Wood v. Murphy
1892 Mo. App. LEXIS 21
Mo. Ct. App.
1892
Check Treatment
Gill, J.

On Dеcember 12, 1889, defendant Murphy sold and conveyed by warranty deed to plaintiff Wood a tract of land adjoining the town of Lanсaster, Missouri, for the gross sum of $5,750. In the deed the land *543was described, by its governmental subdivisions, excepting therefrom, in a description by metes and bounds, a half acre adjoining the town site, which was reserved by the grantor. At the conclusion of these descriptive portions of the deed, these words were added, “containing two hundred and sixty-one, and twenty-seven hundredths acres.” Several months after the making of this purchase plaintiff had the land surveyed, аnd it seems discovered a shortage in the number of acres ( as stated in the deed), as instead of two hundred and sixty-one acrеs he found there were only two hundred and forty-four acres. For this alleged deficiency of seventeen acres he sued the defendant for a return of a portion of the purchase price. In his petition also, plaintiff claims that defendant, in rеserving the half acre of land, agreed to build a dwelling thereon to cost not less than $1,500; that, while such undertaking was not written on the fаce of the deed, yet such was the agreement, and the same was not inserted because of certain assurancеs given by defendant and his attorneys, etc. In this count plaintiff asks a modification and correction of the deed, so as to inсlude this feature of the contract; and that on the contract so made plaintiff asks judgment for forfeiture of the half-aсre tract to him, or for the payment of damages on account of defendant’s failure to erect the house as hе agreed to do. On the trial in the circuit court, the finding and judgment was for defendant and plaintiff appealed.

I. First, now as to the claim of deficiency in acres. On facts similar to those we have here, there has been a great variety of litigation in thе different courts of the land; and, while some general rules have been announced and adhered to, it is yet impossible to hаrmonize ‍‌‌​​‌‌​‌‌‌‌‌‌​‌‌​​​‌​​‌​​​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌​​‌‍the decisions of the different judges. In this state, however, we have indorsed the views of Chancellor Kent, who has said: “In the description of the land conveyed, the rule is that known and fixed monuments control courses and distances. So the certainty of *544metes and bounds will include and pass all lands within, them, though they vary from the given quantity expressed in the deed. The least certain and material parts of the description must yield to those which are the most certain and material, 'if they cannot be recоnciled. * * * The mention of quantity of acres, after a certain description of the subject by metes and bounds- or by other known specifications, is but matter of description, and does not amount to any covenant or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount. Whenever it appears by definite boundaries еtc., that the statement of the quantity of acres in the deed is a mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no inter-mixture of fraud in the case.” 4 Kent’s Com. 466; 3 Washb. Real Prop. [5 Ed.] 427; Tiedeman on Real Prop. sec. 840; Campbell v. Johnson, 44 Mo. 248; Hart v. Rector, 13 Mo. 497; Ware v. Johnson, 66 Mo. 668; Baker v. Clay, 101 Mo. 558.

The enforcement of the doctrine thus stated must preclude plaintiff ’ s recovery for the alleged deficiency in acres, unless indeed defendant was guilty of fraud in the transaction, and ‍‌‌​​‌‌​‌‌‌‌‌‌​‌‌​​​‌​​‌​​​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌​​‌‍the evidence gives no color to-such a charge as that.

Defendant’s entire good faith Is shown ; in estimating the number of acres in the farm he was controlled, by the amounts stated in his title deeds and the government plats filed in the recorder’s office. Prom these it appeared that thе number of acres was, to a fraction of an acre, the same as mentioned in the deed. There is no question but that the land was definitely and properly designated by boundaries ; and if the number of acres named in the deed is inconsistent with the description by metes and bounds, then such additional words, “containing two hundred and sixty-one and twenty-seven-hundredths acres,” must be rejected. *545For case in point see Powell v. Clark, 5 Mass. 355. We might reрeat here, as was there said by Chief Justice Parsons: “If the boundaries of the tracts had included more acres than the quantity exprеssed, yet all within these boundaries, which the defendant had a right to convey, would have passed by the deed; so if less was contаined the plaintiff has title only to what was in fact included. In his purchase he must, therefore, be considered as relying on the boundаries described and not on the contents mentioned.”

This was not a sale by the aere, but rather the conveyance of certain defined land for a gross sum. Dеfendant, it is true, gave his estimate of the number of acres and so stated it in the deed, but the basis of this estimate was at the time known tо the ‍‌‌​​‌‌​‌‌‌‌‌‌​‌‌​​​‌​​‌​​​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌​​‌‍plaintiff. Judge Story says : “ If a purchase is made of a thing in gross, as for example of a farm, as containing in gross by estimation a certain number of acres by certain boundaries; then if the transaction be bona fid,e, and both parties be equally under a mistake as to the quantity, but not as to the boundaries, the sale will be binding on both parties, whether the farm contain more or fewer acrеs.” 1 Story Eq., secs. 144, 195. See, also, Noble v. Googins, 99 Mass. 235. This rule is relaxed only in cases where the excess or deficiency is very great, such as wouldnaturally raise the presumption of fraud or gross mistake in the very essence of the contract.” Noble v. Googins, supra, and authorities cited. This surely cannot be сlassed as one of these cases. A deficiency of seventeen acres in this rather large body of land worked no vеry ‍‌‌​​‌‌​‌‌‌‌‌‌​‌‌​​​‌​​‌​​​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌​​‌‍great hardship on the plaintiff. He himself testifies that, even admitting the shortage, the land purchased was then worth much more than hе paid for it.

II. As to the claim made on account of defendant’s failure to erect a house on the half acre rеserved, it is sufficient to say that no such undertaking is specified in *546the written contract between the parties, nor can the plaintiff be permitted „ to add such contemporaneous parol agreement to the writing. “ Where parties have reduced their contract to writing, it will be conclusively presumed, in the absence of fraud, accident or mistake, that, such writing includes the whоle engagement and the extent and manner of the undertaking.” Morgan v. Porter, 103 Mo. 135. Nor was there sufficient evidence on the equity count to correct the deed, to warrant the court in inserting an obligation on defendant to build the house.

The judgment in this case was for the ‍‌‌​​‌‌​‌‌‌‌‌‌​‌‌​​​‌​​‌​​​​​‌​​‌‌‌‌‌‌​​‌​‌‌‌‌​​‌‍right party, and must be affirmed.

All concur.