75 Tenn. 413 | Tenn. | 1881
delivered the opinion of the court.
On the 6th of EeHaary, 1863, the defendant Wallace sold to the complainant Moses a small tract of
The first three of the purchase notes and the greater part of the fourth note were paid in 1864 with Confederate treasury notes at a discount of a little over twenty-five per cent. The residue of the fourth note and part of the fifth note were paid after maturity in legal tender currency. Suit having been brought at law upon the last note, this bill was filed on February 5, 1875, to enjoin its prosecution, upon the ground
The correctness of the chancellor’s construction of the language of the purchase notes has not been seriously .called in question. The evidence does not show that Confederate treasury bills were bankable funds at the time when the trade was made, and the complainant concedes in his testimony that there was no positive agreement that they should be received in payment of his notes. The decree of the chancellor is sought to be impeached by the appellant, first, in allowing any deduction on account of the failure of title to the
The land to which the title fails lies in one corner of the tract sold. The sale was of the whole tract in gross, not by the acre! The defendant admits that there was a difficulty about the boundary lines at that corner, but says that complaihant also knew about it, and that neither considered it of any importance. The complainant admits that he knew the land in a general way, as he did the lands of others of his neighbors, and that he had known it from the year 1849, when he bought the adjoining tract. He denies, however, that he knew about the defect of title until long after the purchase. He drew the title bond, and cannot remember how he obtained the calls of the land as written therein, but thinks it was probably from papers furnished by the defendant. The bill states, and one of the witnesses proves that the fraction of land in controversy “ is partly. enclosed ” by the claimant of the better title, but it does not appear that the enclosure existed at the time of sale. Upon these facts, and the long delay of the complainant in the assertion of his rights, it is earnestly argued that no relief can be granted for the admitted deficiency.
It is well settled in this State that where land is sold in gross, not by the acre, without any stipulation as to quantity, and the boundaries are correctly given, the purchaser takes the risk as to quantity, and, in the absence of fraud, no deduction will be made in the' price for a deficiency in quantity, unless the defi
The general rule, in equity as at law, undoubtedly is that a party has a right to stand upon his contract, and claim the benefit of all that it gives. It is only in rare and extreme cases, where the tract of land is clearly defined by natural or artificial boundaries, and well known to the purchaser, who actually receives all that he intended to buy and the vendor intended to sell, and by some error in the calls of the contract the boundaries include land belonging to third persons, that equity avíII refuse to follow the letter of the contract, and execute it according to its
The decree below, in its estimate of the value of the land as to which there is a failure of title, proceeds upon the assumption that the bill is, in substance, an action upon the title bond to recover damages for the failure to convey. In such an action, it has been held in this State that the measure of damages is the value of the land at the time of the breach, with or without interest as the jury may determine, and that the date of the breach is when the purchase money is paid, or tendered and refused, the bond being like the one before us: Hopkins v. Yowell, 5 Yer., 305; Shaw v. Wilkins, 8 Hum., 647. It has, however, been also held that where the agreement is that the title shall be made when the purchase money is fully paid, the covenant to convey is dependent upon the condition, whether treated as precedent or concurrent, that there has been a payment of the purchase money in full, or its equivalent a tender and refusal. Unless, therefore, the vendee' can aver a performance of the condition, or its equivalent, he fails to put the vendor