57 W. Va. 98 | W. Va. | 1905
Lead Opinion
Whether a certain sale of real estate, the contract having been executed by conveyance and payment of all the purchase money, was a sale by the acre or in gross, is the first question presented in this case; and it being held to have been a sale in gross, the second is whether the sale can be rescinded in equity on the ground of a considerable excess, found upon surveying the tract of land, both parties having been ignorant, at the time of the sale, of the quantity of the
In 1884, W. W. Newman, a resident of Virginia, died seized of a tract of land in Fayette county, this State, described in his deed by metes and bounds, as containing two hundred acres and thirty-seven poles, and leaving his widow and two sons suiwiving him. On the 23rd dajr of October, 1895, the widow and sons conveyed the lands to James Kay, in consideration of $4,800.00 of which $1,000.00 was paid in cash, and for the residue of which the purchaser executed his four negotiable notes in equal amounts, payable in one, two three and four years. This deed described the land thereby conveyed in the exact language used in the old deed by which it had been conveyed to W. W. Newman, in 1814, and reserved a vendor’s lien for the unpaid purchase money.
Some time afterwards, Kay had the land surveyed and found that the tract contained two hundred and seventy-two and two-tenths acres, and had the land book corrected accordingly. Knowledge of this excess of seventy-two acres having come to the Newmans, they caused a notice to be served on Kay on the 26th day of October, 1900, reciting the discovery of the excess, claiming they had sold by the acre in ignorance of the quantity, demanding payment for the excess at the contract price of $24.00 per acre, or a rescission of the sale, and averring their readiness and willingness to repay the purchase money with interest. Kay having refused to do either, they brought this suit, alleging in their bill the facts relating to the sale, hereinbefore set out, and, in addition thereto, that, at the time the deed was executed, they believed the tract contained only the quantity mentioned in the deed, and so represented to J. M. Richards who negotiated and consummated the sale; that, at the time, they did not know it contained a larger quantity; and that they were informed and believed said Richards and Kay accepted the deed with the understanding that the quantity of land was as stated in the deed.
A few days before the deed was executed, the Newmans executed to Richards, “his heirs and assigns,” an option on the land for twenty days, at the price of $24.00 per acre, describing the tract as containing, by estimation, two hundred acres, and the bill sets up the option and alleges that when
It is further alleged that Kay has leased the land to Frank Lyman, who is made a defendant, for the purpose of mining and removing the coal underlying it, and that Lyman has released it to the Low Moore Iron Company, but that none of the coal had been mined at the time of the institution of the suit; and plaintiffs aver their willingness, in case the sale shall be rescinded, to carry out the terms of the lease made to Lyman and the one made by Lyman to the iron company.
. The prayer is that Kay be required to pay plaintiffs for said excess at $24.00 per acre with interest from the date of the deed, or that .the sale and deed be rescinded, and that they may have general relief.
Kay demurred to the bill, and, his demurrer being overruled, he answered, denying that Richards was his agent in the matter of the purchase, averring that he purchased from Richards for the sum of $5,440.00, giving him $644.00 in addition to the $4,800.00 paid to the Newmans; that he had no notice or knowledge of the option; that Richards acted for himself and represented that he had authority to sell and procured and delivered the deed as aforesaid; that "the sale was one in gross, the land having been purchased by the defendant to solidify his holdings of surrounding lands, and irrespective of its acreage-; that such was the inducement and understanding of the parties; that the quantity of the land was easily ascertainable and could easily have been known by plaintiffs, had they exercised ordinary care;. that they had
Depositions were taken and filed by both parties, and, on the hearing, the court pronounced a decree in favor of the plaintiffs for $2,341.44, awarding execution therefor and granting the plaintiffs leave for further proceedings against the land, should said sum and the costs be not paid. From this decree, Kay has appealed.
