| Miss. | Oct 15, 1870
On the 12th day of January, A. D. 1856, John Kerr sold and agreed to convey a parcel of land to Hartsfield & Kuy-kendall. The contract is embodied in a bond for title, and so much as is material in this controversy are embraced in these clauses:
“ Hartsfield & Kuykendall have this day purchased of the said John Kerr, section 32, township 8, range 7, west, in Panola county, and agreed to pay therefor the sum of nine*142 teen hundred dollars. ” This was divided into installments (except the cash payment) of one, two and three years, of $480 each, interest from date at 6 per cent.
The several installments have been paid, except the the last. To enforce this, John Kerr filed his bill in chancery, claiming to charge it as a lien on the land, tendering a deed with his bill to Kuykendall, who owned the entire interest in the purchase, by assignment from Hartsfield.
The answer makes as a defense, that the respondent and Hartsfield supposed and believed that the tract was a full section of 640 acres; that they bought the land by the acre, and made their notes, and the cash payment, on the basis of 640 acres; that on subsequent survey it turned out that the tract contained 458 18-100 acres, and was not a full section; that respondent has overpaid. The answer is made in this respect a cross-bill, and the relief- is asked that a title according to the terms of the bond may be made, and the note canceled and be declared null.
Was this a sale in gross or by the acre ?
Respondent in the answer says that Keer did not speak to him in relation to the tract of land’; that it was but a fractional section. Nor did Kerr, or his agent, or any person, inform Hartsfield, or respondent, that said tract of land was but a fractional section. The contract in this particular is thus stated:
£i Hartsfield & Kuykendall were to have the land at $3 per acre; that the notes were executed under the belief that said tract contained 640 acres, and they executed the notes under a mistake. ”
The cross-bill puts the specific interrogatories:
Whether the land was not sold at $3 per acre, and the number of acres, and if more than $3 per acre has not been paid, was not the no[e executed under mistake?
Kerr in his answer positively denies that the land was sold by the acre, but as a whole, for the sum of $4,920; that a transcript, of the maps and surveys of the land office were in the probate clerk’s office of Panola county, open for public
ICerr was a non-resident of this state. Graft, his agent, resided at Holly Springs, fifty miles from the land; both of the purchasers lived about two or three miles from it.
Hartsfield testified that he made the trade. He purchased the land by the acre; believed there were 640 acres; the calculations were made at $3 per acre; the note in suit was made in mistake, he believing there were 640 acres; nothing was said about a fractional section.
Kuykendall deposes that he believed, at the date of the purchase from Kerr, and of his purchase from Hartsfield, that tl;ere was 640 acres.
Wooton says there have been transcripts of the maps and surveys from the land office in the probate clerk’s office, since 1849, to his knowledge, and that on the majo this section of land is marked as containing 458 18-100 acres.
Hartsfield testified that he bought the land for himself and Kuykendall, at $3 per acre, and took a bond for title, which was in the usual form: “ My (his) opinion is, that we were to have 640 acres; the calculation was made for 640 acres, at $3 per acre. ”
Witness visited Graft, and offered to purchase the land. Graft seemed to be acquainted with the qualities of the land 5 don’t recollect whether he said with regard to quality.
A section of land ordinarily conveys the idea of a mile square, including the area of 640 acres; but they are not uniformly of that size.
In the case of Fulton v. McAfee, 5 How., 762, authority was given under an act of congress to enter two sections The entry was made on two parcels, which fell' short, each, of 640 acres. It was argued that this was not within the act, because that authorized the entry of two sections, which meant an area of 640 acres each. To that view, the court responded: “That 640 acres is the strictly legal complement o^’
When the quantity is referred to as one of the elements of description, the vendor is not bound by the precise quantity named, unless he guarantees the quantity. Thus, in Phipps v. Tarpley, 24 Miss., 598, 1000 acres more or less were sold. The parties took the risk of excess or deficit. Neither would be entitled to relief, unless the excess or the deficit would be very considerable.
The case of Morse v. Vick, 2 How., 747, is very similar to this case. The description of the land sold was, certificate 879, for fractional section 10, township 16, range 4, east, containing 572 acres; also, certificate 892, northeast quarter of section 17, township 16, range 4, east, and west half of same section.
