27 Barb. 196 | N.Y. Sup. Ct. | 1858
The defendant supposed he was purchasing a certain piece of land containing 67 acres, and his grantor supposed he was selling and conveying such piece. It turns out that the piece of land as described in the deed does not contain aE the land the parties supposed it contained, and that the quantity actually conveyed is only 39| acres; instead of 67 acres. There is no question of
The point is made, and argued, that the description in the deed from Shaw to the defendant included the land to the south fence, and that as the defendant had been ejected from 27jr acres of the land, the covenants of his grantor have been broken, and the defendant may recover his damages, and may, therefore, now have them abated from the bond and mortgage. This position cannot be sustained. The southern boundary, as described in the deed from Shaw to the defendant, is “ by land heretofore deeded to Clark Hilton.” The north line of the land conveyed to Hilton, was susceptible of certain ascertainment, and it was the south line of the land conveyed, to the defendant, as described in the deed. Distance and quantity must yield to this line, which could be located with certainty. In a case not reported, the court of appeals held that a line described as parallel with the line of the lot, must be so located, though such location would violate the description as to course and distance. But it is unnecessary to refer to this case in the court of appeals. By all the well settled general rules of construction, relating to descriptions in deeds, the land conveyed extended no further south than to the land previously conveyed to Hilton. The least certain and material parts of the description must yield to those which are the most certain and material, if they cannot be reconciled. (4 Kent's Com. 466.) In this case the lengths of the east and west lines, and the estimated quantity of land, must give way to the certain southern boundary. There has been no breach of any of the covenants in the deed from Shaw to the defendant.
The defendant’s counsel also insists that the defendant is entitled to relief, on the ground of a mistake of fact. That both of the parties to the deed were under a mistake as to an important fact, is not denied. The referee so finds.' What
The defendant has all the land described by the boundaries in his deed. He has not the strip of land 4 chains 87 links wide, across the lot, containing 27J- acres, which he supposed and believed was included, by the description in his deed. The case is to be' examined in the absence of fraud, and in the absence of any representations of any kind, unless we are to understand, from the fact that the fences had been long standing, and from 'the finding of the referee, that both parties believed that the fences marked the north and south lines of the land conveyed; that the parties went upon the land; and that the fences were pointed out by Shaw as indicating the north and south lines of the land conveyed.
In regard to mistakes of fact, Story says the general rule is, that an act done, or contract made, under a mistake, or ignorance of a material fact, is voidable and relievable in equity. (1 Story’s Eq. 140.) There must not be any culpable negligence. The fact must be material to the act or contract, and essential to its character and an efficient cause of its concoction. (§ 141.) It is not necessary that, there should be any presumption of fraud, in cases of mutual mistake, going to the essence of the contract. (Id. § 142.) The cases cited, are where the thing in relation to which the contract was made did not exist, or had ceased to exist, when the contract was made, both parties being ignorant of the fact. In the case before us, the land described in the deed existed, and the defendant has it.
In Dale v. Roosevelt, (5 John. Ch. R. 174; S. C. in court of errors, 2 Cowen, 129,) cited by the defendant’s counsel, Eobert Fulton had purchased a tract of land of Eoosevelt, upon the Ohio river, in Indiana, upon the representations of Eoosevelt that there was a valuable coal mine on the land on
In Champlin v. Laytin, (6 Paige, 189,) the executors and trustees of Mrs. De Eeyster’s estate, in the upper part of Hew York, made a map, in 1821, laying’ the land out into lots, with a view to sale, and on the map delineated a street. In 1822 they sold lots with express reference to the map. They sold and conveyed a lot “ bounded north-easterly by Fifth street,” the street delineated on the map. In 1828 the executors and trustees sold, to the defendant Laytin, two lots, lying wholly in Fifth street, as it had been mapped. He paid a portion of the purchase money, and gave bonds and mortgages for the remainder. The deeds, each, contained a cov
Again : the fact that they had sold lots in reference to the proposed street, was in the highest degree important to the respondent. He had a right to that information, that he might judge for himself, or consult counsel in relation to the legal consequences of such an act. Further on, the judge says: “ This, then, is a case where the parties have bar
