Darling v. Osborne

The opinion of the court was delivered by Dunton, J. We are not satisfied, from the evidence, that the Montpelier & Wells River Railroad Company had no title to lot No. 62 at the date of their conveyance to Osborne. Although Hooper, their grantor, had no other record title to said lot than a tax title [156] to an undivided portion thereof, which was defective, it does not appear from the evidence but that his possessory title to the whole of said lot was sufficient to hold it as against everybody else but the original proprietor and his heirs ; and this the said railroad company acquired by their deed from him. Although an effort has been made to find the heirs of the original proprietor and acquire his title, by certain third parties, to enable them to lay claim to said lot, it is not certain that they will succeed. As Hooper is solvent and able to respond to any judgment that may be recovered against him in a suit at law, upon the covenants in his deed to said railroad company, we see no ground for equitable defence upon this branch of the case; but in our opinion the defendants should be left to pursue such remedy, if any, as they may have at law. Whatever negotiations were had between the defendants Osborne and Woodbury upon the one part, and French, as agent of said railroad company, upon the other, as to the side track in question, we think were merged in the written agreement* of October 14, 1873, signed by Hall as president of said railroad company; and therefore all previous disputes in reference to building said side track were thereby compromised and settled, so that the defendants have no other rights in reference thereto than such as are given them by said agreement. And we are not satisfied from the evidence that the condition of said agreement as to the amount of lumber to be manufactured and transported annually over the railroad of said company, was complied with, so as to entitle the defendants Osborne and Woodbury to be repaid any portion of the expense of ironing and grading said side track, assuming that they have paid the whole of iti We find from the evidence that the note in question was overdue at the time of its transfer to the orator Darling, and, assuming that it is a negotiable promissory note, it is subject to all equities'and defences existing at the time of its transfer that it would be in the hands of the original payees.. The defendants claim that French, as the agent of said railroad company, overstated the quantity of land in two of the lots — Nos. [157] 78 and 76, at the time of their purchase by Osborne, and that he, Osborne, in making such purchase, relied upon the representations of French, who told him they were one:hundred-acre lots, but would probably overrun, as is usually the case with such wild lands. Said lots, in the deed from the railroad company to Osborne, are described by number and a reference to the deed from Hooper to the grantors ; then follows this clause : “ Said lots supposed to contain one hundred acres each, more or less.” While we fail to find any fraud upon the part of French, we do find that it was understood by him, that said lots were whole lots, and contained one hundred acres each, or more, and he so stated to Osborne; and that Osborne purchased them relying upon what French told him as to the quantity of land each contained. ' By the report of the master, to whom a reference was made to determine, among other things, the quantity of land in each of said lots, and how much less they were worth at the time of their purchase by Osborne than they would have been had they.contained one hundred acres each, it appears that lot No. 73 contains sixty acres and four rods, and No. 76, fifty-three acres ; and at the time of said purchase, the former was worth 1912.64, and the latter, 1842.05, less than they would have been had they each contained one hundred abres. We therefore think that there was a mutual mistake of the parties as to the size of these lots, and that the defendants are not remediless, for the reason that, in the description of the same in the deed, it is stated that they are “ supposed to contain one hundred acres each, more or less.” As is well said by Pennington, Chancellor, in Couse v. Boyles, 3 Green, Ch. 216, “ the plain and sensible rule, as it appears to me, is this ; when land is sold as containing so many acres, ‘ more or less,’ if the quantity, on an actual survey and estimation, either overrunning or falling short of the contents named, be small, no compensation should be recovered by either party. The words, ‘ more or less,’ must be intended to meet such a result. But if the variance is considerable, the party sustaining the loss should be allowed for it; and this rule should prevail when it arises from mistake only, without fraud or deception.” We think Osborne [158] mnst have been influenced, to a greater or less extent, by the supposed quantity of land in these lots in making a purchase of them ; and, although the misrepresentations of French complained of were innocently made by mistake, that the defendants are equitably entitled to have the amount said two lots were worth less than they would have been at the time of their purchase, had they contained one hundred acres each, deducted from the amount of said note at its date. See Wilcox v. The Iowa Wesleyan Uniiversty, 32 Iowa, 374; Blessing v. Beattie, 1 Rob. Va. 287; Nichols v. Cooper, 2 W. Va. 347; Twitchell v. Bridge, 42 Vt 74; Couse v. Boyles, supra. It is claimed by the defendants’ counsel that the new corporation formed by the bond-holders of the old Montpelier & Wells River Railroad Co. under the same name, ought to be made a party to the suit; but it appears from the evidence that such new corporation was not formed until after this suit was commenced. Assuming that it has such an interest in the subject-matter of this litigation as to make it a necessary party had this suit been commenced after its organization, it will be bound and concluded by the decree in this cause without being brought in as a party. It is a familiar principle of law that parties acquiring an interest in the subject-matter of a suit pendente lite, are bound and concluded by the judgment or decree in such suit; otherwise, litigation might be interminable. See Cook v. Mancius, 5 Johns. Ch. 89; The People's Bank v. Hamilton Manufacturing Co. 10 Paige, 481; Mitford Ch. Pl. 73. It appearing that Sortwell, at'the time of the commencement of this suit, was both an extensive holder of the bonds of said first corporation and trustee of the holders of said bonds, we cannot, therefore, see why he is not a proper party to represent the rest of the bond-holders in this suit, admitting that they are all interested in said note and mortgage to the extent claimed. If numerous, it would bo impracticable to bring them all into this suit as parties. The practice in such cases is stated by Pierpoint, J., in Stimson v. Lewis, 36 Vt. 94, as follows: “The practice is common in our courts, when the persons in interest are numerous, to allow parties plaintiff to bring a bill in behalf of themselves and [159] others interested without making such others parties, there being a sufficient number before the court to represent the rights of all. The rule seems to be the same, substantially, in regard to the defendants.” Also see Shaw v. Norfolk County Railroad Co. 5 Gray, 170, and Cheever and Hart v. The Rutland & Burlington Railroad Co. (an unreported Rutland County case in pamphlet, decided at General Term, 1869.) We find that said Montpelier & Wells River Railroad was completed, ready for business, in less than five years from the date of said note, and therefore the note, by its terms, bears annual interest from its date. As the defendants have prevailed only upon one ground of their defence, and have been defeated as to the other two, we do not think that either party should be allowed costs after the first term this cause was entered in the Court of Chancery. The decree of the Court of Chancery is reversed, and the cause remanded, with directions to that court to enter a decree of foreclosure for the orators for $245.31, (it being the amount of said note after deducting therefrom the sum that lots 73 and 76 were worth less than they would have been had they each contained one hundred acres,) and interest annually thereon from the date of said note, with such costs only as they would have been entitled to had a decree of foreclosure been entered at the first term the suit was entered in court, without hearing. Footnotes [*] This agreement was not furnished the Reporter.