Faure v. Martin , 13 Barb. 394 ( 1851 )

By the Court, Barculo, J.

I. The case turns, mainly, upon the construction which is to be put upon that clause of the agreement by which the defendant agrees to sell to the plaintiff, “ All that certain farm, or lot of land now in her possession, and whereon she resides, and whereof the said Jacob Martin died seised, containing ninety-six acres, be the same more or less, for the sum of sixty dollars per acre; to be paid by the said party of the second part in manner and at the time hereinafter mentioned.” The plaintiff’s counsel contends that the sale of the farm was by the acre, and not in bulk; and, consequently, that she is only to pay for the actual number of acres, at the rate of sixty dollars an acre; while the defendant claims that she is entitled to the amount of purchase money which results from assuming the quantity to be ninety-six acres, and multiplying it by sixty. It is our business to determine which of these positions is correct.

In his commentaries, Chancellor Kent lays down the rule thus: “ Whenever it appears by the definite boundaries, or by words of qualification, as ‘more or less,’ op, ‘containing by estimation,’ or the like, that the statement of the quantity of acres in the deed is mere matter of description, and not the essence of the contract, and the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case.” (4 Kent's Com. 446.) Here the plaintiff contracted for the purchase of a farm, described as containing ninety-six acres, more or less. The mention of the quantity was, evidently, merely descriptive, and not of the essence of the contract. There is no covenant that the farm shall contain any specified quantity of land, nor any provision for a survey, or other means of ascertaining the exact number of acres. The number, “ ninety-six,” was used only to determine the amount of the purchase money. The contract, in this respect, is of the same import and effect as if it had been a sale of the farm for $5760.

II. The evidence offered, to prove fraud and mistake, on the trial, was properly rejected, for the reason that the plaintiff had not framed her complaint to meet such a state of facts. For although she does state that the defendant falsely and fraudulently caused to be inserted in the deed a larger number of acres than is contained in said farm, the complaint is wholly destitute of the necessary allegations to impeach the agreement, on the ground of fraud or mistake.

III. Another difficulty encountered by the plaintiff, arises from the lapse of time, and acceptance of a deed. The contract was made September 11th, 1846. On the 1st of April, 1847, she accepted a deed, paid nearly three-fourths of the purchase money, and secured the residue by bond and mortgage, and paid the interest thereon up to the year 1849. The agreement has been consummated, and the plaintiff is too late to avail herself of the pretense that she purchased by the acre, or that the contract was fraudulent.

[Kings General Term, October 6, 1851.

McCown, Morse and Barculo, Justices.]

We think, therefore, that the nonsuit was properly granted, so far as relates to that branch of the subject.

But we think that the defendant was bound, on request, to receive the deed of the eight acre lot, and thus perfect the plaintiff’s title: for she covenants to convey so much of the same as she can obtain. The plaintiff shows that she can now obtain the whole. She must therefore be decreed to receive and accept the deed offered, on being paid the purchase money therefor. Neither party is to have costs of the appeal.

Judgment accordingly. (a)

(a) Affirmed in court of appeals.