Stow v. Bozeman's Executors , 29 Ala. 397 ( 1856 )

WALKER, J.

The court below erred, in our opinion, in the rule which it adopted for the ascertainment of the injury sustained by appellant in consequence of the deficiency in the quantity of the land sold to him. The lands sold consisted of the west half of the .fractional section four, and the east half of fractional section five ; and the north and south line, dividing the two contiguous half-sections, is the western boundary line of the former, and the eastern boundary line of the latter. The half-sections were represented to have together an area of 640 acres, while in truth they are fractional sub-divisions; and they are such because the Tallapoosa river passes through a portion of each of the half-sections, the land covered by which is not computed in the government survey. The chancellor who rendered the decree in this case, directed the register, in computing the damages resulting from the deficiency in the quantity, to take into consideration the quality of the lands on the eastern and western boundaries of the two half-sections, and the fact that the complainant had obtained the river and ferry privileges.

When land of stipulated area is purchased, it cannot be inferred that the value or quality of the land, contiguous to it on either side, was an element influencing the contract. The purchase is made upon the hypothesis, that a given number of acres is contained within the boundary; and the injury results from the fact that the given boundaries do not contain the stipulated area, and not from the fact that the boundaries do not contain other and different lands. The land was bought upon the representation and supposition that the two half-sections contained 640 acres,, and not that the boundaries were not so extended as to embrace lands outside on the east and west. It would be most unjust to require one purchasing very fertile lands to receive compensation by reference to poor and worthless adjacent lands; and it would be equally unjust to require the vendor to compensate the purchaser of very poor lands, for a deficiency in quantity, by paying the value of a number of contiguous acres of greater value. Yet such would be the result of an application of the rule adopted in this case. The true rule is, to allow the purchaser compensation for the deficiency, according to the average value of the lands sold at the time of the purchase. See Blessing v. Beatty, 1 Bob. Va. Bep. 281. Following the decisions of this court in analogous cases, the price paid must be regarded as evidence of thev value. — Marshall v. Wood, 16 Ala. 812; Whiteside v. Jennings, 19 Ala. 790 ; Hogan v. Thorington, 8 Porter, 430; Gibbs v. Jemison, 12 ib. 820. Pinkston v. Hine, 9 Ala. 256; Willis v. Dudley, 10 Ala. 938; Kornegay v. White, 10 Ala. 255 ; Worthy, Brown & Co. v. Patterson, 20 Ala. 172; Bowland’s Adm’r v. Shelton, 25 Ala. 220; Marshall v. Gantt, 15 Ala. 686.

We agree with the learned cháncellor, that the ferry and river privileges ought to be considered in estimating the damages. Inasmuch as the purchaser obtained all in the way of benefit from the ferry and river that was contemplated in the contract, he must be.compensated for the deficiency in the quantity of the land by ascertaining the average value without reference to such benefit; or, in other words, the average value of the lands must be ascertained, upon the hypothesis of the absence of the ferry and river, and that average value must be multiplied by the number of acres in the deficiency. If the price agreed to be paid should be adopted as the evidence of value, a deduction of the value of the ferry and river privileges must be made from the aggregate sum agreed to be paid for the entire tract of land, and the remainder must be divided by six hundred and forty, the number of acres represented to be the contents ; and the average value thus ascertained must be multiplied by the number of acres in the deficiency. The amount thus ascertained will be the damages of the complainant.

We concur with the chancellor in the opinion, that the representation of Bozeman as to the location of the eastern boundary line was the mere expression of opinion as to a matter of judgment, and not of knowledge. The proof shows that Bozeman correctly pointed out the south-eastern corner of the land, and that the boundary line running thence north was unmarked. Passing along the direction of that line, he pointed to a log, over or near which he stated (we infer from the testimony, as a matter of judgment,) the line would run. If Bozeman was really mistaken in this opinion, and honestly expressed it, it constitutes no fraud, and is no misrepresentation available to the purchaser in this case. There is no proof which authorizes the conclusion, that Bozeman did not really believe the representation he made as to the location of the line to be true.

The court, having obtained jurisdiction over the case on account of the misrepresentation as to the quantity of the land, should have gone on and done complete justice by settling the entire litigation, without remitting the complainant to his defense at law as to the payments alleged to have been made on the notes. Having jurisdiction for one purpose, the court acquired jurisdiction over the question of the credits on the notes, and ought to have gone on and adjudicated that matter of litigation. If the question of fact had been of damage, or fraud, or any other peculiarly fitted for the determination of a jury, it would have been proper to have left that question for trial at law ; but in this case, the question being one of account, it was proper for the chancellor to have gone on and done complete justice by deciding it.— 1 Story’s Eq. Jur. 88, § 91 ; Catlicart v. Robinson, 5 Peters, 270; Miller v. McCan, 7 Paige’s Ch. R. 460; Russell v. Clark’s Ex’rs, 7 Cranch, 89; Chum v. Heale, 1 Munford, 72.

The mode of computing interest on the deductions made from the purchase money in favor of the complainant, which the chancellor adopted, was manifestly just and proper, and we approve it.

The decree of the courtis reversed, and the cause remanded, for further proceedings in accordance with the foregoing opinion.

Rice, C. J., not sitting.