As the rights and liabilities of the parties to a sale of real estate by the acre materially differ from those arising out of a sale in gross, it becomes necessary to determine, in the first instance, whether the sale now under consideration was by the acre or in gross. The principles governing the construction of deeds and contracts of sales of real estate are exhaustively considered and accurately defined in the case of Crislip v. Cain,, 19 W, Va. 438. In reaching his conclusions, Judge G-beeN, who delivered the able opinion of the Court, in that case, reviewed and analyzed all the Virginia decisions, as well as all the leading cases decided by other courts, and the principles deduced by him from them were
So much of point 18 of the syllabus as relates to the rule for determining what is a sale in gross reads as follows: “If the vendor by his written contract agrees to convey, or by his deed does convey, for a specified price a tract of land described by metes and bounds or otherwise with the words-added ‘containing a specified number of acres,’ this on the face of such contract or deed is a contract not by the acre but in gross and without any implied warranty of the quantity. * * * And if in addition to the exact specification of the quantity of the land the contract or deed on its face shows, that the price to be paid for the land is a multiple of the number of acres specified, this would render the deed ambiguous, as to whether it was a contract in gross or by the acre.” In point 19 the effect of ambiguity in the contract or deed, resulting from the circumstances of the mathematical relation of the price to the number of acres, is stated as follows: “If such deed or contract is rendered ambiguous on its face in the manner just spoken of, the court for aid in interpreting the same may consider parol evidence of the circumstances, which surrounded the parties, and their situation, when the contract or deed was made, and also the conduct of the parties in carrying the contract into execution; . but the court can consider no other sort of parol evidence, such as the declaration of the parties before, at the time of or after the execution of the deed or contract; nor can the court call in aid any kind of parol testimony to alter, explain, or modify the written contract or deed, if it is unambiguous on its face.”
This deed states the whole amount of purchase money at $4,800, and then conveys and describes the land in the following terms: “The said F. E. Newman, W. C. Newman and E. W. Newman do grant unto the said James Kay all the following real property, situate,” &c., (giving its location and metes and bounds,) ‘ ''containing WO acres a/nd thirty seven squa/re poles.^
It specifies the aggregate price and the number of acres. No account is taken of the thirty-seven square poles, nearly
If the ambiguity of the deed on its face be conceded, the admissible evidence is wholly insufficient to establish a sale by the acre. Much of it consists of declarations of intention which could not be admitted at all. Only the circumstances which surrounded the parties and their situation at and before the making of the contract and their conduct in carrying it into execution can be considered.
Kay knew nothing about the quantity of the land nor had he anything to do with the Newmans personally. He never saw them, nor corresponded with them. They lived near Richmond and knew nothing about the quantity of the land, except that their deed called for two hundred acres and thirty-seven poles. All communications between the Newmans on the one side, and Kay on the other, were had through Richards. He says he had purchased some propertyTor Kay in the neighborhood of the land in question, and showed him a map of the Newman land and suggested that its situation with reference to lands purchased, or negotiated for, by Kay, made it desirable property for him, whereupon Kay told him to buy it if he could; and that he then corresponded with the Newmans who said they would sell it at $25.00 per acre. Then, as claimed by Richards, he went to Kay and offered it to him at $30.00, and was told to go on and get it, whereupon he went to Richmond and persuaded the owners to give him the option hereinbefore described at $24.00 per acre, came back with it, showed it to Kay, offered to do what was right with
A great deal of this evidence could not be considered. Declarations of parties as to intentions are inadmissible. Kay was engaged in the effort to buy, or get control of, several adjoining tracts of coal lands with the view to obtaining enough in a body to enable him to make an advantageous sale to some person desiring to engage in mining on an extensive scale, and the Newman lands were found to be desirable for combination with others which he had bought or contem
This view is strengthened by the circumstance of the conduct of the grantors, both before and after the sale. They were content to rely upon the representation as to quantity in the old deed under which they held. Neither before nor after did they cause any survey to be made. It nowhere, appears that any inquiry as to the actual quantity of land was ever made by them. This conclusion is in exact accord with that of this Court in Hansford v. Coal Co., 22 W. Va. 70. In that case, the deed specified $8,000 as the price, and four hundred acres as the quantity, of the land. The analysis of the admissible evidence, as given by Judge SNYDer in the opinion of the Court, is as follows: “ Was this a sale in gross? It is jprima facie such sale; but inasmuch as it appears on the face of the deed that the consideration is an exact multiple of the number of acres specified therein, the deed is thereby rendered ambiguous as to whether it was in fact intended by the parties to be a sale in gross or by the acre; and whether it is the one or the other must be deter
Such being the character of the sale, no action or suit, at law or in equity, based upon the contract, for the recovery of compensation for the excess can be maintained. The grantee obligated himself to pay $4,800.00 and no more. He did not agree to pay a certain sum for each acre of land that might be found in the tract, but to pay a lump sum for the tract of land. It is not suggested nor pretended that there was any fraudulent act on the part of the grantee, operating as an inducement to the grantors to enter into the contract, or in any other way injuring them. Whether knowledge of the excess on Kay’s part, fraudulently concealed from the grantors, would give a right of action against him as for a deceit, need
‘ ‘But no court of equity in such case of mutual innocent mistake, neither x^arty being guilty of any fraud in the sense above explained, has a right to modify and alter the contract of the parties, so as to make it correspond with what, the court may think it xn-obable, would have been the terms agreed upon by the xaarties, had they not by means of such innocent and mutual mistake been ignorant of the actual facts at the time, when the contract was entered into. All the court can do in such a case is to rescind the contract. It cannot modify the contract; for that would -really be making a contract for the x>arties against their consent and then enforcing it, which would be usurpation of a very dangerous IDOwer.”
