Cox v. Fisher

Smith, J. On September 22, 1917, Fisher and Equinn entered into a written contract, whereby Fisher leased to Equinn a certain farm for an annual rental of eight thousand dollars for a period of three years, dependent, in a measure, on the price of middling cotton at Memphis, Tennessee. The leased lands were described as follows: “All of the cleared land ownéd by party of the first part on the following sections, towit: Sections 29, 32 and 33, all in township 13 north, range 12 east, approximately 650 acres of cleared land.” Thereafter Equinn assigned the lease to Cox and Turnage. After taking possession of the land, Cox and Turnage caused it to be surveyed, and the survey disclosed there were only 578.26 acres of cleared land. Cox and Turnage then sued Equinn as immediate lessor and Fisher as remote lessor for misrepresenting the quantity of land embraced in the lease contract. It is not claimed that either Fisher or Equinn made any oral representation as to the quantity of land in cultivation. Upon the contrary, the undisputed testimony shows that during the negotiations leading up to the assignment of the lease Equinn was asked to guarantee the acreage, and, if he would guarantee the acreage, and answered that he would not guarantee anything; and it is not contended that he made any representation in regard to the acreage. There is no circumstance in the case to make an issue of fraud or deception. The cause of action is based solely on the recital in the lease that there were approximately 650 acres of cleared land, when in truth and in fact there were only 578.26. A verdict was directed for the defendants, and the plaintiffs have appealed. The action of the court is defended upon several grounds: (a) that the words in the contract do not constitute a covenant; (b) that, if there was a covenant, it was not one running with the land; (c) that in the assignment Equinn quit-claimed to.the plaintiffs only “all his right, title or interest” under his contract with Fisher; and (d) that there was no fraud or misrepresentation, as Equinn made no representation and declined to give any guaranty. In the early case of Harold v. Hill, 19 Ark. 103, this court said that the words, “more or less,” when employed in a deed conveying lands, are descriptive of the premises to be conveyed, rather than a covenant as to quantity; yet, if there was misrepresentation, or fraud, or deceit, as to the acreage to be conveyed, their employment would not prevent courts from granting relief, if the difference in acreage was so considerable as to amount to gross mistake. The words, “more or less,” or the word, “approximately,” employed in the instant case, or other words of similar import, imply that the acreage has been estimated and are merely descriptive of the property conveyed, and no covenant as to quantity exists because of their use, but their use will not prevent courts from granting relief, if the difference in acreage is so great as to amount to gross mistake, where the contract of conveyance was procured by misrépresentation, fraud or deceit. In the case of Solmson v. Deese, 142 Ark. 189, the grantor did not know that the representation as to acreage was false. Yet we said it was not essential that that fact be shown, as the difference between the acreage stated in the deed and the actual acreage was so great as to constitute gross mistake; but the grantor there had in fact made representations as to acreage. Counsel for appellants cite the cases of Harold v. Hill, supra; Drake v. Eubanks, 61 Ark. 120; Pollock v. Steinke, 100 Ark. 228; Brown v. Lemay, 101 Ark. 95, as authority for an action for false representation, even though words of approximation or estimate were employed in the deed. To these might be added the cases of Joseph v. Baker, 95 Ark. 150; Solmson v. Deese, supra; Neely v. Rembert, 71 Ark. 91; Carroll v. Jacks, 43 Ark. 462; Haynes v. Harper, 25 Ark. 541; and perhaps others. But in all those cases there was the contention that a representation in regard to acreage had been made which proved to be false. Here there was, not only no representation, but an express refusal to make representation. The lease contract must, therefore, be construed as one not by the acre, but in gross, in which the assignees, or sub-tenants, took only the actual acreage, whether much or little, without recourse on either the landlord or the immediate tenant — their assignor. Brown v. Lemay, supra; Ryan v. Batchelor, 95 Ark. 375. As what we have just said disposes of the case, it is unnecessary to consider the other propositions upon which counsel for appellees seek to uphold the judgment. Judgment affirmed.