4 W. Va. 273 | W. Va. | 1870
Aaron Stockton sold to Coons, Picket & Co., a tract of 2,000 acres of land at the price of 50,000 dollars, by contract in writing, bearing date on the 20th day of December, 1856; for the payment of the purchase money Coons, Picket & Co. executed to the said Stockton their several promissory notes,for different sums, due at different times. The said Stockton afterwards, on the 21st day of February, 1857, by deed, with general warranty, conveyed the said land to the said Coons, Picket & Co., and the said
First. It is charged that at the time of the purchase of said land by Coons, Picket & Co.-, the said Stockton represented that, to begin at a point sixty poles above the mouth of Sta-ton’s run, at the point named in the contract, and run thence with the line of Mrs. Lewis’ tract, according to the calls of the contract, all of the coal in the hill would be included, while, in fact, it is not all included.
■ Second. It is charged that there is a large deficiency in the quantity of the land, caused by a conflict of boundary on the back line.
The answer of Stockton to the cross bill denies the charge of misrepresentation, and also denies that there is any conflict of boundary on the back line. No depositions were taken in the cause, and there is no evidence to sustain the charge of misrepresentation, or the charge as to the conflict of boundary; the report of the surveyor made in the cause, in fact, shows conclusively that there is no conflict as charged. These questions are, therefore, out of the case.
It appears, however, that the deed, as made by Stockton, by mistake, includes within its lines 39 acres to which the said Stockton had no title, and which was not included in the lines of the contract.
The error assigned is, that the decree is erroneous in not directing the specific execution of the contract as it was made, if possible; that any mistake made by the parties in an attempt to execute it should be corrected, by requiring a performance as stipulated.
If a specific execution of this contract could be decreed, it would be error not to do so, as the record abundantly shows a mistake in attempting to execute it. But it does not appear that the contract can be executed specifically, because it does not appear that Stockton is the owner of any adjoining lands within the description of the contract' from which the deficiency can be made up. The only alternative, on the case made in the record, is to grant relief by abating from the unpaid purchase money the price of the 39 acres of land included in the deed by mistake.
The abatement should be according to the contract price of the purchase, or at the rate of 25 dollars per acre, and not according to the relative value of the said 39 acres, because the said 39 acres were not, by the terms of the said contract, included in the sale, and were included in the deed by mere mistake.
For the error of the court below in decreeing an abatement of the purchase money for the relative value of the 39 acres, and not according to the contract price, the decree complained of will have to be reversed, with costs to the appellant, and the cause remanded for further proceedings.
Decree reversed.
