Emlen v. Roper , 133 Ga. 726 ( 1910 )

Evans, P. J.

(After stating the foregoing facts.) The description of the land as contained in the bond for title indicates a sale in gross, and not a sale per acre. The vendors obligated themselves to sell what remained of a specifically described tract of land, after deducting therefrom 20 acres previously sold off, and the quantity remaining was estimated at 40 acres, more or less. The tract sold is accurately defined by metes and bounds, and the use of the words “more or less,” in connection with the number of acres which the tract contained, make clear the vendors’ intention, as expressed in the writing, to sell by the tract and not by the acre.

It is provided in the Civil Code, §3542, that “In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold can not be apportioned. If the quantity is specified as ‘more or less,’ this qualification will cover any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud; in this event the deficiency is apportionable; the purchaser may demand a rescission of the sale, or an apportionment of the price according to relative value.” This section of the code has been before this court several times; in most of the cases the discussion of it arose either upon its relation to the evidence or an instruction by the court as to its application to the facts of the particular case. Its bearing on the pleading where an apportionment in price was claimed was considered in the cases of Thompson v. Boyce, 84 Ga. 497 (11 S. E. 353), and Kendall v. Wells, 126 Ga. 343 (55 S. E. 41). In the latter case it was ruled that where land has been sold and conveyed by the tract, the number of acres being mentioned in the deed only as a •part of the description and not by way of covenant, a vendee who sues for compensation for a deficiency in quantity must allege in his petition facts showing actual fraud on the part of the vendor. In the present case it is alleged that the vendors’ representation at the time of the sale of the number of acres was not only false, but false within the knowledge of the vendors, and was acted upon by the vendee to her injury. This is a charge of actual fraud. It may be that such an allegation might be too general to withstand a special demurrer demanding more circumstantiality of averment as to the materiality of the representation. But no special demurrer -was filed, and the petition was dismissed on oral motion. The code section above quoted allows the vendee to either demand a rescission cf the sale or an apportionment of the price according to relative value. If the vendee preferred to keep the land, and have compensation for the deficiency by reducing the purchase-price by the amount of loss sustained in consequence of the vendors’ fraud, she was entitled, upon tender of the balance of the purchase-money, to go into a court of equity and insist upon a specific performance of the contract of sale, with compensation for-the deficiency. Seegar v. Smith 78 Ga. 616 (3 S. E. 613). This is the case made by the petition.

The distinction between the necessity of an allegation of facts showing actual fraud in the vendee’s pleading claiming compensation for a deficiency in acres, where the sale is by the tract and the number of acres are stated as “more or less,” and the application of §3543 to an instruction of the court where actual fraud is proved, must not be confounded. With reference to.the former the rule is as stated in Kendall v. Wells; supra; but as to the latter the rule is laid down in several cases, particularly in Walton v. Ramsey, 50 Ga. 618; Estes v. Odom, 91 Ga. 600 (18 S. E. 355); Perkins v. Williams, 98 Ga. 388 (35 S. E. 556); Finney v. Morris, 116 Ga. 758 (43 S. E. 1030).

Judgment reversed.

All the Justices concur.