Opinion
October Term, 1852
J.W. Elseffer, for appellant. H. Hogeboom for respondent.
The only question presented in this cause is upon the construction of the agreement of the eleventh of September, 1846, made by the parties for the sale and purchase of the premises mentioned in the pleadings. The land is there described as "all that certain farm or lot of land now in her (the defendant's) possession, and whereon she resides, and whereof Jacob Martin died seized, containing ninety-six acres, be the same more or less." This is the whole description. The succeeding clause, "for the sum of sixty dollars per acre," c. relates only to the consideration to be paid by the purchaser. In looking at this description without reference to extrinsic facts, it is obvious that the number of acres was not relied upon by the parties as indicating the absolute but only the proximate and probable quantity of the land. The phrase "be the same more or less," shows uncertainty as to the precise quantity, and that neither the vendor nor vendee intended that the sale should be defeated because the true number of acres exceeded or fell short of the number estimated ( Rawle on Covts. for title, 258, 259 and cases cited). The phrase is therefore sensible and pertinent in the connection in which it stands, and can not be rejected as surplusage. What then was the land purchased by the plaintiff as defined by this contract? The answer is furnished by the first part of the description above quoted. It was the premises in the possession and upon which the defendant resided, and of which her husband Jacob Martin had died seized. There is nothing ambiguous in this description. For aught that appears, the possession of the defendant was open, definite and notorious. There is no allegation in the pleadings, or pretence any where, that the parties did not understand what land was designated by the description. The deed subsequently executed and which specified the limits of the property, was accepted by the vendee without any objection that it did not in this respect conform to the previous agreement and understanding of both parties. Indeed the vendor and vendee have never differed as to the boundaries of the premises but only as to the quantity of land embraced in them. The defendant, therefore, was bound to execute and the plaintiff to accept a conveyance of the land within the limits assigned by the agreement. If this is the fair construction of the contract, it substantially disposes of the question under consideration.
The vendee agreed "to pay the sum of sixty dollars per acre for the premises." This covenant must refer to the estimated number of acres previously mentioned, because this was the only data furnished by the contract for a computation of the consideration money. In the language of the contract the vendee was "to pay the purchase money on receiving a deed." But what amount? The agreement implies that the obligations of the respective parties are there defined. The vendor as we have seen, would discharge himself by a conveyance excluding all mention of quantity, but conforming in other respects to the description in the contract. The vendoe was to pay or secure the whole purchase money. No previous act was to be done, no survey was to be made, and if the plaintiff had entered upon the premises with a view to ascertain the quantity by actual measurement, he would have subjected himself to an action of trespass. It is sufficient to say, however, that there is no covenant, express or implied upon the vendor as to quantity, nor any stipulation that the number of acres should be ascertained by the joint or separate action of the parties or either of them. It follows that the vendee must ascertain the amount of the consideration from the number of acres estimated in the agreement and not otherwise. The parties have constantly acted upon this assumption. No survey was made nor any overtures to that effect by any one. The deed was accepted, the purchase money paid and secured upon this basis; and the deficiency which is now the subject of complaint was not, according to the allegation of the plaintiff ascertained until some time subsequently. This view disposes of the case. It is not claimed that the original agreement was procured by fraud, misrepresentation or mistake. The right of the parties was then established; and although the defendant subsequently and when the deed was executed, "falsely, fraudulently and with knowledge of the fact, inserted in the deed a larger number of acres than was contained in said farm," it would not affect the plaintiff injuriously. The result of the matter would be that the parties in good faith entered into an agreement which the defendant subsequently fulfilled according to the letter and spirit. Fraud in any sense can not be affirmed of such a transaction, whatever might be the motive of the vendor in complying with her covenant. The evidence offered was therefore properly rejected as immaterial, and the judgment for the reasons suggested should be affirmed.