There are some instances in which, ux>on a contract of sale in gross, a recovery may be had by the vendee in case of a deficiency in the land sold. Sisecification in the deed of the exact quantity of the land sold, without any qualifying words whatever annexed, renders the contract ambiguous as to whether or not, although it is one of sale in gross, the vendor, by such x>ositive affirmation of quantity, did not warrant the quantity. The effect of this is twofold: First. To overcome the presunyption that the grantor did not intend to warrant the quantity, the circumstances which surrounded the XDarties, their situation and their conduct in carrying the written contract into execution are admissible. If an intention to warrant is thus shown, there may be a recovery of conrpensation for deficiency, on the warranty. Crislip v. Cain, pts. 18
It must be observed that what is said in the preceding-paragraph relates to deficiency in quantity, not excess. There may be an act of fraud, giving a right to the vendor to recover compensation for an excess from the vendee, when the sale is in gross, but the foregoing • principles laid down in Crislip v. Cain. are not applicable to cases of excess. Moreover, that case distinctly and emphatically asserts that, in such cases, if both parties were mutually and innocently mistaken as to the quantity, and there turns out to be an excess, there can be no recovery of compensation therefor. But it is. declared in that case that the contract itself may be rescinded, torn up, annulled and destroyed, and the parties restored
In Crislip v. Cain, point 14 of the syllabus, it is declared: “If it be a contract for a sale of land in gross, and the number of acres eontained in the tract, sold or conveyed is named, and on survey it turns out afterwards, that there is either a deficiency or excess in the number of acres in the tract, under some circumstances a court of equity might rescind the contract or annul the. deed beeause of a considerable mistake of the parties as to the number of acres in the tract, though such mistake was mutual and innocent, and neither party was guilty of any fraud in the sense in which fraud is above explained. Such rescission could not be made, unless the mistake was so material as to show that it affected the substance of the contract, and that the minds of the parties had not really come together on the terms stated in the contract or deed.” In W. M. & M. Co. v. P. C. C. Co., points 15 and 16 of syllabus, substantially the same proposition is asserted. In Hansford v. Coal Co., point 7 of the syllabus, it is said: “Where such deed is on its face a sale in gross, if it is subsequently ascertained that there is either a deficiency or an excess in the quantity of land specified therein, and it is shown that the error in the quantity arose from a mutual and innocent mistake of the parties, a court of equity may, in some cases, upon proper pleadings and proof, annul the deed and rescind the sale, but in the absence of fraud, actual or constructive, in either party such court can allow no abatement for a deficiency or compensation for any excess.” In Pratt v. Bowman, the same proposition is asserted, and a recovery for excess decreed, because the purchaser had sold the land and put it beyond the power of the vendor to obtain relief by rescission. In the last named case, sales in gross are divided into three classes, two of which are declared to be sales at hazard, forbidding rescission. The third, in which it is held there may be rescission, is described as follows: “Sales in which it is evident from extraneous circumstances, such as locality, value, price, time, the conduct, conversation, and character of the parties, that they did not or ought not to contemplate
It is insisted that these successive enunciations of this rule of rescission are not binding upon the court for the reason that they are dicta. In the first case, W. M. & M. Co. v. P. C. C. Co., the bill sought the correction of a deed by a change of one of the lines, described in it, so as to make it conform to what the plaintiffs believed to have been the contract actually made. After making a disposition of this contention adverse to the plaintiffs, Judge Hoffman examined the pleadings and evidence in the case to ascertain whether there could be rescission of the contract, because of an admitted excess of eight hundred and fifty acres in the tract which had been conveyed as one containing six thousand one hundred and twenty-three acres. Evidently this was done to see whether the bill was susceptible of amendment so as to give relief, under the rule that, where a plaintiff has a