26 Gratt. 721 | Va. | 1875
delivered the opinion of the court.
The court is of opinion, that the decree of the Circuit court of Shenandoah was erroneous in dissolving the injunction awarded in vacation, and dismissing the plaintiff’s bill. The evidence conclusively shows that the sale by Allen to Triplett was a sale per acre, and not a sale in gross. The contract of sale filed with the answer provides “that the said Lemuel Allen doth covenant and agree to sell to the said L. Triplett the home tract of land (with appurtenances thereto belonging), containing one hundred and sixty-six acres, three roods and twenty-eight poles,” with certain boundaries described—“together with one hundred and fifty acres of mountain land,” for the consideration of ten thou
The court is of opinion that under the contract of the parties and the evidence taken in the cause, the sale was a sale per acre, and not a sale in gross, and that the appellee is bound to make good this deficiency at the average value of the home tract per acre.
But if the contract can be considered a sale in gross and not per acre, the insertion of the words “ more or less” in the deed does not affect the case. Bor it is well settled by repeated decisions of this court, that
Ten acres in a tract of one hundred and sixty-six acres, especially when worth at least $50 per acre, is not one of these “small deficiences” to be covered by the phrase “ more or less;” and the vendor must be held liable, and the vendee compensated for such deficiency. Hor is the vendor at all relieved from obligation to make good this deficiency by the fact that a part of this land, to the extent of about four acres, was at the time of the sale vested, by proceedings of condemnation, in the Manassas Gap Railroad Company; and that vendee knew, when he bought the land, that said railroad passed through one side of this land. Knowledge of the fact that a railroad passed through the home tract does not alter the question, or change the obligations of the parties. The vendee, under his contract, had purchased one hundred aud sixty-six acres, three roods and twenty-eight poles of the home tract. How much of the home tract had become vested in the railroad company was no concern of his. He had a right to presume that the quantity called for by his contract was still left after deducting that in the possession of the railroad company. The company had acquired a fee simple right to the land held by them, for which no doubt Allen had received full compensation. So far as
The court ought to have perpetuated the injunction certainly, to an amount sufficient to cover the deficiency in the land sold, and have proceeded to declare, upon the evidence in the cause of the value of the land and the deficiency in the value of acres proved, what amount is due to Triplett.
The 'court is further of opinion, that no deduction in the purchase money can be made on account of the right of way which is claimed by the appellant to have been guaranteed to him by the appellee. The deed conveys Samuel Allen’s “ right of way across fthesa Allen’s farm now owned by Tiphen W. Allen to the aforesaid mountain land.” To ascertain what Samuel Allen’s right of way is, reference must be had to the will of Ehesa Allen. The third clause of said will provides as follows: “I further desire that my son Lemuel shall have one hundred and fifty acres of tim
Triplett, as to his legal rights, can only stand upon such as are secured by the will to Lemuel Allen. It does not appear that these rights have been denied to him. It will be time enough to act upon this question when Triplett has failed to recover his right to the same right of way which the will secures to Lemuel Allen. All that this court now means to decide upon this branch of the case is, that Triplett is only entitled to such right of way as Allen had under the will of Bhesa Allen, his father. What that may be, is a subject of litigation between the parties, and remains to be determined; but the value of the said right of way is still undetermined, and is not to be taken into the estimate of the deficiency for which the appellee is responsible.
The court is therefore of opinion, that the said decree of the said Circuit court, dissolving the injunction and dismissing the plaintiff’s bill, is erroneous;, and that said decree be reversed, and this cause re
The judgment was as follows:
This day came again the parties by counsel; and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, that the decree of the said Circuit court is erroneous, in dissolving the injunction and dismissing the appellant’s bill; the court being of opinion, that the sale from Allen to Triplett was a sale per acre, and not a sale in gross, and that the appellee Allen is bound to make good the deficiency which is shown to exist.
The court is further of opinion, that in taking account of this deficiency, and of what amount the appellant is entitled to recover from the appellee, the value of the right of way is not to be estimated; the court being of opinion, that the appellee conveyed by his deed the same right of way which under the will of his father was secured to said appellee Allen, and there is nothing in the record to show that this right of way has been denied to him.
It is therefore ordered and decreed, that the said decree be reversed and annulled, and that the appellant recover against the appellee his costs expended in the prosecution of his appeal here. And the cause is remanded to said Circuit court, with instructions to
Judgment reversed.