116 Ga. 758 | Ga. | 1902
Morris sued Finney for ninety dollars and interest thereon, the balance appearing to be due upon a promissory note, given by the defendant to the plaintiff. The defendant pleaded that the note was given in part payment for certain lands which he purchased from the plaintiff; that he bought of the plaintiff two
In our opinion, the court did not err in directing a verdict in favor of the plaintiff. We know of no distinction between actual and intentional fraud. When the defendant disclaimed any purpose to charge the plaintiff with any actual fraud in the sale of the land, he admitted himself out of court; for, as we' understand the decisions of this court, it is only in cases of actual fraud that a purchaser of land, sold by the tract and described in the deed as so many acres “ more or less,” can have the price which he agreed to
Applying the principle laid down in those cases to the present ease, if Finney, the purchaser, and Morris, the vendor, had equal opportunities to judge of the number of acres contained in the tract sold, and both acted in good faith, the deficiency in the number of acres actually conveyed can not be apportioned. It does not appear, from the evidence, that their opportunities for estimating the number of acres were unequal. All the boundaries of each tract were given, and Finney testified that he had known the land for forty years. It is true that he also testified that he did not know any of the lines, “ did not know as much as Morris, and did not risk his (Finney’s) judgment.” This does not show that he did not have equal opportunities with the vendor to judge.of the number of acres sold. The disclaimer of the defendant of any purpose to charge the plaintiff with intentional fraud in the sale of the land amounted to an admission that there was no such fraud, and that, therefore, the plaintiff acted in good faith. So the case falls squarely within the principle ruled in Walton v. Ramsay. The plaintiff in error relies upon the decision rendered in Estes v. Odom, 91 Ga. 600. As we understand the question involved in that case and the decision rendered thereon, it is not in conflict with the prior decisions of this court which we have cited above. There the plaintiff in the court below charged the defendant with willful deception and intentional fraud, and did not, like the defendant in the present case, rely upon mere legal fraud. That case, as we understand it, holds that there can be no investigation of the question whether there was or was not fraud in the sale of the land, until the preliminary question, whether the deficiency in the land as conveyed is so gross as, in and of itself alone, to justify the suspicion of willful deception, or mistake amounting to fraud, has been determined in the affirmative; that when this preliminary question has been so decided, then, and then only, the question of actual fraud may be
Jv>dgment affirmed.