In Belknap v. Sealey, (2 Duer, 570,) the plaintiff brought his action to rescind an executory contract for the purchase of land in Brooklyn. The defendant supposed the quantity of land to be 8 acres and 154 perches;,- and so represented to the plaintiff, who entered into the contract to purchase at $14,000, paying at the time $1000. The real quantity was short of 5 acres. The judge trying the cause found that the quantity of the land formed an essential inducement to the plaintiff to purchase, and that the actual quantity was substantially and essentially less than the quantity which the plaintiff supposed he was purchasing; and so the plaintiff ivas misled as to the quantity he purchased, the representations made to him by the defendant being in fact untrue, though not intentionally false. The plaintiff was relieved from the contract; and, upon appeal to the general term of the superior court, the judgment was affirmed; and so also in the court of appeals. Justices Emmet and Bosworth delivered opinions for affirmance, and both notice the fact that the contract was still executory. -Bosworth says “it was proved that the agreement was procured by a misrepresentation of material facts, forming an essential inducement to the contract. It is a case of mutual mistake, induced by untrue representations of the defendant. If they were not innocently made by him, he committed an actual fraud. But though made innocently, equity will not permit the defendant to hold the plaintiff to a contract which he has by such means induced him to enter into, when the thing contracted for is so
In Voorhees v. De Meyer, (2 Barb. S. C. R. 37,) the defendant entered into a contract with the assignee of the plaintiff, to sell to him “lots Ho. 9 and 11, in Ho. 20 in great lot Ho. 34, 187J acres, for $750.” Under an act of the legislature of 1790, commissioners surveyed and divided great lot Ho. 20 into smaller lots arid marked the boundaries. In 1811, or 1812, one Oockburn subdivided lot 34, one of the subdivisions of great lot Ho. 20, and produced said lots 9 and 10, and, according to his survey, these lots contained, Ho. 9, 45vr acres, and Ho. 11, 142-1- acres. It appeared from the evidence, and the court so found, that Cockburn’s survey of lot 11 extended north of the north line of lot 34, which he subdivided, and included 43 J acres of lot 35. The defendant had no title to any portion of lot 35, or to this 43J acres. The parties contracted in reference to the Oockburn survey, the defendant intending to sell the lot as laid out and marked by Oockburn, and the purchaser supposed he was buying the lot so marked, which actually contained the quantity of 142J acres. The action was brought by the assignee of the purchaser, to compel the vendor to perform his contract of sale, and as he could not make a good title to the 431 acres, which it was found, as a matter of fact, he had contracted to sell, he was decreed to perform the contract as far as he could, and damages were allowed for the deficiency of land. The case, when understood, is simply the ordinary case where a vendor cannot make to the vendee a good title to all the land he has agreed to sell, and the vendee is willing to take that portion to which a good title can be given, and compensation in damages for the portion to which the vendor cannot make title. The case has no application to the one we are considering.
-I have referred thus fully to the cases mainly relied upon "by the defendant’s counsel, for the purpose of ascertaining with precision, the facts and the reasons upon which the de
In the present case it does not appear that any representations of any kind were made by Shaw, the defendant's grantor. All that appears is, that there were fences which the parties supposed to be upon the south and north lines of the farm; that there were 67 acres between these fences. Heither party was aware of the fact that the south fence was upon the land of Hilton's heirs, and 4 chains 87 links from the true line. The simple truth is, that the Holland Land Company, in conveying to the Farmers' Loan and Trust Company, in 1838, made the mistake, in giving for the eastern boundary 12 chains 10 links, instead of 7 chains 23 links, and for the west boundary 11 chains 94 links, instead of 7 chains 7 links. Possession had been taken, many years before the conveyance by Shaw' to the defendant, according to the .description in the deed from the Holland Land Company,
Grover, Marvin, and Davis, Justices.]
I have come to the conclusion, with some hesitation, that the defendant is remediless, it is a case where the fence between adjoining owners has not been put upon the true line. While it thus stands, one of the owner's conveys his farm, giving as a boundary the line of his neighbor’s land. The question, in the absence of adverse possession, &c. remains open for a reconstruction of the fence upon the true line. Such cases are constantly arising, (not "$vhen the error is as great as in the present case,) and I am not aware that any action has ever been instituted by a purchaser against his grantor, on the ground of a mistake as to the true line, though both" parties saw the actual division fence and supposed it was; properly placed upon the line. T'o permit an action in such a case would, I apprehend, be a source of much litigation, and would be extremely dangerous. The grantor, when he bounds the land which he conveys, by the land of another, does not undertake that the visible division fence is upon the true line, but he leaves the true line to be ascertained. The grantee can always protect himself by requiring a different description, as making the fence the boundary, or leaving it solely to courses and distances. In my opinion the judgment should be affirmed.