Maxwell v. Willingham

Simmons, C. J. Willingham, as executor of Willis Willing-ham, sold to Maxwell a tract of land, and Maxwell entered into [59] the following agreement: “I have this day bought from W. M. Willingham, executor of Willis Willingham, all that tract of land in said county known as the Peterman tract, containing about one hundred and fifty acres, for five dollars per acre. The survey to be made by said executor and the land to be paid for according to the amount shown thereby. The sum of five hundred dollars to be paid in cash when the survey is made, and the deed tendered; with interest on deferred payments at 8 per cent, per annum. . ■. Final payment to be made not later than January 5, 1896. ” In accordance with this contract, Willingham had the land surveyed, and it was found to contain 218.20 acres instead of 150. Willingham tendered Maxwell the deed to the 218.20 acres, and Maxwell refused to accept it; whereupon Willingham brought his action upon the contract to recover the purchase-money of the land. Maxwell filed- pleas which will be found in the official report. Upon demurrer these pleas were stricken, and the court directed a verdict for the plaintiff for the value of the whole tract of land as shown by the survey. We think the court was right in striking the pleas and in construing the contract. Maxwell agreed to purchase about 150 acres of land- at five dollars an acre, and it can be plainly inferred from the phraseology of the contract that the parties were not certain as to the number of acres, for it was provided that the vendor should sell and the vendee should buy the whole tract, whatever the number of acres it might contain as shown by the survey provided for in the contract. The plea which sets, up that the purchaser intended to buy only 150 acres at five dollars per acre was, therefore, properly stricken. The other plea, setting up as a defense that the plaintiff represented that the tract contained not more than 150 acres and that he sold the same with the assurance that when surveyed it would be found to contain not more than 150 acres, was also properly stricken. - The contract was plain and unambiguous, and the defendant can not engraft on it, by parol, stipulations which would vary its terms. The defendant pleaded that the-executor had no authority under the will to sell the land at private sale, and could therefore make him no valid title. This, plea was properly stricken; [60] for the will gives the executor full and specific authority to sell the land privately or publicly, with or without an order of court, just as he may think proper and best to accomplish the purposes thereinbefore declared, and to execute deeds of conveyance and make titles to the land so sold. The court did not err in directing a verdict for the plaintiff. Judgment affirmed. All the Justices concurring.