good case on the evidence, but his bill is defective in its allegations, he is permitted to amend, so that substantial justice majr be done between the parties. Finding that about six years had elapsed between the times of the'discovery of the excess and the filing of the bill, he concluded that whatever equity the plaintiffs may have had was then barred by their laches. In Crislip v. Cain,, the proceeding was for an abatement from the purchase money on account of a deficiency, but it did not seek rescission. However, if it had been apparent to the court that relief could have been given upon amended pleadings, it is not to be doubted that the defects in the pleadings would have been indicated and leave to amend granted. But the Court seems to have concluded that there was no mistake and, consequently, no ground for rescission. In Hansford v. Coal Co., the Court dealt with an appeal from a decree, dismiss-' ing a cross-bill, setting up a claim for compensation for an excess of sixty-eight acres in a tract of land sold as one containing four hundred acres, at a price equivalent to twenty dollars per acre, and from an order refusing leave to file a bill of review to the same decree for error of law. Viewed as one seek
One of the best definitions of the term obiter Motum is said to be that given by Folger, J., in Rohrbach v. Ins. Co., 62 N. Y. 47, 58. He said: “Dicta are opinions of a judge which do not ¿mbody the resolution or determination of the court, and made without argument, or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter Meta are such opinions uttered bjr the way, not upon the point or question pending, as if turning-aside from the main topic of the case to collateral subjects.” In U. S. v. Clark, 96 U. S. 211, Mr. Justice Strong said of an expression of opinion in another case, after stating the exact point decided therein: “ The case called for nothing-more; and, if more was intended by the judge who delivered the opinion, it was purely obiter. ” Many definitions are more liberal. These give the principle strictness and rigidity, and even under them, it is manifest that the declaration of the rule in Pratt v. Bowman, is in no sense obiter. It is applied to the facts and made the basis of the decision. It would be difficult to reach any other conclusion as to the views expressed in W. M. & M. Co. v. P. C. C. Co. But in Crislip v. Cain, and Hansford v. Coal Co., it may be otherwise. In all of them, the proposition is formally and. solemnly incorporated in the syllabi, as if deliberately stated upon mature reflection and consideration. As it is manifest that the Court has, in at least two cases, applied the rule, it
Search for a precedent in the decisions of Yirginia up to the date of the division of the State, and in those of this State prior to that of W. M. & M. Co. v. P. C. C. Co., to sustain the proposition that rescission may be had because of a considerable excess when the sale is in gross and the parties to the deed were ignorant of the quantity in the tract and without fault, will be made in vain. Up until that time, sales in gross had been uniformly held to be contracts of hazard from which no relief could be had, in the absence of fraud, except upon the ground of a mutual and innocent mistake as to some matter going to the very essence and substance of the contract. A difference in quantity, however great, was not deemed to be of the substance of the thing contracted for. Its materiality, by a sale in gross, was deemed to have been eliminated from the contract. Both parties took the risk of variation from the acreage stated in the deed, if any was stated. Thus, in Tucker v. Cocke, 2 Rand. 51, 66, Judge Green, delivering the opinion of the court, in a case similar-to this, said: “There are cases in which the mutual error of the parties, without default in either, may be a just ground for rescinding a contract. As, if the error be in a matter which is the cause of the contract, that is, in the substance of the thing contracted for, so that the- purchaser cannot get what he bargained for, as in the case of a purchase of milb tary lands on Paint Creek, stated to be located under specified warrants, and the warrants were located elsewhere; and of the purchase of an obligation at the risque of the purchaser, and the paper turned out to be forged, or the obligor to have been previously discharged from the obligation, under the statute of bankruptcy. In such cases the contract ought to be vacated, even if it had been executed; and, if both the parties, in the first case, verily believed that the warrants were located on Paint Creek, and, in the other, that the obligation was genuine and the party bound by it; the object in the first case, being to buy lands on Paint Creek; and, in the other, to buy a valid and subsisting obligation, the error would go to the substratum of the matter contracted for. Chamberlyne v. Marsh, 6 Munf. 283; Armstrong v. Hickman, Ibid. 287. But, if in the one case, the warrant had really