On the 11th September, 1846, an agreement was entered into between these parties for the sale of a farm by the defendant to the plaintiff On the first of April, 1847, the agreement was consummated by a deed which particularly described the premises, the description ending with the words "containing ninety-six acres more or less." This is all that the deed contains as to the quantity, but the agreement says "containing ninety-six acres, be the same more or less, for the sum of $60 per acre." Upon the execution of the deed a mortgage was given for $1100 of the purchase money, which was not paid when it became due, and the defendant proceeded to foreclose it under the statute. The plaintiff then alleged that the premises did not contain ninety-six acres, but only eighty-six acres, and brought this suit to obtain a deduction on the mortgage of $60 the acre for the deficient ten acres.
There is no allegation in the complaint that there was any fraud as to the quantity, but simply that the defendant represented there were ninety-six acres, and the plaintiff believed that it was so and bought accordingly.
On the trial, there were several offers made to prove fraud on the part of the defendant, but the evidence was excluded and the court ruled that under the pleadings no evidence could be received of fraud or mistake in respect to the quantity, that the sale was in bulk and not by the acre, and that the plaintiff was not entitled to any allowance for a deficiency in the quantity.
It does not appear from the case what was the judgment rendered at the circuit, though from the foregoing statements of the ruling there, it may be inferred what it was. At the general term it was simply denying a motion for a new trial.
The consideration mentioned in the deed was $5760, or equal to $60 an acre for ninety-six acres.
The ruling as to the evidence of fraud was clearly right, because there was no allegation of fraud in the complaint, and it would have been improper to allow the plaintiff to have enlarged by evidence offered on the trial the cause of action as she had chosen to set it out in her pleadings.
And the whole question is, whether even if there was a mistake as to the quantity, it can now be corrected.
I agree with the learned judge who presided at the circuit, in the opinion that the sale was one in bulk and not by the acre. There is no covenant or agreement anywhere that the premises do or shall contain any specific quantity. In both the agreement and the deed, the quantity is stated indefinitely "ninety-six acres, more or less." And in both the farm is described as a whole, as having been bought of a particular person, as in the possession of the defendant and as bounded by the lands of others who are named. And whether the farm contained more or less than the quantity named, all of it passed as it had thus been bought and occupied and bounded. Such it appears to me was clearly the intention of the parties as it is to be gathered from their written contract, and the purchaser was to take the risk whether the quantity fell short or run over. But even if it were otherwise, and even if both parties honestly made a mistake as to the quantity, it is not such an error as the courts can relieve against.
In actions at law, the suggestions of a mistake were never listened to as a defence in regard to a contract explicit in its terms. But in equity it was otherwise, and relief against mistakes was one ground of equitable jurisdiction. But even there, the relief would not be granted unless the mistake was as palpable as if admitted and was so great as to produce the conviction that the contract, but for the mistake, never would have been made, and being made was entirely different from what was intended. And it was an essential ingredient to any relief under this head that it should be on an accident perfectly distinct from the sense of the instrument (per Ld. Thurlow, 1 Bro. 350; Gillespie v. Moon, 2 John. Ch. R. 596; see also 2 Kent's Com. 491, 5 ed. note c; Story, Eq. J. § 121 to 194).
These principles, which are well established, are directly in the way of affording to the plaintiff the relief she seeks. But we are not without authority as to their application to a case like the present. In Marvin v. Bennett (24 Wend, 169), application was made for relief on the ground of a mistake in the quantity. Gardiner, vice chancellor, the chancellor and the court for the correction of errors, all denied this relief on the ground that where a lot or farm is sold in gross and conveyed by a deed containing the words "more or less," such words being inserted upon deliberation because neither party professed to know the precise quantity contained within the boundaries of the deed, no court ought to interfere to make a new contract for the parties which they did not think proper to make for themselves. In Veeder v. Fonda (3 Paige, 98), the chancellor after alluding to the conflict in the American courts on this subject, says, "It seems now to be generally understood that where the contract has been consummated without fraud, misrepresentation or concealment as to the real quantity, the courts will not inquire whether there has been a mutual mistake as to the supposed quantity contained within certain specified boundaries."
I think these cases were determined upon just principles, and therefore I am of opinion that the ruling in this case at the circuit was correct, and the judgment ought to be affirmed.
All the judges except GRIDLEY, J. who did not hear the argument, concurring,
Judgment affirmed.