Henofer v. Realty Loan & Guaranty Co.

OiARic, O. J. The judgment of tbe court that tbe plaintiff recover for tbe entire shortage of 714 13-16 acres at tbe purchase price of $2.50 per acre with interest is affirmed. Tbe defendant does not contest judgment for tbe 192 7-16 acres conveyed by tbe deed, as to which there was •a breach of warranty of title in tbe deed. "Where land is bought by tbe acre, or there is a collateral agreement (which may be verbal) that tbe deficiency, if any, shall be made good, tbe Court will uphold tbe demand for a rebate, or for a return of tbe amount overpaid. McGee v. Craven, 106 N. C., 355; Sherrill v. Hagan, 92 N. C., 345; Currie v. Hawkins, 118 N. C., 593, cited and approved; Brown v. Hobbs, 147 N. C., at p. 77. It .is true that where tbe contract, or tbe deed, is for a specified tract •of land, on the mere recital of tbe number of acres where there is no ■warranty in the deed as to tbe acreage, tbe vendor cannot recover for any shortage in tbe acreage, in tbe absence of allegation and proof of fraud and misrepresentation in tbe acreage, unless there is a failure of title for part of tbe land conveyed, in which case be recovers damages upon the warranty of title. In Galloway v. Goolsby, 176 N. C., 638, it is said to be settled in this 'State that “where a definite tract of land is sold, or contracted to be sold, in tbe absence of fraud and false representation, a party purchases tbe tract agreed upon, and in the absence of guarantee as to quantity, is •entitled to no abatement if there is a shortage, nor is tbe vendor entitled to an addition to tbe price if there is an excess.” That case cites to tbe •same effect Turner v. Vann (Allen, J.), 171 N. C., 129; Bethell v. McKinney, 164 N. C., 78; Stern v. Benbow, 151 N. C., 462, and Smathers v. Gilmer, 126 N. C., 757. It is immaterial bow much of tbe shortage was caused by tbe contraction or alteration of tbe boundaries in the deed from those on tbe *586 map, or bow far it was caused by a failure of title to part of the acreage-within the boundaries laid down in the deed. This case rests upon the-breach of contract, and bond for title in the failure to convey by a good title the number of acres that the defendant sold, and the plaintiff paid for, at $2.50 per acre. It turned out that the land conveyed by a good’ title lacks 714 13-16 acres of being 2,611. It is exactly the case as if the-defendant had sold the plaintiff 2,611 bushels of wheat, describing it as: being contained in a certain barn, at the price named. If, on delivery of the wheat, it proved to be 522 3-8 bushels short, and of that actually delivered the vendor’s title proved defective as to 192 7-16 bushels, the-plaintiff would b'e entitled to recover for the whole deficiency — 714 13-16: bushels — at the price paid, as for money had and received. This is not solely on the ground of warranty of title, but because the plaintiff paid for a greater number of bushels than he actually received. It is true the prayer for relief in the original complaint is for breach of warranty of title and seizin, and for failure of title and deficiency in the acreage of land purporting to be conveyed by said deed. But the plaintiff is entitled to recover any relief to which the facts alleged in the complaint and the proof entitle him to receive. The facts alleged and proven, and not the prayer for relief, controls the judgment. Rev., 467 (3); Reade v. Street, 122 N. C., 302, and cases cited thereto in the Anno Ed.; Johnson v. Loftin, 111 N. C., 323, and cases there cited. In the course of the trial the plaintiff obtained leave to amend his complaint by averring that -he was a nonresident and not acquainted with the lines and boundaries of the land described in the map, which he understood he was buying, and that he bought and paid for 2,611 acres, because he had no knowledge, or opportunity to know, of the deficiency. The defendant contends that this amendment constituted a new cause of action, and was barred by the statute of limitations, because it was made more than three years after the alleged discovery of the mistake. This is a misconception of the cause of action, which is not an action to correct a mutual mistake in the deed, nor for a decree of specific performance to convey land omitted therefrom; but it is an action to recover for breach of the contract and bond for title the amount paid for the shortage in acres. The amendment is simply an amplification of the complaint to specify more particularly the cause of action, which was to recover the price paid for the number of acres short of 2,611, the land having been bought by the acre. The mistake as to the acreage was discovered in 1908, and this action to recover the price paid for said shortage was brought in 1910, and is therefore not barred by the statute of limitations. Rev., 395 (6). No error.