16 N.J. Eq. 290 | New York Court of Chancery | 1863
The defendant, by deed bearing date on the first of April, 1861, conveyed to the complainant, for
The contract for the purchase of the farm was originally made by Edward Nickleson, the father-in-law of the complainant, and at his instance the deed was made by the defendant to the complainant. The bill charges that the farm was represented by the defendant to Nickleson, at the time of making the contract, to contain one hundred and fifteen acres, and that at the time of' making such representations, and at the time of the delivery of the deed, the defendant well knew that the representations were false and fraudulent, and that there was a considerable deficiency from that amount; and that the defendant also exhibited a map and plot of the farm, with the measurements and contents thereon stated, which he well knew were incorrect and calculated to deceive, and which were exhibited to the complainant and to Nickleson for that purpose. The answer admits that he exhibited the map and plot of the farm, as charged in the bill, and stated his belief that the number of acres were truly stated thereon, but fully and explicitly denies that the representation was fraudulent, or that it was false within the knowledge or belief of the defendant.
It appears, from the answer and from the evidence in the cause, that the land in question was part of a farm belong
The first circumstance relied on as evidence of a fraudulent intent on the part of the defendant is, that in the year 1857, he advertised the farm for sale, as containing about one hundred and twenty acres. The farm was then supposed to contain about one hundred and seventeen acres. If this circumstance could have any significancy as indicating an intention to defraud, it surely could indicate no intention to defraud this complainant. It appears, however, that in 1851 he mortgaged the farm to his mother, describing it as containing about one hundred and twenty acres. It was then supposed to contain one hundred and twenty-eight acres and three quarters. In 1855, after the conveyance to his brother, Forman, he mortgaged the residue of the tract to him, describing it as containing about one hundred and twenty acres. It was then supposed to contain one hundred and seventeen acres. In 1855, he advertised it for sale, as containing about one hundred and twenty acres. These circumstances show that the adjunct of quantity was used as descriptive merely, not as indicating the precise contents of the farm. It affords no
The only material testimony touching the charge of fraud is that of Dr. John W. Scudder. He testifies that before the sale the defendant called on him, in company with his brother, Forman. At their request he made a rough estimate of the quantity of land contained in the lot sold by the defendant to his brother. He told them it would be more advantageous to sell by the lump, than by the acre. He adds: “ I have often heard it said there were one hundred and twelve acres in the farm of defendant. I supposed the contents of the farm would be less than one hundred and twelve acres.” And in answer to the question, whether he stated to defendant that his farm would not hold out one hundred and twelve acres, he answers : “I am not positive, but I think I did toll him that it would hardly hold out, if his survey was correct.” If this evidence is taken as literally true; if, in fact, the witness apprised the defendant prior to the contract of sale that his farm would not hold out one hundred and twelve acres, it is strong evidence in support of the charge of fraud. The witness is a gentleman of respectability, whose veracity is unquestioned. But upon the face of his testimony, there is reason to apprehend that he has fallen into a serious mistake as to the number of acres which the farm was supposed to contain. The witness states that he was called upon to calculate the quantity of land in the lot sold by the defendant to his brother, Forman. He did calculate it, and either he, or the defendant, or his brother, deducted it from the whole contents of the farm marked on the map. The map exhibited was the commissioners’ map, on wdiich the whole contents were marked as one hundred and twenty-eight acres and three quarters. The witness does not allege that he calculated the contents of the entire farm, or that he had any knowledge or suspicion of the error which exists on the commissioners’ map. His conclusion was arrived at simply by deducting the number of acres in the lot conveyed by the defendant to his brother, from the quantity stated on the
The answer of the defendant, and the evidence in support of it, removes all doubt upon this point. The defendant, by his answer, refers to this very interview with Dr. Scudder, as evidence in his behalf. He wmuld scarcely have referred to it if he had known, as he must have done, if the recollection of the witness of the quantity of acres supposed to be in the farm is correct—that it furnished evidence of his fraudulent conduct. Forman Rose, moreover, who was present at the conversation, testifies that nothing whatever was
The second ground of relief is, that the evidence shows a case of mutual mistake, and that in equity the complainant is entitled to a deduction from the price corresponding to the deficiency in the quantity of acres specified in the deed.
The general rule, as laid down by Chancellor Kent, is, that ■where 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’s Com. 467; Mann v. Pearson, 2 Johns. R. 37; Marvin v. Bennett, 26 Wend. 169; Stebbins v. Eddy, 4 Mason C. C. R. 414; Powell v. Clark, 5 Mass. R. 355; 1 Story’s Eq. Jur., § 144, a; 2 Washburn on Real Prop. 630.
So where the land is sold by certain boundaries, or for so much for the entire parcel, any surplus of land over the quantity given belongs to the vendee, and the price cannot be increased or diminished on account of disagreement in measure or quantity. Morris Canal Co. v. Emmett, 9 Paige 168; Innis v. McCrummin, 12 Martin’s R. 425; Gormley v. Oakey, 7 Louis. R. 452. The principle is embodied in the Louisiana Code, Art. 2471.
But where the sale is by the acre, and the statement of the quantity of acres is of the essence of the contract, the purchaser, in case of a deficiency, is entitled in equity to a corresponding deduction from the price. 1 Sugden on Vendors 369; Barnes v. Gregory, 1 Head’s R. 230.
There is a further qualification of the general rule, viz. where the difference between the actual and the estimated quantity of acres of land sold in the gross, is so great as to warrant the conclusion that the parties would not have con
The land conveyed to the complainant is described by metes and bounds. The complainant has the distinct thing for which he contracted. The complaint is, that there was an over estimate of the quantity of acres contained in the tract. It is described as containing about one hundred and fifteen acres. Its actual contents are one hundred and eight acres and eighty-eight hundredths, showing a deficiency of a fraction over six acres. The deficiency is not sufficient to warrant the interference of the court on the ground of gross mistake. No case has gone so far. There is no ground for assuming that the purchase would not have been made at the price stipulated, had the true quantity of land been known. Mr. Nickleson has not so stated. Nor has the vendor ever offered to sell his farm below the price stipulated. He has repeatedly been offered more. There was no absolute representation of the quantity of acres contained in the tract by the vendor as within his knowledge. It is expressly denied by the answer. The whole evidence of both parties shows that the representation of quantity was but an expression of belief, founded on the statement contained in the commissioners’ map. The fact that the parties went together to a surveyor for a computation of the quantity sold off the farm, shows that the reliance was upon the map, rather than upon any representation of the vendor. The case rests on the ground that the sale was made, not in gross, but by the acre. Assuming that the testimony of Mr. Nickleson, upon this point, is strictly true, and that so far as it conflicts with the testimony of the defendant, it is entitled to full credit, it fails to establish the fact that the sale was made by the acre. The utmost that it can be deemed to establish is, that the negotiations for the sale were conducted upon that basis. The con
The bill must be dismissed.