Capshaw v. Fennell

DARGAN, J. The contract in this case, was for the sale of a tract of land, containing 300 acres, more or less. The vendor represented to the vendee, that it contained 300 acres, when in fact it contained only 282 acres, but the sale was not expressly by the acre, but was for a gross sum, for the tract. The contract of sale was entered into in December, 1840, and a deed was made to the complainant by Simmons, in whom was the title, in March, 1842. The vendor never had any written title, and from the answer, and all the circumstances brought to the notice of the court by the record, we believe that the representation was innocently made. The defendant purchased the tract, and paid for it, supposing it contained 300 acres, and there is no evidence whatever to show, that he discovered the mistake, at any time previous to the final consummation of the contract. Tne law is, that if the vendor makes false representations as to the quantity of land about to be sold, knowing them to be false, the vendee may have compensation for the deficiency. [2 H. & Mun. 160; Sugden on Vend. 391; Minge v. Smith, 1 Ala. Rep. 415.] But here the representation was innocently made, under the belief that the tract of land contained 300 acres. This was a mere mistake, not a fraud. When there has been a mutual mistake as to the quantity of land sold, it is difficult to lay down any precise rule, that will always guide us in determining when compensation will, and when it will not be allowed ; but inasmuch as the complainant in this case, received the deed in March, 1842, and on the face of the deed, notice of the deficiency is fully given, a year afterwards he renewed his note for the small balance of the purchase money, without objection or claim for .compensation, we believe, that if the true quantity had been known at the time of entering into the contract, to both par-lies, the terms of the contract would not have been altered 783 We arrive at this conclusion of fact, from the nature of the contract itself; from the conduct of the complainant in receiving the deed, which gives notice of the deficiency on its face, without objection; then a year after, as stated, renewing his note for the balance of the purchase money, then saying nothing of the deficiency. Also, the exhibits, being the letters of the defendant, show, that the locality was a leading inducement to the contract; and we cannot come to the conclusion that the terms of the contract would have been altered, had the true quantity been known. In this case, then, we cannot conceive how compensation can be allowed. The decree therefore, dismissing the bill, was correct, and is hereby affirmed.