Sullivan v. Ferguson

Holmes, Judge, delivered the opinion of the court. The contract between the plaintiff and Andrew Dickson for the sale of the land to him, and the deed that was made to him as well as the subsequent conveyances, evidently contemplated that the tract of land sold contained about the quantity of one hundred arpents; that there were tenants in common who might be entitled to undivided shares with the plaintiff in the land; and that Dickson, the purchaser,should proceed to have a partition made by suit for the purpose of settling the respective rights of the parties in the premises and ascertaining her definite share ; and that the title was fully conveyed to him by deed with a view to enable him by means of a partition sale to pass the whole title to the property to the purchaser at such sale, in case the, sale of the land should become necessary. It was expressly stipulated in the contract of sale that if the laud should be actually divided [89] and the shares set off by metes and bounds, the quantity so set off to her vendee as his share should govern in settling the amount as paid to her at the rate of twenty-three dollars per acre. The partition that was made ascertained his share to be some sixty-three and /¡,¶ arpents. It was thus contemplated that her quantity might be less than the supposed content of the whole tract. It was not stipulated nor contemplated in the contract that a survey should be made for the purpose of ascertaining the exact number of acres contained in the whole tract sold, with reference to the amount of purchase money that was to be paid her. At the same time the plaintiff takes the written guaranty of a third responsible party for the faithful fulfilment of the contract and engagement of the vendee with her. The consideration expressed in the deed is large enough to cover the whole amount that would be due the vendor on the basis of her share being nearly equal to the whole tract; and it appears that she has been actually paid a larger amount than would be due to her on this basis. But it appears by accurate survey, subsequently made, that the tract really contained 149 acres. The case comes within the principle, which must be considered as settled by this court, that where land is sold at a given price per acre for the aggregate quantity contained in the tract, specified at a certain number of acres “more or less,” and no provision is made for a survey to ascertain the precise quantity for the purpose of fixing the amount to be paid, and both parties contemplate the aggregate limit named at which one is willing to sell and the other to buy, the price and the number of acres mentioned are to be taken as showing the amount of money to be paid, and the words “more or less” are not to unsettle this amount, and to leave the matter open to surveys, but are to be understood as indicating the agreement of each party to risk a variation in the quantity assumed—Boxley v. Stevens, 31 Mo. 197. The variation here is very great, and we might have some difficulty in applying this rule to a case of this kind if the [90] determination of the case depended upon this alone, though we are unable to find any other ground of distinction. But it seems to be settled that where the land is conveyed by deed and with'a view to an absolute sale of the property by the vendee to other persons, and to enable him to make a full title to the purchasers,.and the vendor takes any other security for the purchase money, though only the personal security of a responsible person, the vendor’s lien is to be considered as waived by the agreement and consent of the party. The security here guaranties the performance of the contract. It is laid down as the English rule that if a security be taken of a character aud value which show that credit was exclusively given to that security, that fact is held to be entitled to much weight, though not conclusive in itself, and it still remains a question of intention to be collected from the circumstances which have taken place—Adams’ Eq. 129. In the case of Brown v. Gilman, 4 Wheat. 290, where the circumstances were in many respects similar to this case, it was decided that an endorsed note was a collateral security, and discharged the lien of the vendor on the land itself for the purchase money. The same doctrine has been recognized by this court—Delassus v. Poston, 19 Mo. 425. If the matter stood here upon this guaranty alone, there might be some room for doubt as to the intention of the parties ; but when considered with reference to all the circumstances and the objects the parties had in view, we are inclined to the opinion that the case comes within the reasoning of the adjudged cases, and that the vendor’s lien was waived—Gilman v. Brown, 1 Mason, 191; 2 Sto. Eq. Jur. § 1226, note 2; 4 Kent’s Com. 153; Fish v. Howland, 1 Paige’s Ch. 20. The vendor’s lien being gone, there remains no ground on which the plaintiff can be entitled to relief by subjecting the land to sale. The effect of the subsequent settlement between the plaintiff and John H. Ferguson on the question of the liability t>*f his estate on that settlement, is not involved in the decision of this case, and we give no opinion concerning it. Judgment affirmed. The other judges concur.