.
The action of the court in excluding the evidence of what occurred when plaintiff was seeking to have the matter in controversy settled, with White, the defendant’s grantor, is approved. The declarations made at the time of the offer, that it was not made to show an offer of compromise, but for the purpose of showing that defendant was not acting in good faith, did not make it competent evidence. The purpose for which it was offered, did not render that competent,
Under plaintiff’s allegations he was entitled to the relief prayed for. The cause is reversed and remanded with directions to enter judgment for the amount of the deficiency at $62.50 per acre, and that he have the amount credited on the note held by the wife for the balance of the purchase money.