What Judge Green meant by reference to error affecting the substance of the contract, going, as he says to “the sub-sPixohom of the matter contracted for,” is illustrated by a number of decided cases. Thus, in Chamberlyne v. Marsh, 6 Munf. 284, the vendor intended to sell, and the vendee to buy, lands on Paint Creek and those described in the written evidence of the contract were not on that creek. In Graham v. Hendren, 5 Munf. 183, there was a misunderstanding as to the identity of the land, in consequence of which the con
These illustrations sufficiently show what is meant by a mistake which affects the substance of the contract. It must be something affecting the identity or actuality of the thing which forms the subject matter of the contract, going beyond the mere quantity, quality or value of that thing. And that where the description is correct and there is no fraud nor any mistake affecting the substance of the contract in the sense indicated, there can be no relief by rescission or otherwise, is maintained by the great weight of authority. “Whenever it appears by definite boundaries, or by words of qualification, as ‘more or less,’ or as ‘containing, by estimation,’ or the like, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.” 4 Kent Com. 467. Noble v. Googin, 99 Mass. 231; Flagg v. Mason, 141
There are a few cases which hold that a considerable excess or deficiency in quantity, the parties having been ignorant of the quantity and free from fault, gives right to compensation or rescission, even though the sale is in gross. The leading case of this class is Hanrison v. Talbot, 2 Dana (Ky.) 258. Compared with Crislip v. Cain, it will be found to be a gross misinterpretation of the Virginia decisions and especially of Quesnell v. Woodlief, 2 Hen. & Munf. 173, 6 Call, 218, and Nelson v. Matthews, 2 Hen. & Munf. 164.. That case also makes a distinction between executory and executed contracts, and was itself of the foi'mer class. Other authorities recognize the same distinction. íáug. Vend, chapter 8, section 5, p. 491, Says: “Where the contract rests vn fieri, the general opinion has been, that the purchaser, if the quantity be considered less than it was stated, will be entitled to an abatement, although the agreement contain the words more or less, pr by estimation, or even stronger words. But in a case where the estate was stated in the contract to contain by esti/mation forty-one acres, be the same more or less; and upon an admeasurement, the quantity proved to be only between thirty-five and thirty-six acres; and the purchaser claimed an abatement; the master of the rolls decided against the claim. Upon a motion in Portman v. Mill, it appeared thgt the lands were described as containing, by estimation, three hundred and forty-nine acres, or thereabouts, be the same more or less, and the agreement stipulated that the parties should not be answerable for any excess or deficiency in the quantity of the premises, but that the premises should be taken by the purchaser at the quantity, whether more or less; and the actual number of statute
Though the case of Crislip v. Cain, does not recognize it, the distinction is not without reason. In executory contracts, the court is called upon to exercise its discretionary powers to decree specific perfox-mance, and the defendant sets up his objection before the transaction is completed. In the case of an executed contract, completed in all respects, the application is for rescission, and here again the court may exercise discretion, and it is well settled that a court of equity will often refuse specifie performance, and thereby deprive the party of the benefit of his contract, under conditions which would not move it to a rescission of the contract, whereby the same result would be attained. Thompson v. Jackson, cited. Since Harrison v. Talbot, is predicated upon this distinction, it is hardly persuasive authority in this case, it being one in which the contract has been fully carried into execution. However, in the opinion in that case, it is suggested that, had the instrument been a deed, conveying the land instead of a contract to convey, the vendor might still be entitled to relief, but, whether by rescission or a decree for compensation as upon the contract, is not indicated.
