Wilcoxon v. . Calloway

Rodman, J. On the 13th January, 1868, the defendant *465 Calvert agreed to convey to plaintiff a good title in fee to “ all that certain piece or parcel of land known as the Turkey Pen tracts, two separate parcels or tracts, fifty acres each, enteied, one by Neal and William Calvert, Sr., and the other by William Calvert and son Neal, these tracts lying and joining B. C. Calloway at this date,” on 1st April, 1868, provided that by that date the plaintiff should have paid Calvert $200, ■or its equivalent. It appears that at the execution of this contract the plaintiff paid the defendant Calvert $150 on the contract. The land was afterwards run out and found to contain but 66 acres. Afterwards Calvert sold the land to Calloway for value, but (as is not denied, and it is therefore assumed to be true) with notice of the previous contract with plaintiff. As Calloway bought with notice, he stands in the shoes of Calvert so far as respects his liablility to convey the land. We think the judgment of the Court below to that effect was right. Ward v. Ledbetter, 1 D. & B. Eq., 496. The next question then is, is the plaintiff entitled to compensation for the deficiency in the quantity, and by what rule is that compensation to be ascertained % The land is described in the contract as two tracts of fifty acres each, but run out only sixty-six acres in all. Both parties seem to have had equal opportunity of knowing the quantity of the land, and were equally ignorant of it. There are no allegations of fraud or wilful deception. It is a case of mutual mistake. But upon a contract for a hundred acres, even though there is no suggestion that the vendee, for any reason, desired exactly that quantity, or that quantity was of any value except as quantity, yet a deficiency of one-third must be held material, and would probably entitle the vendee to rescind the contract if he chose to do so, or at all events, to an abatement of the price. In Gentry v. Hamilton, 3 Ire. Eq. 376, there was a deficiency of 355 acres out of a tract described as containing “ 1,670 acres, more or less.” In Leigh *466 v. Crump, 1 Ire. Eq. 299, the land was described as containing 1,000 acres, more or less, and it contained in tact only 600. In both those cases the purchaser was held entitled to an abatement. See also Jacobs v. Locke, 2 Ire. Eq. 286, and Fry Spec. Perfor. 191, 348, S. 801, Hilliard Vend. 331, 273, 277, 328. In this case, the vendor having received payment oí three-íourths of the purchase money, and being insolvent, the purchaser is clearly entitled against him, and against a purchaser irom him, with notice to have a conveyance with an abatement oí the price. By what rule shall the compensation or abatement be ascertained ? It is not the general rule that the abatement shall be in the proportion oí the deficient quantity to the quantity represented. Such a rule would in many cases be plainly unjust.- As if the part which the vendor could convey comprised valuable buildings, or mines, or a waterpower, while the part which he could not convey was unimprovc-d or sterile. But this supposes some definite piece of land to which the vendor is unable to make title as was the case in Jacobs v. Locke ubi sup. Take the case of a contract to convey a definite tract represented as containing 100 acres which runs out 66 acres only, if there were buildings or other things oí value upon the tract, it would not be fair to calculate the value of the deficient acres by an average, obtained by dividing the price agreed to be paid, by the number of acres agreed to be conveyed, because the purchaser has got the lan! upon which were the things which gave it a peculiar value, and would not have got them over again had the quantity held out as represented. In such a case the only mode of estimating the abatement would be by a reference to inquire how much more was given for the land by reason of the supposed additional quantity. Hill v. Buckley, 17 Ves. 394. In this case, however, it does not appear that any part of the land has been improved, or that there is anything to give any one part of it extraordinary value over any other part, and *467 we do not see why it will not be lair and reasonable to estimate the value of the deficiency at the average price per acre. That was the course which seems to have been adopted in the Court below, and no especial exception has been taken to it here. In this opinion no allusion has been made to the evidence of a parol variation of the contract, because, if admissible,-it would not have varied the conclusion we have come to. Per Curiam. Judgment affirmed.