Lee v. Hester

20 Ga. 588 | Ga. | 1856

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The testimony of Stephens as to the private, conversation which transpired between Lee and himself immediately preceding the sale, was properly rejected. It was, no, part' of the res gsstoe. ’.

[2.]. Next, as. to what was sold. Counsel does ,no,t insist that the advertisement was. conclusive; still, he. attaches, ip his argument much importance to it, as showing what really was sold.

The object of the advertisement is two-fold: to give, notice to bidders, and to show that the authority granted by the Court has been executed. Both at Sheriff’s sale and administrator’s sales, nothing is more common than to sell less property than is advertised. And we doubt not the right of the administrator in this case, notwithstanding he advertised to sell all of lot No. 79, lying in Troup County, to limit the sale to twenty acres, or any other quantity. And whether he did! or not, was a question of fact for the Jury.

If he did so restrict the sale and caused the crier to make-public proclamation of the fact at the time the property was • offered in market, all persons were bound by it, whether they heard it or not. It was the duty of purchasers to ascertain? ■what was selling; and this they could readily do by application to the crier. Had this bill been filed to rescind the contract on account of the alleged mistake, it would have been-entitled to a much more favorable hearing. Eor where a mistake has accrued as to a material or essential particular in a sale, forming the main or essential inducement to it, the buyer having been misled by the advertisement, there would be an apparent equity in holding that a compliance should not be insisted upon. There is much in such a doctrine to commend itself to every man’s conscience.

Rut that is not this case. Mr. Hester’s position is, that whatever the administrator may have sold, he bought, supposing he was getting the title to the whole of lot No. 79, in Troup County. And therefore, the administrator must make him a deed to the whole. We do not see the justice or the logic of such a claim. Others may have known that twenty acres only was selling if he did not, and regulated their bidding accordingly. And hence, the land may have been knocked off to him at a much lower price than it^mlghfao.therwise have commanded. If the administrator be right in point" of fact, the competition was for twenty acres only, and not' for the thirty-eight or forty which the lot contains.

We have examined the bill and answer, and we think the latter is responsive to the charges in the bill which relate to the understanding between the parties, both before and after the sale, as to what quantity of land was intended to be sold and actually sold.

[3.] The cases do not seem to define with accuracy the precise effect to be given in a deed to the qualifying expressions, “ be the same, more or less,” which are in such general use. They have been held to cover a deficiency of upwards of fire out of forty-one acres. (1 Ves & B. 875;) but not of one hundred out of three hundred and forty-nine acres. (2 Russ. R. 570.)

[4.] If land be sold by measurement and the price controlled by reference to this, these terms would not include a part or nearly double the quantity of acres specified. But where a settlement or plantation is conveyed, and the price not fixed in reference at all to the quantity of ground, perhaps neither these nor any other qualifying words would count.