Coons v. North

Napton, Judge, delivered the opinion of the court. We were not without doubt whether this action against the cestui que trust could be sustained, under any view of the law concerning the warranty and the mistake alledged. If this sale had been made directly by the owner who, upon receiving the purchase money, paid it over to his creditor, it is clear that the purchaser would have no action against such creditor. The money could not have been followed in his hands. There would be no privity between them, and the purchaser must look to his vendor to redress any losses he may have sustained through mistake or fraud. The same rule would apply if the sale had been by the sheriff under execution and the money paid over to the creditor. The rule of caveat emptor would apply, and if warranties or misrepresentations or innocent mistakes occurred, giving grounds for action to the injured purchaser, his redress would be limited to the person making the warranty or occasioning the mistake. The creditor, not having interfered in any way, would not be liable to refund. Here the sale was by a trustee holding the legal title to the land, through the agency of the owner, and for the benefit of the creditor and the owner. Considering him as an agent for the, creditor, who is cestui que trust in the deed, as well as of the owner and debtor, we may in this way establish a privity between the parties. Considering that such a privity exists as would allow this action [78] in the event it could be maintained on other grounds, the question still remains whether this action for the surplus money received will lie. We do not consider the sale made in this caso as a sale by the acre. To give such a construction to sales of this nature, whether made by sheriffs or trustees or other agents, at public auction, merely because the bids are called for and received' by the acre, would be contrary to what we apprehend is the general understanding of the country. Many of our surveys here, made by the officers of the United States government, are inaccurate, and sections of land are frequently found to overrun the quantity of 640 acres, and as frequently perhaps to fall short of this quantity. The subdivisions are, of course, equally inaccurate. Sales, especially public sales, are usually made by reference to these known surveys and subdivisions of surveys, and the purchase money is calculated by the number of aeres ; but the vendor is selling the tract, and the purchaser expects to get the tract without regard to mistakes which may have occurred in the original surveys, whether favorable to one side or the other. The conduct of the parties in this case is sufficient to show that, although the bidding was regulated by the price per acre, yet it was understood that the tract, as a tract, was sold, without reference to any deficiency or excess which an accurate survey might show. No provision was made for a resurvey, nor was any such contemplated. (Smith v. Evans, 6 Bin. 102.) There was a mistake in this case common to all parties concerned in the sale, which certainly a court of equity would correct. The doctrine of the cases cited from the Virginia courts is reasonable in relation to the construction of the words “ more or less” in describing the number of acres in a tract of land. It is intended to cover small deficiencies, such as the well known inaccuracies of government surveys produce; but it does not and ought not to compel a purchaser to take a tract of 500 acres which he has bought and paid for as containing a thousand acres. But the equity in [79] such cases does not arise from the fact of sale by the acre, and the consequent responsibility of the vendor to see that every acre contracted for is to be found in the survey, and his right to a price exactly proportioned to the number of acres, but it proceeds solely upon the ground of mistake and not of contract; and the question arises, how is the mistake to be corrected ? Can a court of equity allow the purchaser to retain the land, and compel the vendor selling at public auction, and by an agent not perhaps of his own choosing and certainly not controlled in any way by his directions, to refund the surplus of the purchase money ? We doubt whether this would be equity in any case. We see plainly that in many cases it would not. Here the tract was sold as a tract of eighty acres, and brought some five or six hundred dollars. It turns out to be only twenty-three acres. This fact was unknown to the cestui que trust in the deed, the defendant in this action, as well as to the trustee- and the purchaser. We may assume that it was also unknown to all the bidders present. The tract was sold at about eight dollars per acre, and this made an aggregate, estimating it at eighty acres, sufficient to pay the debt for which it was sold. Whether "the creditor would have suffered a sale at eight dollars per acre, if the quantity of acres had been known, is a matter we can not know. Whether other bidders would have let the tract go off at this price, with this knowledge, can not be known. As the mistake was common both to purchaser and owner, we do not see any right which one has to insist on the contract being executed pro tanto. The purchaser would clearly have a right to rescind altogether; but this action is not brought upon this basis. The plaintiff proposes to retain the land at a price bid for a tract of eighty acres, when it has turned out to be less than one-third of that size. We see no equity in such a claim. To rescind the contract entirely could injure neither party, but places them both where they stood, with a discovery of the mistake. The land can be put up again, and if it is worth no more than eight dollars per acre as a tract of twenty-three acres he is not injured, and the [80] defendant and others will have an opportunity of bidding with a knowledge of the fact now disclosed, which they did not have at the former sale, and which we would utterly deprive them of if this action in its present form be sustained. The plaintiff may if he sees fit amend, and with this view the judgment is reversed and the cause remanded. Judge Scott concurring; Judge Richardson not sitting.