Among the cases most often cited as arxthority for the jxroposition that a sale in gross may be rescinded, on the ground of a mutual mistake as to the quantity of the land, is Harrison v. Talbot, cited. In it, however, there was no decree of rescission. In spite of the plain, simple and just rule, that a court has no authority to make a contract for the pai-ties, in that case, the court, having ascertained that there was an excess of ninety acres in a tract sold for $6,000.00 as one containing four hundred, decreed a conveyance by the vendor, without his consent, of four humdred acres of the land, leaving him the small quantity of ninety acres, thus compelling him to divide his farm into two parts. It was not a case of rescission, nor one merely refusing specific performance. It is a case in which the court virtually made a new contract for the parties and enforced it. It is followed by the case of Harrell v. Hill, 19 Ark. 102, another
The supreme court of Texas, in O'Connell v. Duke, 29 Tex. 299, professedly following Ha/rrison v. Talbot, decreed a release of a surplus of three hundred and forty-eight acres in a tract of land conveyed as containing seven hundred and fifty acres or more, described as being all of a tract of “ eight hundred and fifty acres or more” except one hundred acres sold off previously. The deed also contained a covenant, binding the vendor to refund in case the quantity should i>rove to be less than seven hundred and fifty acres. To ascertain the intent of the parties, parol evidence of their verbal negotiations and declarations was admitted and considered. This case goes beyond the Kentucky precedent, for the case was an exe-uted one. Both treat the contracts as sales in gross and both violate the rules of interpretation laid down by this Court and by the earlier Virginia cases. It is onty in cases of ambiguity that parol evidence is admissible to determine the character of the contract, and then the rule allows only evidence of the situation of the parties, the circumstances which surrounded them and their conduct in carrying the contract into execution. To permit the introduction of evidence of their conversations and declarations of intention, would work a plain violation of the rule which forbids the admission of parol evidence to contradict or vary written instruments.
These cases and a few other similar ones were examined by Judge GtReen in Crislip v. Cain and condemned as unsound, because they decreed compensation for excess, as upon the contract. Whether they were proper cases for rescission, he does not inquire. To this subject, his mind does not seem to have been fully directed. He does intimate, and even say, there are instances of mutual mistake as to quantity, where the sales are in gross, which warrant rescission, but he makes no analytical or critical examination
No doubt the views previously expressed by Judge Hoffman in W. M. & M. Co. v. P. C. C. Co., cited, were accepted by Judge Green as being sound, practically without investigation on his own account, and it is to be observed that Judge Hoffman announced the proposition apparently without having bestowed upon the question his usual care and consideration. He cites not' a single authority for it and Judge Snyder, in Hansford v. Coal Co., adopts it from Crislip v. Cain without question. From these unsatisfactory cases, the Court assumed, in Pratt v. Bowman, that the principle was firmly settled in this State and adopted the classification made in Harrison v. Talbot. Hence, it seems to have gotten into our decisions more by accident than as the result of mature consideration.
