41 S.C. 198 | S.C. | 1894
The opinion of the court was delivered by
This was an action for an alleged
Some years after the execution of the deed to the plaintiff, W. W. Erskine, it was discovered that the plat attached to it was all right as to courses and distances, &c., but that the surveyor in estimating the number of acres embraced had made a mistake in stating that there were 253 instead of 128 acres. Thereupon the plaintiff Erskine instituted this action for damages for alleged breach of his covenant of warranty. The defendant answered, denying all liability, and insisting that he sold the land to the plaintiff as a tract by metes and bounds, and that he made no representation whatever to the plaintiff in reference to the number of acres therein, but sold to him the tract of land bounded by W. F. Parker, Joseph Fricks, H. W. Kuhtmaun and others,” &c.
The cause came on to be heard by his honor, Judge Izlar, and a jury. The plaintiff admitted that the defendant Wilson did not make any false and fraudulent misrepresentations as to the quantity of land embraced in the tract. And the defendant testified that he made no representations whatever as to the quantity of the land, but sold it as he had bought it, not by the acre but by metes and bounds. Upon the close of the tes
From this order the plaintiff appeals to this court upon the following grounds: I. Because the evidence showed that pending the negotiation of the sale of the land, and at the time of the sale, the defendant represented to the plaintiff that the tract of land contained 253 acres, which was untrue, and the tract contained in fact only 128 acres, and by reason of these misrepresentations the plaintiff was induced to make the purchase of the land to his injury, and is entitled to the relief prayed for in his complaint. II. Because there was a gross deficiency in the amount of the land sold plaintiff, and he is entitled to the relief prayed for iu complaint. III. Because the judgment of the court dismissing the complaint is not sustained by the evidence nor by the law applicable to the ease.
The plat is all right in all respects, the only defect being in the calculation of the surveyor. In the case of Jones v. Bauskett, 2 Speer, supra, Judge Wardlaw, as the organ of the old Appeal Court, said: “When the quantity is a material consideration in the purchase of a tract in gross, the purchaser will either have it expressly warranted, or take care that a surveyor be employed, upon whose skill and integrity he can rely. A description by plat is so much more easy and certain' than any other that can be employed, that its use should not be discouraged. It would then be unwise to compel the vendor, without his agreement, to insure the skill of the surveyor and the accuracy of the instruments used, against subsequent discoveries which may show a deficiency of the quantity represented by a plat; and unfair, if he can gain nothing from discoveries, which may show an increase,” &c.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.