Harsey v. Busby

The opinion of the Court was delivered by

Mr. Justice Jones.

We are of the opinion that the decree of the Court should be affirmed for the reasons therein stated. The contention of the appellant, that the deficiency of acreage was in the swamp land, is not supported by the testimony. It is true, D. J. Knotts, a witness for the plaintiff, testified: “In the survey, the shortage of the land fell off in the swamp. The swamp did not contain all the land we thought it did.” But on cross-examination, at page 25, “Case,” Mr. Knotts testified: “I never surveyed the swamp lands and don’t know to-day how much land there is in the swamp * * * I made an estimate by knowing what was on the hill.” The land was sold to' defendant, Busby, on the representation that it contained 160 acres, and a plat thereof was delivered to defendant during the negotiations for sale and subsequently attached to the deed of conveyance to Busby. This plat was made by D. J. Knotts as surveyor. After the controversy arose, a resurvey was made, which showed a deficiency of at least sixty-two acres. Was the deficiency in the swamp land? It is manifest that Mr. Knotts’ statement that the deficiency was in the swamp land goes for nothing, unless he knew how much swamp land the tract was understood by the parties to contain when it was sold, and how much swamp land was actually conveyed, as shown by the resurvey. One must know the minuend and the subtrahend before undertaking to state the remainder.

Moreover, the Circuit Judge in his decree calls attention to a very significant fact, viz: that Mr. Knotts, who represented the plaintiff, admitted that so much of the tract as is contained in triangle B. C. D., on plat delivered to¡ defendant, did not go to the defendant. How much this triangle contained, and whether it was swamp land or not, does not appear. The Circuit Court was clearly right in saying that it is impossible from the evidence to’ say what character of land is missing.

Furthermore, as tending to show the justice of the conclusion reached by the Circuit Court, the defendant, on page 9 of the brief, testifies: “I received another direct reply from Harsey, under date January 21, 1901, accepting the proposition I had made to him for a resurvey, and a reduction of $5 per acre for all land not there, in the shape of an indorsement on my notes. Letter offered in evidence, marked Ex. “V.” Exhibit V. is not printed in the record, but in exhibit W., which is printed, Harsey writes: “All I want is for you to pay for what land you get * * * Please survey at once and let me hear from you, &c.” At page 13 of the “Case,” defendant, Busby, further testifieed as to the agreement by correspondence between him and Harsey, to1 the effect, that if there was a shortage, Harsey was to credit Busby’s notes at $5 per acre for every acre short; and if there was an over-plus, then Busby was to pay $5 per acre for every acre over-plus. There is nothing in the record to show that . Busby was mistaken in his view of the terms of agreement, which led to the resurvey to ascertain whether there was a deficiency.

The judgment of the Circuit Court should be affirmed.