Veeder v. Fonda

The Chancellor. As property to a vast extent is sold under the decrees and orders of this court, much of which property belongs to infants, and others who are not able to protect their own rights, it has always been an important object with the court to encourage a fair competition at masters’ sales.. For this purpose it is necessary that purchasers at suck sales should understand that no deception whatever will be permitted to be practiced upon them. That in a contract between them and the court, they will not be compelled to carry that contract into effect under circumstances where it would not be perfectly just and conscientious in an individual to insist upon the performance of the contract against the purchaser, if the sale had been made by such individual or his agent. It is, therefore, a principle of the court that the master who sells the property shall not, in the description of the same, add any particular which may unduly enhance the value of the property, or mislead the pur [98] chaser. (2 Atkinson on Conv. 71.) In this case the description, by which the property was advertised and sold, was false or mistaken in two particulars, although it corresponded. with the description in the deed of trust and in the complainants’ bilLjij'.'The first particular, which described it as “ the former homestead of Jellis Fonda,” would not be very likely to mislead, because the north line of the canal was described as the boundary. This was such a notorious designation of the extent of the lot in that direction, that a bidder could hardly be under the mistake of supposing it included that part of the homestead which extended south of the canal. The land ¡actually sold, however, was described as “ containing about 20 acres, be the same more or less.” This was, probably, ! about the quantity contained in the original homestead. But • the land actually sold has, upon measurement, been found to ¡ contain less than 13 acres. There is nothing in the particular situation of the land to induce a belief that the number of acres contained in the tract would not necessarily form a very important circumstance in the estimate of the value of the property. And the purchaser swears he had no knowledge of the quantity, except from what was contained in the notice of sale, and that he bid with reference to the supposed quantity as there described. Had it been a mill site, or other property of that description, in which the particular spot, and not the supposed quantity of the land formed the principal ground of value, the case would have been materially altered. There appears to have been a considerable difference of opinion among judges in the different states upon the question whether a court of equity ought to relieve against a mistake as to the quantity of land, where it was afterwards found to be ‘ much less or much greater than the quantity mentioned in the deed or contract between the parties. (See 1 Peters’ C. C. R. 58; 4 Bibb's R. 215, and 1 Ves. Beam. 375, note 1, where most of the American cases are collected.) It seems now, however, to be generally understood that where the contract has been consummated, without any fraud, misrepresentation, or concealment as to the real quantity, the courts will not inquire whether there has been an actual mistake as to the supposed quantity contained within certain specified boundaries. But this result has been produced more from the necessity of qui [99] eting interminable litigation, than from the real equity of the principle established by the decisions. And wherever there-, $rhos been either fraud or concealment, or any thing beyond a mere mistake, on both sides, as to the quantity, a court of equi- ¡ : ty ought not to enforce the contract against the party who \ ’--has been deceived. In this case the master undoubtedly supposed the description in the deed to the trustees, describing the several lots, together, as containing about 20 acres, to Jbe correct, or nearly so, as to quantity. But it appears from the affidavits produced that one of the complainants, who was a trustee for the persons interested in the fund to be raised, was present at the sale and suffered the property to be put up as containing about 20 acres, although be was then aware of the fact that it contained but 13 acres, or about that quantity. He also interfered actively at the sale, by urging the purchaser and others to bid, and without disclosing the fact,that the real quantity of land was less than two thirds of what was represented as being the probable contents of the premises. He had also previously informed another party to the suit, who was interested in the fund to be raised under the decree, that the land fell short of the quantity described in the notice. As the statement of the supposed contents of the lots was calculated to deceive the bidders, as to the real value of the property, it was the duty of these parties to the sale to disclose the fact to the master and to the bidders, so that the competition might be fair and equal, and that they might not be misled. I cannot sanction the suppression of such a material fact by the trustee who represented the parties interested in the sale ; and the purchaser having been actually deceived as to the quantity, he must, be discharged from the purchase. A man who sells land as-containing a certain quantity, more or less, when he knows, from an inspection of the title deeds in his possession, or otherwise, that it contains a much less quantity, in equity is bound to make good the difference to the purchaser. (Nelson v. Matthews, 2 Hen. & Mumf. 164. Duvals v. Ross, 2 Mumf. R. 290. Pringle v. Samuel, 1 Litt. R. 44.) Under the circumstances of this case, as Glute was endeavoring to make the property produce the highest price for the [100] benefit of his cestui que trusts, I do not feel disposed to charge the costs of this application on him personally. The petition must however be dismissed, with costs, to be paid out of the fund raised by the sale under the decree ; and this particular piece of property must be re-sold. Such re-sale, however, may be made upon a notice of two weeks.