47 Mo. App. 539 | Mo. Ct. App. | 1892
On December 12, 1889, defendant Murphy sold and conveyed by warranty deed to plaintiff Wood a tract of land adjoining the town of Lancaster, Missouri, for the gross sum of $5,750. In the deed the land
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 the different courts of the land; and, while some general rules have been announced and adhered to, it is yet impossible to harmonize 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
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 the 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.
This was not a sale by the aere, but rather the conveyance of certain defined land for a gross sum. Defendant, 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 to 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 acres.” 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 classed as one of these cases. A deficiency of seventeen acres in this rather large body of land worked no very great hardship on the plaintiff. He himself testifies that, even admitting the shortage, the land purchased was then worth much more than he paid for it.
II. As to the claim made on account of defendant’s failure to erect a house on the half acre reserved, it is sufficient to say that no such undertaking is specified in
The judgment in this case was for the right party, and must be affirmed.