7 Ga. App. 764 | Ga. Ct. App. | 1910
1. The plaintiff sued on certain promissory notes given for the purchase-price of land for which he had executed to the defendants a bond for title, in which the land was described in the following language: "All that tract or parcel of land, situate, lying, and being in the county of Newton, said State, and containing forty-two acres, more or less, bounded as follows: Northeast by William Lazenby; west by Eobert Jackson; south by the Carmel Land & Improvement Company, and H. H. Armstrong’s estate; east by J. H. Eoquemore, Jr.” This was plainly a sale of land by the tract, and not by the acre. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41).
2. If the case were not extraordinary, in that the plaintiff’s counsel state in their briefs and argument that they conceded at the trial, and now .concede, that the plaintiff is willing to allow a fair abatement of the purchase-price, it would be easy to control
The parties supposed that the tract contained 42 acres; in fact it contained only 28.26 acres, creating a deficiency of 13.74 acres. The price paid for the land was $4,200, an average of $100 per acre. The'land was very irregular in shape. It lay in the town of Mansfield. Eour acres of it fronted on Poplar street and was, on account of its availability for building purposes, worth more than $200 per acre. The remainder, for the greater part, lay In field and woods to the rear of these front lots and to the rear of other building lots which had previously been cut off. How one can readily see that if a person should own a tract which he represented to contain 5 acres, on which was situated a country residence worth $9,000, and should sell the tract, including the house, for $10,000, and it turned out that there were only 4 acres, it would not ordinarily be fair and equitable to abate the price $2,000.
As the judge directed a verdict allowing a deduction of $1,374, thereby holding, as a matter of law, that the abatement on account of the deficiency should be based on the calculation of multiplying the number of acres in the deficiency by the average price per acre, we must decide the case on the theory of the evidence most favor
We may take occasion to say, before concluding this opinion, that the defendants claim that the sale was by the acre, and not by the tract; that the description in the bond for title was placed therein by mutual mistake. If so, it should be reformed; and we suggest that, if this view of the transaction is to be insisted on, a court of equity, and not a court of law, is the proper forum. It is not yet too late to file a bill in equity. Judgment reversed.