Paine v. Upton

Smith, J.: The fact of a mutual mistake as to the quantity of the land sold was found by the trial court upon proof establishing it beyond question. The land was believed by all parties to contain two hundred and twenty acres and upward, but in fact it contained only two hundred and six acres and a fraction. The court also found that such belief was the basis of the negotiations and agreement of the parties. The case, therefore, is not one of a sale in gross, so that the contract is satisfied by a conveyance of the land within the boundaries stated, whether it contains more or less than the specified number of acres. And it is apparent, from the course of the negotiations between the parties, and the efforts of each to make the price a few hundred dollars more favorable to himself, that if the vendee had been aware of the actual number of acres he would not have made the purchase at the price agreed on. The case is, therefore, one for granting relief, unless, as is contended by the respondent’s counsel, [311] the appellant is concluded by the fact that the agreement has been consummated by a conveyance. The mistake was not discovered until several months after the deed was delivered and the purchaser had gone into possession, and consequently, the mistake entered into and affected the deed as well as the executory contract. We are not aware of an authority in this State, holding, that in such a case, a court of equity will not give relief. • The cases relied upon by the respondents’ counsel, and cited by the learned judge at Special Term, at the most, contain mere dicta to that effect, they are not adjudications in point. They. are Veeder v. Fonda (3 Paige, 94); Marvin v. Bennett (26 Wend., 169); and Belknap v. Sealey (14 N. Y., 144). The comments of Judge Comstock in the case last cited upon the first two cases named, show wherein they differ materially from the present case. In Belknap v. Sealey, the court rescinded an ex-ecutory contract for the purchase of land, on the application of the vendee, on the ground of mistake in the quantity. The fact that a deed had not been executed was adverted to, but there is no intimation in the case that if there had been a deed, the relief would have been denied. Considering the question as an open one, what sound reason can be given for holding that the vendee is foreclosed by the acceptance of a deed from obtaining the relief sought in this action ? He does not ask that the contract be rescinded, but he seeks to recover back so much of the price per acre as was computed and paid by mistake. The reason suggested by Chancellor Walworth in Veeder v. Fonda, to wit, the necessity of quieting litigation, would apply as well to the case of a-mistake in a deed in any other-material respect, as to a mistake in respect to quantity. In view of the rule that the alleged mistake must be established by clear and irrefragible proof, the necessity of such a holding is not apparent. If, intermediate the contract and the deed, circumstances had occurred calculated to put the vendee on his guard; or if, as in Marwin v. Bennett, the vendor had distinctly refused to insert the quantity in the deed after negotiation on that subject; or if it had been understood that the risk as to the quantity of- land constituted an element of the conveyance, the reason for holding the vendee concluded by the deed would be obvious and controlling. But [312] where the deed and the agreement are executed under the same mutual mistake, it is not easy to understand how the deed stands in the way of correcting the mistake. The case of Wilson v. Randall (7 Hun, 15; affirmed, 67 N. Y., 338), seems to be an authority for holding that a court of equity will correct a mistake in a deed as to quantity. See also Graves v. Brinkerhoff (6 T. & C., 630). The circumstance that the land is described by metes and bounds and the terms “ more or less ” are added after a statement of the quantity, does not affect the right to relief, if the plaintiff is otherwise entitled to it. (Belknap v. Sealey, sup.) In Belknap v. Sealey, stress was laid upon the fact that the mistake on the part of the purchaser was caused by the misrepresentation of the vendor, although not fraudulently made. The same fact exists here, the court having found that at the outset of the negotiations the defendants stated, in reply to the plaintiff’s inquiry, that the farm contained two hundred and twenty acres or upward. The statement was made in the belief that it was true, but it was a misrepresentation. The judgment should be reversed and a new trial ordered, costs to abide event. Talcott, P. J., and Hardin, J., concurred. So ordered.