144 Iowa 670 | Iowa | 1909
The plaintiff exchanged certain property in Eldora for the northwest fractional one-fourth of section 30 in township 90 N., of range 20 W. of fifth P. M., and charged that defendant orally represented that the tract was one hundred and fifty-six and sixty-five one hundredths acres, whereas it actually measured but one hundred and thirty-two acres, and because of such difference demanded damages. In the course of the negotiations the defendant upon request produced an abstract of title with caption: “Abstract of title to the following described premises situated in the county of Franklin, State of Iowa, to wit: The northwest quarter of section (30) thirty, township (90) ninety, range (20) twenty, containing one hundred and fifty-six and sixty-nine one-hundredths acres according to the original entry book.” The sixth and twenty-second 'transfers also recited “containing one hundred and fifty-six and sixty-nine one-hundredths acres,” the seventh that numher “more or less,” and in others the quarter was" de
With reference to the abstract the court instructed the jury:
Such abstract of title contains a statement to the effect that the tract in question contains one hundred and fifty-six and sixty nine one-hundredths acres. If you find that the defendant delivered such abstract to the plaintiff at the time of the negotiations between them, and that at the time he so delivered such abstract he knew that it contained such statement concerning the acreage, and if the plaintiff at the time read such statement in the abstract, then the delivery of such abstract under such circumstances would amount to a representation on the part of the defendant that the tract in question did contain one hundred and fifty-six and sixty-nine one-hundredths acres. But if you find that the defendant Surls orally informed the plaintiff that the tract in question contained a less number of acres than there was shown upon such abstract, then such oral statement would prevail, and in such case the delivery of the abstract could not be regarded as a representation on the part of defendant, concerning the acreage.
The instruction was erroneous in that it proceeds on the theory that the abstract was something more than an exemplification of the public records. We held otherwise in Fagan v. Hook, 134 Iowa, 381. The caption merely recited the number of acres “according to the original entry book,” and no proof of its inaccuracy was adduced, nor was there any evidence that the recitals in the record of the several deeds were erroneous. The abstract purported to
Other assignments of error require no attention. Reversed.