22 Vt. 380 | Vt. | 1850
The opinion of the court was delivered by
The first and most important objection, that is made to the verdict is, that the parol testimony was improperly admitted, for the alleged reason, that the whole contract between the parties was merged in the deed and could not otherwise be shown than by the deed itself.
How far a contract for the purchase and. sale of land is .to be considered as being embraced and controlled by the terms of the deed is a question, upon which the authorities are to some extent contradictory and irreconcilable. In England the recital of the payment of the consideration money in a deed of conveyance is regarded as conclusive evidence of payment, binding the parties by estoppel; and to that effect are some of the earlier cases in this country. But the American courts now generally treat the recital of the receipt of the consideration as only prima facie evidence of the amount paid; and as subject to explanation, by showing, by parol, that nothing in reality had been paid, but that the sum agreed upon as the consideration for the conveyance was still due and unpaid. This is the undoubted law of this state. Beach v. Packard, 10 Vt. 96. Lazell v. Lazell, 12 Vt. 443.
The recital in the deed is not, however, much relied upon as an obstacle to the introduction of the parol testimony in this case. But it is insisted, that the conclusion of the description of the land in the deed, — “ the same containing about five and three fourths acres, be the same more or lessf — is to be taken as conclusive evidence, that, at the final consummation of the contract, the plaintiff agreed to accept of the land, and to pay the consideration for it, without reference to the quantity it contained, — that, having received the land for more or less, without reference to the quantity, he can
The reason, why the recital of the receipt of the consideration in the deed is not now held to be conclusive, is, that the object of inserting the consideration is to give effect to the conveyance, as a legal instrument, and not to specify the contract in regard to the price paid, or to be paid, or the fact or mode of payment. The receipt of the consideration being acknowledged for one purpose, it is held to be unjust to allow it to conclude a party upon another matter, not contemplated by its insertion.
Was the statement, in the present case, of the quantity of land in the deed, with the qualification of more or less added to it, designed as a recital of the contract, that had been made between the parties in regard to the price to be paid, or was it merely intended as part of the description of the land to be conveyed? It has long been held, that the statement of a precise quantity of land, as conveyed by a deed, does not bind the grantor to make good that quantity. Thus, it was held in Beach v. Stearns et ux., 1 Aik. 325, that the words “ containing thirty four acres and nineteen rods of ground,” in a deed, added to a description of the land by metes and bounds, did not import an agreement, that the land should hold out that quantity. And in Powell v. Clark, 5 Mass. 355, the still stronger words — “ the lot to contain two hundred acres by measure” — following a similar description of the land, were held to be alike inoperative against the grantor. The reason given, why such words — of a sufficiently affirmative character to import a covenant — should not be construed as such, is, that they were not inserted for the purpose of declaring what the contract had been between the parties in regard to the quantity of land, but merely as a part of the description of the land designed to be conveyed. If words thus made use of, positively declaring the conveyance of a precise quantity of land, are not evidence against the grantor, that he had sold that quantity, it is difficult to perceive, why words, which merely import, that the quantity may be uncertain, should be conclusive proof against the
The purpose, for which the deed is made, is not, to state the contract between the parties in regard to the terms of the purchase, hut to pass the title to the land. The deed is not, strictly speaking, an agreement between the grantor and the grantee. It is executed by the grantor alone, and is a declaration by him, addressed to all mankind, informing them that he thereby conveys to the grantee the land therein described. The object is to pass the title, — not to declare the terms upon which the land had been sold and the mode in which payment was to be made. And in declaring that the land described contains about so many acres, more or less, the grantor merely says, that the land included within the boundaries before stated shall pass to the grantee, whatever may be the quantity— whether it be more or less than the quantity stated. It would be a forced construction of such language, thus used, to hold that the grantor intended thereby to make any declaration in regard to the particular terms of the purchase, or the mode by which the price to be paid for the land had been arrived at between the parties.
It is not intended to say, that the terms of a contract of sale may not be recited in a deed ; and when the design to do so is apparent, effect should doubtless be given to the recital. But when the language of the deed, as in the present case, is general, and the words used may have their full force, as descriptive of the land, we think they should not be construed to conclude the parties in regard to the terms of the contract.
It is not to be denied, that it would be difficult to reconcile some of the authorities cited in the argument with the conclusion to which we have come; and upon what I considered to be the weight of authority I was at first inclined to hold, that the parol testimony should have been excluded. But on farther consideration and reflection I have become satisfied, that the view we have taken is founded on the true nature and object of a deed of conveyance,— especially a conveyance by deed poll, and that any other rule, than that we adopt, would give an effect to the instrument not contemplated by the parties to do, and would consequently operate un
It is farther objected in behalf of the defendant, that the facts proved were insufficient to authorize a recovery. It is said, that the parties having each an opportunity of ascertaining the quantity of the land, and there being no fraud in the Gase, the principle of caveat empt&r applies, and that the plaintiff is to be considered as having taken the land, in regard to the quantity, at his own risk. It is undoubtedly a general rule of law, well settled in this state, that in the absence of fraud and warranty, the purchaser takes the property at his own risk, as it regards its quality, and where the quantity is made the subject of estimation only, a similar rule would probably apply. But when the quantity of the thing purchased is agreed to be ascertained by count, weight, or measure, and there is an error in the count, weight, or measure, such error must be a proper subject of correction. In the present case the price to be paid was to be determined by the quantity of the land, and the error appears to have been one of mere computation. It would seem, from the bill of exceptions, that the lines of the land were rightly measured, but the quantity erroneously computed. The parties were under a mutual mistake, by reason of which a greater amount of money was paid to the defendant, than he was entitled to by the contract. The excess, above that which the defendant was to receive by the contract, belongs in equity and good conscience to the plaintiff, and we think he may well recover it in this action.
It may be added, in reference to another objection made in argument, that this is not a case, in which it was necessary for the plaintiff to rescind the contract, or to offer to rescind it, before bringing the action; because when the money is recovered, the parties will be left in the precise situation, in which they were to be placed by the contract. Johnson v. Johnson, 3 B. & P. 162. Miner v. Bradley, 22 Pick. 460.
The result is, that the judgment of the county court is to be affirmed.
