72 S.W.2d 468 | Ky. Ct. App. | 1934
Affirming.
In 1920 A.J. Garrison subdivided his farm and sold it at auction in parcels. The front tract, designated as No. 4, was good land and was platted and represented as containing 45 acres. Tract No. 5 back of it was rough land and it was platted and sold as containing 48 acres. W.L. Hansford, his brother-in-law, became the purchaser of these tracts. He bid $5,700 for No. 4, and $2,148 for No. 5. When the two parcels were offered together, he claims there was no other bid and he got them under his separate bids, while Garrison says that he had raised his separate bids by $25. There are some other differences in the details which are not very material, and we think the evidence fully sustains the chancellor's finding that the sale occurred about as stated by Hansford and that finding is not really questioned on the appeal. A few months elapsed before the deed was executed and delivered for the property. In it the two parcels were described as one boundary containing 93 1/2 acres, more or less, and the purchase price was recited as being $7,848. Hansford paid one-third *769 of the consideration in cash and executed five notes for the balance.
Before all of the notes had been paid, he discovered that the more valuable tract which he had bought at the rate of $126.66 2/3 an acre contained only 34 7/8 acres instead of 45, and the rough land which he had bought for $44.75 an acre contained 57 5/8 acres instead of 48, so that while there was but a small difference in the total acreage purchased and conveyed, there was a material difference in the acreage of each of the two separate parcels; consequently, Hansford had paid and promised to pay too much for the more valuable tract and too little for the lesser one. When Garrison sued to recover the balance on the notes and to enforce his lien on the land, Hansford set up the deficit in acreage of one tract and the excess in the other as a counterclaim. The court credited the debt by $850.30, being the difference in money between the deficit and the excess in area. Garrison questions that judgment on the appeal.
He invokes the rule that all verbal agreements and negotiations became merged in the deed, and insists that in the absence of an allegation of fraud or mistake, evidence concerning the representations at the auction sale should not have been heard, and that since the deed called for 93 1/2 acres for a lump sum consideration and there was but a small shortage in the whole farm, the right to recover on account of the difference in money was not established. The cases of Hopkinsville Motor Company v. Massie,
Judgment affirmed.