Certificate 879, for 572 acres, only contained by survey 464 94-100 acres. The half section, which according to the supposition of the parties ought to contain 330 acres, contained 272-£ acres. There was a deficit of the land, supposed by the parties to be sold and purchased, of 146 acres.
To the claim for credit on the purchase, on account of the deficiency, the court applied the doctrine : “ A conveyance of a particular tract, without specification of quantity, does not bind the vendor to warrant the particular number of acres, although there may have been an expectation founded on documents that the number of acres would be as great or greater than it turned out to be on a subsequent survey. The only ‘ document ’ or evidence upon which these parties could found ‘ expectation ’ as to the quantity, was the certificates containing the 4 sections and subdivisions thereof. ’ ”
So in Winthrop v. Sumney, 27 Barb., 198, vendor and vendee were under a mutual mistake as to the southern boundary of the land sold, supposing the line to be a fence dividing from the adjacent proprietor. The fence, however, was some distance north of the true boundary, by reason whereof, the purchaser got only 39.J instead of 67 acres. There was no fraud.
In the case in 2 Band., 63, both parties relying on the fact that the land had been previously conveyed as containing 10,000 acres, upon the general representation of old surveys exceeding the quantity called for, confidently expected the real quantity would exceed the estimated quantity; and this belief operated on both in making the bargain. On a survey, there was a large deficit below the 10,000 acres. Held, that both parties took the risk, and that the vendor was entitled to no rebate from the price.
The contract, as settled between the parties and put in the writing, is a sale in the totality for an aggregate price. If the contract as thus reduced to writing does not prove fraud, accident or mistake, and truly embody and express the terms as agreed on, then it may be modified or corrected so as to correspond with the actual agreement; and parol evidence is admissible for the purpose of showing the discordance between the contract as written and that actually agreed on. Now the vendor and vendee are at issue, as1 to whether there was a sale in gross or per acre. This, perhaps, is stating the matter stronger than the pleadings warrant. The answer is, that the vendor said nothing, nor did Craft, his agent, about the
When parties have deliberately put their engagements in writing, it is conclusively presumed that the whole contract, and the entire extent of their undertakings, were reduced to writing; and oral testimony of a previous, contemporaneous or subsequent colloquium is rejected, as it would tend to substitute a new contract for the one really agreed on. Wren v. Hoffman and wife, 41 Miss., 619, and authorities there cited.
The witnesses speak of no conversation or negotiation between Craft, agent, and these purchasers, or either of them. When the quantity of land embraced in the section was so much as alluded to, the most that is proved is, that a calculation of the amount was made at $3 per acre. It does not appear whether the calculation was mental, or by figures— whether made by Craft or the purchaser. The inference is, however, that if made by Craft, it would have been so stated.. To present the application of the reasoning and principles on which we place our judgment to a state of facts not meant or intended, we add that where the contracting parties bargain with reference to the quantity of land, as for a tract containing so many acres, more or less, the vendor undertakes to sell, and the purchaser to buy, about or proximately the quantity specified. If, however, the tract contains greatly more or less than was in the mind and contemplation of the parties, relief may be had.
We reverse the decree, and remand the cause, with directions to the court below to dismiss the cross-bill of Kuy-kendall, and render a decree in favor of Kerr, the complainant, in accordance with this opinion.
on petition for re-argument:
In response to the petition for re-argument, we remark, we were inclined to hold, as an original proposition, that an agreement to sell a section of land, the ordinary area of a section (640 seres) was meant, or about that quantity ; and if nothing else appeared — if there were a large deficit — relief should be extended to the purchaser.
But we felt ourselves constrained, by the authority of former adjudications — .especially Moore v. Vick, 2 How. In that case the fractional section recited that it contained 572 acres, and there was by survey a deficit of-108 acres. There was also a large deficit in the tract, described as “ north-east quarter, section 17, township 16, range 4, east, and west half of same section.” Certainly the purchaser would have the right to “ believe ” that these subdivisions contained the usual quantity. Yet it was said to be a purchase of the tracts by the gross, and relief was denied.
It is important, and we fully realize it — -especially when decisions become rules of propriety- — -to adhere to them; the more strictly, too, when they have stood a long time.
We "are of opinion on the facts, that this was a sale by the tract, and not by the acre; and that the conduct of the agent of the vendor was free from artifice, fraud, or misrep-resention.
The bill of the complainant was in nature of a bill for specific performance, and subject to the principles applicable
Whereupon, the re-argument is refused.