Glover v. Bullard

Hart, J., (after stating the facts.) The chancery-court correctly found that the deed in question should be reformed so as to vest the title in the land in sections 8 and 9 north of Tyronza River, as it actually flows, in the defendant. The undisputed evidence shows that the agent of the defendant represented to the agent of the plaintiffs that the tract of land intended to be sold was situated south qf the Tyronza River as it actually flowed at the time.' The agent of the plaintiffs and of the defendant were on the land at the time, and it was intended by. both parties that only the land south of Tyronza River as it actually flowed should be sold, and it was their intention to describe this land only in the contract of sale and in the deed which was subsequently executed pursuant to the terms of the contract. Both parties were ignorant at the time that the defendant owned any land in sections 8 and 9 north of Tyronza River as it actual flowed. The defendant did not intend to sell, and the plaintiffs did not intend to buy, any land north of Tyronza River. Hence the land north of Tyronza River as described in the deed was the result of the mutual mistake of both, and, under the undisputed evidence, it was the duty of the chancery court to correct the mistake and reform the deed accordingly. It follows that the decision of the chancellor on this branch of the case was correct. On the part of the plaintiffs, it is earnestly insisted that the court erred in taking into consideration the inferior quality of the land north of Tyronza River, in allowing the abatement of the purchase price for the deficiency in the quantity of. land intended to be conveyed. On the other hand, it is the contention of counsel for the defendant that the court erred in allowing any abatement of the purchase price on account of the alleged deficiency in the quantity of land intended to be conveyed. The general rule on this question is clearly stated in Weart v. Rose, 16 N. J. Eq. 290. It is there said that 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 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 intermixture of fraud in the case. On the.other hand, 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. There is a further qualification of the general rule recognized in that case and by our own decisions to the effect that, where the difference between the actual and the estimated quantity of acres of land sold in gross is so great as to warrant the conclusion that the. parties .would not have contracted had the truth been known, in such case the party injured is entitled to relief in equity on the ground of gross mistake. As sustaining these principles of law, in addition to the case above cited, see Harrell v. Hill, 19 Ark. 103; Haynes v. Harper, 25 Ark. 541; Drake v. Eubanks, 61 Ark. 120; and Solmson v. Deese, 142 Ark. 189. Gross mistake is where the difference between the actual and the estimated quantity of land represented is so great as to .clearly warrant the conclusion that the parties would not have contracted, had they known the truth. Melick v. Dayton, 34 N. J. Eq. 245. As we have already seen, the undisputed evidence shows that neither the vendor nor the purchasers knew that the former owned any land north of. Tyronza River, and that the former intended to sell, and the latter to purchase, only the land in .sections 8 and 9 south of Tyronza River as it actually flowed. The agents of the respective parties were on the land when the contract was made, and the agent of the vendor pointed out to the agent of the purchasers Tyronza River as the north boundary line of the land. The agent of the vendor represented, and the agent of the purchasers believed,that the tract shown as the land of Bullard, south of Tyronza River, contained 244.63 acres. It turned out that there were only 171.57 acres south of Tyronza River owned by Bullard. This was the difference of 73.06 acres, which is material. Both parties in fixing the price believed that the tract of land south of the river contained 244.63 acres. The land north of the river was not considered at all. The plaintiffs were damaged in failing to get 244.63 acres south of the river, and the abatement ought to be in proportion to the price agreed to be given for the land as represented. This is shown to be $65.41 per acre. According to the rule laid down in the cases cited above, the plaintiffs are entitled to a reduction of 73.06 acres at the rate of $65.41 an acre, which amounts to $4,778.85. The land in sections 8 and 9 north of Tyronza River, which it turns out belongs to Bullard, was not considered by the parties in making the purchase of the land in question. Neither party believed that Bullard owned any land north of Tyronza River, and that fact did not enter into their minds at all in making the contract for the sale of the land, or in the execution of the deed in consummation thereof. Therefore, it did not make any difference whether or not the land owned by Bullard north of the Tyronza River is of inferior quality to that owned by him south of the river. Bullard only intended to sell, and the purchasers to buy, the land owned by him south of Tyronza River. Bullard’s agent sold the plaintiffs a tract of land which he pointed out and represented as lying south of Tyronza River and as containing 244.63 acres. The land turned out to contain only 171.57 acres, leaving a deficiency in quantity of 73.06 acres. This, as we have already seen, under the principles of equity entitles the plaintiffs to an abatement of the purchase price in proportion to the price agreed to be given for the land as represented. Again it is claimed that this abatement should not be allowed as to the 12.27 acres of land in the northeast-quarter of section 8 south of Tyronza River, which turns out to belong to the United States. The contention of the defendant in this respect is based upon the factthat an act of Congress was passed, when the mistake in the original survey was discovered, which gave to the landowners who had claimed the land la preferential right to purchase it at $1.25 per acre. The rights of the parties must be determined as they existed at the time the contract was entered into between them. The act of Congress was not passed until afterwards. The plaintiffs were not required to enter into negotiations with other parties or with the United States for the purchase of land in order to mitigate the damages which the defendants must pay them on account of his breach of the contract. The decree of the chancery court is therefore affirmed, in so far as it reforms the deed so as to vest the title to the land in sections 8 and 9 north of Tyronza River in the defendant Bullard. As to the abatement of the purchase price, the decree is reversed, and the cause is remanded with instructions to the chancery court to enter a decree in accordance with this opinion.