Montgomery v. Robertson

Atkinson, J. 1. Where land was sold and conveyed by the tract, the number of acres being mentioned in the deed only as part of the description and not by way of covenant, and it being recited that the land contained so many acres, “more or less,” in the absence of actual fraud no recovery can be had by the purchaser against the vendor on account of a deficiency in the quantity of land contained in the tract described. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41) ; Emlen v. Roper, 133 Ga. 726 (66 S. E. 934). (a) If the action in the present ease be treated as one for a deficiency in the quantity of land contained in a tract conveyed and described as containing a certain number of acres, “more or less,” there was no sufficient allegation of fraud. 2. In so far as the petition sought to recover on the ground that the vendor had pointed out to the vendee a certain line as being the correct boundary line between the tract conveyed and an adjoining tract, and that this was not the true dividing line, it was insufficient. It failed to allege that the line thus pointed out was not in fact the correct line between the two tracts of land, or what was the true line, merely alleging that he had been misled, and that the processioners, appointed in part on his application, had marked a different line, and that the vendor had notice of the processioning, it not appearing that he was an adjoining landowner, or that the line so marked lay between the land so conveyed and any land owned by him. Civil Code, § 3245. If the allegations contained in the record before this court are correctly set forth, it would seem that the line alleged to have been pointed out, if correct, would have given plaintiff less land than ho actually obtained. He purchased the northeast half of land lot number 268. The boundary on the southern and western sides was, therefore, the remainder of that land lot. This left only two other sides, to wit, ‘ the north and east sides of the tract conveyed. Apparently the line which it is claimed encroached upon the tract sold was on the east side. The allegation is that the vendor informed the vendee that the true line between these two lots lay about 16% chains “west” of the line marked by the processioners. If this be correct, the line pointed out would leave less in the tract conveyed than the line marked by the processioners. If the adjacent lot lay north of that conveyed, then the allegation that the line pointed out was “west” of the processioners’ line would be meaningless. Judgment reversed. All the Justices concur. Denny & Harris, for plaintiffs in error. John W. & G. B. Maddox, contra.