Plaintiff sued to recover damages for an alleged deficiency in the area of land defendant conveyed to Mm by warranty deed. The cause pleaded in the first count of the petition is a breach of warranty and in the second, false and fraudulent representations respecting the acreage of the tract. A jury was waived and after hearing the evidence the court found for plaintiff on the first count and for the defendant on the second. Judgment was rendered accordingly and defendant appealed. The judgment is founded on the conclusion that the land was warranted in the deed to contain 19% acres while, in fact, it fell two acres short.
The land in question is part of a larger tract platted by defendant as an addition to the city of Columbia under the name of “F. W. Smith’s subdivision of part of southwest quarter of section 14, township 48, range 13. ’ ’ The plat filed August 9,1910 was made, acknowledged and filed by defendant in accordance with the provisions of Chapter 97, Revised Statutes 1909, and purported to give an accurate map of the addition, “particularly setting forth and describing, first,
Following the platting of the addition, defendant, on January 7, 1911, entered into a written contract with plaintiff by the terms of which he sold and conveyed the lots in controversy for the consideration of $4250. The description in the contract was “Lots number one (1) and fifteen (15) of F. W. Smith’s subdivision part of southwest quarter of section fourteen (14) township forty-eight (48) range thirteen (13) west, containing in all twenty acres. ’ ’
It will be observed that the agreed consideration was at the rate of $212.50 per acre. In a letter ac
The actual consideration paid by plaintiff was $4,196.87, or, at the rate of $212.50 per acre for a tract containing 19% acres. Afterward plaintiff had the lots surveyed and inaccuracies were discovered in the dimensions shown on the plat which reduced their actual area to a fraction less than 7% acres. The court, however, put the shortage at two acres and awarded ■damages on a valuation of $212.50 per acre.
We are indebted to counsel for briefs and arguments presenting the respective positions and contentions of the parties with singular clearness and ability. Plaintiff concedes the point of defendant that as to the cause.on which the judgment was recovered, i. e., .a breach of warranty, the evidence of prior or contemporaneous oral or written agreements was inadmis■sible since such agreements became merged in the deed which must be accpted as the final and exclusive contract between the parties. [Vivion v. Hendricks,
Point is made by defendant and conceded by his adversary “that reference to a map or plat in the description of a lot or tract of ground incorporates such map or plat in the deed,” citing Shelton & Heatherly v. Maupin,
“Where a description in a deed contains a statement of quantity, courses and distances and monuments, in case of a conflict, the monuments will control, and in such case proof that distances or quantities are short does not prove that the grantee does not get what his deed calls for.
“Where the description in a deed shows a sale in gross and the grantee gets all the land called for there is no warranty of quantity in the absence of a special warranty, even though the quantity stated is not contained in the land actually described.
“ Where land is described as bounded by the lands of others, as called for in such description, the lines of the land of the adjoining owners will control a call for distance or quantity.
“We admit the correctness of the ruling in the case of Hendricks v. Vivion,
These concessions of legal propositions proceed from a proper view of the law and reduce the debatable ground of the case to a very narrow compass.
Taking the deed and the recorded plat which it adopts and incorporates as embracing all of the determinative facts of the case, the final question for our decision is this: Conceding for argument that reference is made in those instruments to monuments and that ordinarily boundaries fixed by monuments must prevail over statements of distances or quantities, should that rule obtain in a case where the grantor is the person who executed and filed the plat to which express reference is made in the deed1?
Paraphrasing what was said in City of Cleveland v. Bigelow,
These provisions impose on the proprietor in the most positive terms the duty of making an accurate map or plat and among the things that must be stated and accurately stated are “the precise length and width” of each lot to be offered for sale. A subsequent purchaser of a lot from a proprietor charged with the performance of such duty, has a right to rely upon the fidelity of the recorded plat and to assume as true facts the law demands shall be stated in the plat with accuracy. He is not required to employ a surveyor to test the accuracy of such compulsory statements. As was well said in McCall v. Davis, 56 Pa. St. 431: “It is a most graceless answer on the part of the founder that he (the purchaser) might have tested the accuracy of the plan before he bought. To ask the purchaser of each lot to survey a whole village plan would be to disappoint the expectation of the founder himself, for he would make but few sales on such terms. In such case, the absence of willful fraud on the part of the vendor will not relieve him from the injury his mistake has entailed upon others.”
Our own Supreme Court has settled the question adversely to the position of defendant in the case of Whitehead v. Atchison,
So in the present case, every prompting of fair dealing, as every consideration of equitable estoppel, operates to deny defendant the benefit of monuments referred to in the recorded plat, to destroy and rob of all legal significance and effect, statements of dimensions and of consistent areas made by the proprietor in avowed compliance with a most positive statutory mandate. Such statements must be regarded as being in the nature of covenants or warranties, instead of mere representations. In legal effect, defendant covenanted with his grantee that the courses and consequent areas of the lots were accurately described on the plat, and plaintiff is entitled to recover for the shortage regardless of whether the errors were due to design or mistake. The judgment is for the right party and is affirmed.