— Plaintiff bought of defendant a tract of land receiving from him a warranty deed therefor, reciting a consideration of three hundred and eighty dollars and describing the land as follows: “The north half of the northeast quarter lying north'of Grand River of section twenty-eight (28), township fifty-seven (57), of range twenty-three (23), in Livingston county, Missouri, containing thirty-one and seventy-eight hundredths acres, more or less.” There were only seventeen and one-half acres in the tract and plaintiff brought this action for $200 damages by reason of the shortage in acres. Plaintiff claimed that he bought the land at the rate of $12.50 per acre and that defendant falsely and fraudulently represented to him that there were the number of acres mentioned in the deed, knowing there were only seventeen and one-half acres. The judgment was for plaintiff.
Notwithstanding the deed recited there were thirty-one and seventy-eight hundredths acres in the tract, yet as the description was by metes and bounds the latter will govern and control; unless there is fraud shown. Wood v. Murphy,
All conversation and representation preliminary to the execution of the deed will become merged in the deed and its terms will control. So, therefore, any preliminary and contemporaneous bargaining and representations bp tween the plaintiff and defendant ought not to be heard against the provisions of the deed unless there has been fraud, accident or mistake. There is no claim of accident or mistake and we are confined to'the question of fraud alone.
The evidence bearing on the charge of fraud relates to matters prior to the consummation of the contract and does not touch upon the execution of the deed or the recitals therein or the provisions thereof. It consists in evidence
In these circumstances, we are of the opinion that plaintiff should not be heard to charge fraud on the defendant. The law requires every one in the possession of his intellectual faculties to use them for his own protection and not to depend upon the courts to act as a standing guardian over his own carelessness, improvidence or credulity.- This is a fundamental principle evidenced by a long line of authority, in a great variety of cases. Cahn v. Reid,
In Massachusetts, a man sold a piece of land by metes and bounds, falsely representing it to contain fifty acres when he knew that, in fact, it only contained twenty-eight acres. The purchaser knew the land and went over it before purchasing, but undertook to excuse himself for not seeing there were not fifty acres by stating that the land was so uneven that its actual extent could not be seen from any one point. After disposing of representations as to quality which appeared in the case, the supreme court of that state said:
“The representations concerning the quantity of land*187 which formed the subject of the contract come within the same principle. The vendors pointed out to the vendees the true boundaries of the land which they sold. This fact is established by the verdict of the jury under the instructions which were given at the trial. The defendants had therefore the means of ascertaining the precise quantity of land included within the boundaries. They omitted to measure it, or cause it to be surveyed. By the use of ordinary vigilance and attention, they might have ascertained that the statement concerning the number of acres, on which they placed reliance, was false. They can not now seek a remedy for placing confidence in affirmations which, at the time they were made, they had the means and opportunity to verify or disprove.” Gordon v. Parmelee,2 Allen 212 .
We do not go so far as to say that a man who has means of knowledge not at hand, as for instance where he might travel to a distant place and see for himself, or where he might examine the records for title, can not have relief by reason of his failure to utilize the means. But where the matter does not involve scientific, expert or peculiar knowledge and is before him, he will not be protected in the refusal to use his senses. Cahn v. Reid,
The supreme court of the United States in speaking of false representations said: “Where'the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of another.” Slaughter’s Admr. v. Gerson,
It is apparent that plaintiff failed to make out a case and that defendant’s demurrer to the evidence should have been sustained. The judgment will therefore be reversed.