It being admitted that a sale in gross is a sale at hazard as to quantity, it is a contradiction to say relief may be had on the ground of mistake, when there is a deficiency or excess. If there is no risk as to quantity, the sale is clearly not one
‘ ‘In a sale in gross, a contract of hazard on both sides, the vendee is not entitled to relief, in case of a deficiency. ” Keytons v. Brawfords, 5 Leigh 39. “If a tract of land be sold for eleven hundred acres more or less at a fixed price; and it turns out, that it is less, the purchaser will not be relieved in equity. ” Pendleton v. Stewart, 5 Call. 1. Cabell, J., in Russell v. Keeran, 8 Leigh 19-20, sajes: “I am of opinion that the ■decree of the chancellor of the 13th December, 1828, is wholly ■erroneous. It declares that although the sale of land was a sale in gross, yet it was not a sale of hazard as to .quantity. Tins is contrary to first principles; for every sale
The conclusion indicated by these views is supported by the great weight of authority. It cannot be assumed that, in so many cases of large deficiencies and excesses in which relief has been denied because no warranty or fraud was established, it did not occur to the courts and counsel that it might be had by the shorter and easier remedy of rescission. The manifest import of these decisions is that no relief can be had, in any form, respecting the subject matter of the hazard. This is the view expressed by Chancellor Walworth in Veedor v. Fonda, 3 Paige (N. Y.) 94, 98. He said: “It seems now, however, to be generally understood that where the contract has been consummated, without any fraud, misrepresentation, or concealment as to the real quantity, the courts will not inquire whether there has been an ac tual mistake as to the supposed quantity contained within certain specified boundaries. But this result has been produced more from the necessity of quieting interminable litigation, than from the real equity of the principle established by the decisions.” This is quoted and approved by the New York court of appeals in Faure v. Martin, 3 Seld. 210. In Winch v. Winchester, 1 Ves. & Beam 375, the court held: “Purchaser not entitled to abatement for a deficiency in quantity; the particular describing the estate, as containing
In Stebbins v. Eddy, 4 Mason (U. S.) 414, a suit in equity for relief in respect to a deficiency, Story, Judge, after discussing a number of cases, including an anonymous case in 2 Freem. 107, in which a man who had purchased a tract of land described as containing one hundred acres, more or less, which had turned out to contain only about sixty, was denied any relief, said: “In short, the latest cases generally concur with the doctrine laid down in the anonymous case in 2 Freeman 107. It seems to me, that there is much good sense in holding, that the words ‘more or less,’ or other equivalent words, used, in contracts or conveyances of this sort, should be construed to qualify the representation of quantity in such a manner, that, if made in good faith, neither, party should be entitled to any relief on account of deficiency or surplus. Nor am I prepared to admit that the fact, that the sale is not in gross, but for a specific sum, by the acre, ought necessarily to create a difference in the application of the principle. I do not say, that cases may not occur of such an extreme deficiency as to call for relief; but they must be such as would naturally raise the presumption of fraud, imposition or mistake in the very essence of the contract. Where the sale is fair, and the parties equally innocent, and the quantity is sold by estimation, and not by measurement, there is little, if any hardship, and much convenience in holding to 'the rule, cmeat em/ptorP
This review of the authorities- concerning the subject of sales in gross, without warranty of quantity or fraud perpetrated by either party, and the policy of the law, which im
In a sense, the mistake complained of is attributable to the negligence of the complainants. It was their property, and, some inquiry as to the quantity, as by a survey, for instance, before disposing of it, would not have been a manifestation of extreme caution, wariness or prudence, but they made none. Such survey would have cost them no more, perhaps, than it has cost Kay. They discovered the excess about five years after the sale, by mere accident, as a result of Kay’s survey, and now ask to be permitted to take advantage of his industry and enterprise. A leading American case, holding this to be inequitable, is Grymes v. Sanders, 93 U. S. 55, holding that: “Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence which may be fairly expected from a reasonable person.” ' In the opinion, it is said: “The appellees paid their money without even inquiring of any one professing to know where the lines were. The courses and distances specified in the deed show that a surveyor had been employed. Why was he not called upon? The appellants sat quietly in the dark, until the mistake was developed by the light of subsequent events. Full knowledge was within their reach all the time, from the beginning of the negotiation until the transaction was closed. It was their own fault that they did not avail themselves of it.” In Campbell v. Ingilby, 1 DeG. & J. 392, 405, Lord Justice Turner said: “In this case I think that the existence of the plaintiff’s claim can be attributed only to his own neglect, and I am of opinion that, under such circumstances, he is not entitled to the compensation which is claimed by this bill.” For similar applications of the rule, see Manser v. Davis, 6 Ves. 678; Jennings v. Broughton, 17 Beav. 234; Atwood v. Small, 6 Cl. & Fin. 338.
For the reasons aforesaid, the decree complained of will be reversed and the bill dismissed with costs both in this Court and in the circuit court.
Reversed.
Concurrence Opinion
{concurring)-.
EXCESS.
Take the case of a deed conveying' a tract of land either not specifying, or simply specifying, quantity; without any qualifying words affecting the quantity, there being no fraud. Shall the grantor have either pay or rescission on the ground of excess in quantity?
