Hinthia v. Lovelace's Admr. ( 1871 )

Opinion by

Judge Robertson:

Whether a deficit of forty-four acres of land conveyed as “supposed” to contain 184 acres should entitle the vendee to compensation may depend on circumstances extrinsic as well as intrinsic, conducing to show fraud or gross mistake.

The answer in this case, alleging such mistake, avers that the vendor represented that the boundary sold contained 184 acres.

Such magnified representation as a fact not merely as an opinion might, if false, entitle the vendee to relief although the vendor may have believed what he said, for the assertion of a fact is equivalent to a warranty if the asserter did not know the truth of what he affirmed, and would be fraud if he knew it to be untrue.

The representation as averred should be traversed, and the demurrer to the answer ought therefore to have been overruled.

Wherefore the judgment is reversed and the cause remanded for further proceedings.