Frank & Bro. v. Coltraine

Chalmers, J., delivered the opinion of the court. Mrs. Coltraine was garnished by Frank & Bro. as the debtor of one Richardson. By her witness, who was uncontradicted, she proved that she bought a tract of land by the acre from said Richardson, she to pay ten dollars per acre; that she had paid more than she had agreed to pay because of a deficiency in the land as represented, though there was still an outstanding note held by Richardson. The trade wras represented by her notes on one side and the title bond on the other, in which latter the land was bargained by the acre and not by land-office numbers, though she afterward accepted and put upon record a deed in which the land was described not by acres, but by numbers. It is insisted that she is bound by the deed and not by the title bond, that the former calls for certain land by numbers, without anything being said about the quantity or the price per acre, and hence she is bound to pay the price named, though the quantity was deficient, and for this the case of Kerr v. Kuykendall, 44 Miss. 137, is relied on. In that case it is admitted that a different result would have been reached if it could have been shown that the land had been sold by the acre. In the case at bar the sole evidence is of a sale by the acre. The sale by title bond, and not by the deed, controls. The [611] first governs and fixed the rights of the parties. The reception and recording of the latter, which did not follow the bond for title, is explained. The evidence being uncontradicted, the court below properly held that nothing was due on the notes. Judgment affirmed.