Britt v. Marks

Strahan, C. J. 1. It is nowhere alleged in the complaint that at the time Marks made the representations complained of he knew that the farm did not contain 169.09 acres, or that they were made with the intent to defraud the plaintiff. By omitting these allegations, the plaintiff fails to make a case in his complaint which would entitle him to any relief on the ground of fraud. (Rolfes v. Russell, 5 Or. 400; Dunning v. Cresson, 6 Or. 241.) 2. But the plaintiff’s counsel argued that mistake is alleged in the complaint and that of itself is sufficient to entitle the plaintiff to relief. Waiving all questions as to the insufficiency of the pleading on this point, we will proceed to examine the facts briefly. The plaintiff holds under a deed from Marks and Wollenberg and wife, dated the 9th of November, 1883. The consideration expressed in the deed is seventeen hundred dollars. The premises conveyed are described as follows: “The east half of that certain donation land claim of John W. Burch, which entire donation claim is described as commencing at a point 6.14 chains west and 22.30 chains south from the corner of sections 24 and 25 in T. 30 S., R. 6 west (claim No. 61); thence east 23 chains; thence north 58.50 chains; thence west 74 chains; thence south 36.20 chains; thence east 50.80 chains; thence south 22.30 chains, to the place of beginning, containing in township 30 S., R. 6 west, 221.18 acres, and in township 30 S., R. 5 west, 97 acres. Also the north part of the donation land claim of A. J. Tiller, commencing 20.63 chains south and 7.16 east from the northwest corner of section 30 in township 30 S., R. 5 west; thence running east 29.50 chains; thence south 20.34 chains; thence west 29.50 chains; thence north 24.30 chains, to the place of beginning, [228] containing 60 acres, more or ] ess — reserving and excepting from the above-described premises and not herein conveyed that certain fifty acres heretofore sold by J. R. Jennings and wife to Ezekiel Lyttle, which said deed therefor is recorded in volume No. 2 of deeds, page 599, in the clerk’s office of Douglas county, Oregon, and which land so excepted from this conveyance comprises all of the land of the said donation land claim of J. W. Burch lying and being on the north side of Cow creek, which said deed is dated May 23, 1863.” This deed contained general covenants of warranty, but does not specify the amount of land conveyed. The deed of Jennings and wife referred to conveys to Lyttle “all of the land belonging to the donation land claim of John Wesley Burch lying on the north side of Cow creek, containing fifty acres, more or less.” Marks and Wollenburg, by the reference which they make to this last-named deed in their deed to the plaintiff, have made its descriptive words a part of their deed as completely as if they were written out at large in such deed; so that the plaintiff was bound to know that all of that part of the Burch claim north of Cow creek was conveyed away. The descriptive words in no manner fix the amount. Whatever may have been the plaintiff’s impression as to the amount of land contained in the farm purchased from Marks and Wollenburg, his own evidence shows that it was a purchase of the farm in gross and not by the acre. “ Question — What did you agree to pay him for this farm ? Answer — I went and looked at the farm and wrote him that I would give him $1,700 for the farm.” These facts clearly bring this case within the principle that where a tract of land is sold for a sum in gross and not by the acre; and the quantity stated is qualified by the words “more or less,” there is no warranty of quantity and there can be no abatement if the number of acres is less than stated, nor compensation allowed for any excess. (2 Sutherland on Damages, 250, and authorities cited in note 2; Noble v. Googins, 99 Mass. 231; Morris Canal Co. v. Emmett, 9 Paige, 167, 37 Am. Dec. 388; [229] Board of Com. v. Younger, 29 Cal. 172; Cram v. Union Bank, 42 Barb. 426; 2 Warvell on Vendors, 925.) These authorities effectually dispose of the appellants contention and require the affirmance of the decree appealed from, and it is so ordered. Bean, J., did. not sit here, having presided in the court below.