| Ala. | Nov 15, 1902
It i.s well settled, that if a contract is not for the sale of a specific quantity of land, but is for the sale of a specified tract, or a designated lot, or parcel, by name or description, for a gross.' sum, and the transaction' is bona fide, a mutual mistake as to quantity, but not as to the boundaries, will not entitle the purchaser to compensation, and will not be a ground for rescission. In such cases, where the sale is not at a. specified price by the foot or acre., “the purchaser is entitled to the quantity contained within the designated boundaries of the grant, be it more or less, without reference to quantity or measure of the premises which is mentioned in the contract or conveyance.”—Winston v. Browning, 61 Ala. 80" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/winston-v-browning-6510145?utm_source=webapp" opinion_id="6510145">61 Ala. 80. In the case cited, the court quotes approvingly Avhat Chancellor Kent said in 4 Kent, 467, that “the mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other specification, is but matter of description, and does not amount to any covenant, or afford any ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount, 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 is not of the
The description in the bond in this- casé is: “I-have to-day sold to said Pearson a certain tract of land in Tallapoosa county, Alabama, described as follows, Viz.: Two hundred and thirty-four (234) acres of the 'east half of section twenty-one, township' twenty-four, bounded on the north by land of Glenn Vines, on the east by' lands of Lum Heard, Mrs. Henderson and Reese Henderson, on the south by the Henderson lands and the George Berry lands, on the west by the lands of Elias Berry and I. W. Heard, Jr. Said lands corner on the southwest corner with Boss place.”' The price agreed to be paid for the tract of land was $700, in four annual payments of $175 each. It is not shown that this price was estimated by the acres, at so much per acre, but it appears, that it was $700 in gross for the tract. The tract was bounded on the north, east, south and west by definite boundaries, rendering it certain, and identifying it as specifically as if a block in a city or town had been sold and described as bounded on each side by a named street. The mention of the number of acres, after or before this certain description of the subject, by its artificial metes and boundaries, which was open to observation, and as to which -each party might have been mistaken, was a mere matter of description and not of the essence of the- contract. The purchaser was entitled to all the land included in the tract specifically described, though it might have been greater than the quantity stated, and the vendor was not liable if there, was a discrepancy.—Winston v. Browning, supra; Hodges v. Denny, supra; Wright v. Wright, 34 Ala. 194" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/wright-v-wright-6506490?utm_source=webapp" opinion_id="6506490">34 Ala. 194.
. There is no pretense' that the vendor knew of the alleged mistake, in the quantity of land when he sold it to the vendee, or that he practiced any fraud or decep
The demurrer to tin1 plea, 12, was properly sustained.
Affirmed.