Such a deed is a sale in gross, that ;is, one of hazard or risk as to quantity. Crislip v. Cain, 19 W. Va. 438; Depue v. Sergent, 21 W. Va. 326; Hansford v. Coal Co., 22 W. Va. 70; Pratt v. Bowman, 37 W. Va. 715. The statement of quantity, in such a deed, is descriptive of the tract, not a covenant or warranty of quantity. 4 Kent 466; Caldwell v. Craig, 21 Grat. 132. To allow pay for excess or rescind would deny the essential character of the deed given it by law, that of hazard, the law would contradict itself. It would, in one breath, say that the deed is one of hazard, and in the next breath sajr, that it is one of warranty of quantity; for how can either pay or rescission be given unless there is warranty or covenant of quantity? Furthermore, to allow such pay or rescission would deny the legal character of the deed contrary to the old rule that a contract in writing shall not be contradicted, altered or varied by oral evidence. The law stamps such a deed as one in gross. You allow evidence
But do our cases hold that in cases of excess there can be relief? They say there can be no money compensation decreed, unless the purchaser is willing to pay; but some say there may be rescission. I contend that Western M. & M. Co. v. Peytona, 8 W. Va. 406, is obiter as to its recognition of right of rescission. It did not enter into the decree; the decree is not based on that; it did not even allow an amendment as to it. (Bouvier L. Diet., word “Dictum”.) The opinion shows that it was not intended to be decided. The same may be said of Hansford v. Coal Co., 22 W. Va. 70. Certainly expressions in Crislip v. Cain, allowing rescission for excess, were obiter, it being a case of deficiency, not excess. As to Pratt v. Bowman, 37 W. Va. 715, we were in error in holding a right to rescission for excess. We were misled by the cases just mentioned. Argument and re-argument have brought this matter of excess to close scrutiny in the present case. Those cases were squarely assailed and a demand made for reconsideration of them as regards this subject. I admit reluctance to depart from a former case— even one, and there is but one — ; but the law ought to be laid down right when it is to operate constantly in daily transactions in future. Shall we persevere in error when we believe it to be error, and it is challenged as error?
Is this ruling practically unjust? When quantity is given in deeds, who thinks of its being warranted? When that is designed .the sale is made by the acre. Judge Tucker said in Keytons v. Brawford, 5 Leigh, p. 48, as many of the books say: “I have looked upon such mention of quantity as, in general, matter- of description only, and not of itself as giving a character of a contract by the acre. I am satisfied
DEFICIENCY.
Though deficiency is not involved I will say that much authority in Virginia and elsewhere can be found denying compensation in case of such a deed as is involved in this case, because the sale is in gross. But we have numerous cases holding that in such cases there may be, under circumstances, compensation for deficiency, where the grantor assumes to represent in the deed the tract to contain a certain quantity. Crislip v. Cain, 19 W. Va. 438; Anderson v. Snyder, 21 Id. 632; Hansford v. Coal Co., 22 Id. 70; Sine v. Fox, 33 Id. 521; Depue v. Sergent, 21 W. Va. 326. They hold that where a deed states a tract to contain, a fixed quantity, if that was relied on and induced the purchase, it is ground of compensation for deficiency, as the statement of quantity, whether made in ignorance of the true quantity or not, is, in law, fraud. Such is not the case as to excess. Where a deed makes no statement of quantity, but conveys the tract, there is no compensation. Allen v. Shriver, 81 Va. 174.
I confess that I do not see that Crislip v. Cain, is sound in holding that where a deed merely states quantity it prima facie gives right either to abatement or rescission for deficiency, in absence of actual fraud. When once the law puts upon the deed the seal of a sale in gross, the statement of quantity is merely further description of the tract, not a warranty of quantity, and therefore cannot be the ground of relief. The law does treat that statement of quantity in that light. See citations above. It is conceded in the Oris-lip Case that mutual mistake of quantity is not the ground of relief, but that the statement of quantity is because of a legal fraud. How can this be when the deed is a sale in gross? By oral evidence you deny the writing. But there is a difference between excess and deficiency where the deed states
It seems not necessary to say that I have not been speaking of sales by the acre. I desire to be understood as speaking of deeds passing legal title, not of executory contracts or what equity would do in a suit for specific performance.