Failing v. Osborne

Upton, J. The defense relied upon in this case, is substantially, that the plaintiffs being interested in procuring a responsible bidder for the premises levied upon, falsely represented the title to bo good, when they knew it to be bad as to part of the land, and that they represented the parcels constituting the tract, as containing 1,200 acres, when, in fact, they contained but 1,040 acres. The written agreement offered in evidence by the defendant, as made at the time of, and as part of the transaction, contains a recital that “ a rumor has come into circulation, that the legality of said sheriff’s sale may be contested.” The defendant was put upon inquiry whether the sheriff had a “legal right to sell said premises.” Under this state of facts, the parties entered into an express agreement that, upon certain contingencies, the plaintiffs would “refund the purchase money,” then about to be paid by the defendant. If the property did not belong to Brumley, the creditors had no legal right to sell. A rumor had arisen, and come to the knowledge of the contracting parties, that that question might be contested, and they stipulated that “ if it should be adjudged that said creditors had no legal right to sell, and if said Osborne, by reason thereof, be legally compelled to give up possession of said premises,” they would refund, with interest. It seems to have been distinctly settled what risk each party would take [502] The defendant Osborne, assumed the responsibility in case of a contest to defend until judgment should be had, and until he should -be legally compelled to surrender possession. If he could defend successfully, he could claim nothing from the plaintiffs. If unsuccessful, he had recourse upon them for the purchase money and interest, but not for the costs of the action. The parties having entered into an express agreement to be liable to a certain extent,' or upon a certain contingency, no other agreement in regard to the same matter, can be implied, and the particulars being expressed, excludes all ideas of liability upon the contract to a greater extent, or upon a different contingency. The recitals show that the risk of title was a subject under consideration, and it was settled by express agreement, what, and how much, liability each party undertook to assume.” The liability assumed by the plaintiffs, was similar to that assumed by a grantor, who enters into a covenant of general warranty, in those states where the purchase money and interest is held to be the'measure of damages. The legal effect given by construction, to the formal words of general warranty in those states, is precisely what the parties have expressed in words in this instrument. The evidence does not tend to show that the plaintiffs resorted to artifice or intentional deception, and it is shown that the plaintiffs had peculiar means of knowing the condition of the title, not equally open to the defendant. It cannot reasonably be contended, that, under the terms of this instrument, the defendant had any greater rights than those of a grantor under a deed of general warranty. He claims to recover $2,500 damages, and to have the damages set off to that extent, against the promissory note. The time has not arrived, when he can claim damages on account of failure of title, because by the terms of the agreement, no such right accrues to him, until he is turned out of possession. There must be an ouster, either actual, by being put out, or constructive, by surrendering to the paramount title, before the purchase money can be claimed. (Abbott v. Allen, 2 John. Ch. 519.) The point in regard to the alleged [503] mistake in tbe number of acres, is settled by authority too firmly, to be open to argument at tbe present day. It is not alleged that any deception was practiced in regard to tbe quantity, but simply that the tract was represented as 1,200 acres, when in fact, it contained but 1,040 acres, that is, the tract contained but thirteen fifteenths of wbat tbe parties supposed at tbe time of the contract. £ ‘The cases in which courts of equity interfere to give relief, when the land exceeds or falls short of that which is specified in the deed or contract of sale, are those in which the sale of the land has been made by tbe acre or foot, or where there has been fraud or wilful misrepresentation, on the part of tbe party against whom relief is sought, to induce the other party to believe the quantity of land conveyed, was different from what it really was.” (Morris Canal Co. v. Emmett, 9 Paige, 168.) In this case, several different donation claims make up the one tract sold, and there is nothing in the allegations or proof, to show that any of these were sold by tbe acre. Judgment should be affirmed.