Paine v. Upton

We are not left in this case to ascertain the facts from the evidence, or to determine whether the evidence supports the facts found by the trial judge.

. The evidence is not contained in the record, and the case comes here on the findings alone. The facts, as found, are therefore conclusively settled, and the only question is whether, upon those facts, the plaintiff is entitled to relief. The defendants, other than Mary A. Upton and Alexander Pomeroy, were owners as tenants in common, of a farm in Monroe county, formerly owned by their father James. Upton, commonly known as his homestead farm. James Upton died in December, 1868. The defendant Mary Upton is his widow? and the. defendant Pomeroy, is one of the executors of his will. A few weeks prior to February 28, 1872, the defendants offered tire _farm for sale. This led to a negotiation between the plaintiff and the defendants, for the purchase and sale of the farm. The plaintiff went upon and examined the farm, and its external boundaries were correctly pointed out to him. At the outset of the negotiation, the plaintiff asked the defendants how much land there was in the farm, and at what price they would sell it. They informed him, that the farm contained two hundred and twenty acres and upward, and that they had asked for the same, $150 an acre, but would sell it for $33,000. At the same time they exhibited to the plaintiff

The plaintiff, on the purchase of the farm, took possession, and has ever since occupied it. About nine months after the deed was given, his suspicion was excited of the accuracy of the representation of quantity, made by the defendants, and upon investigation it was ascertained that the farm, instead of containing two hundred and twenty acres and upward, contains only two hundred and six and thirty-five-one-hundredths acres, there being a deficiency, in reference to the quantity which the defendants represented it to contain,-of more than thirteen acres, the value of which, at the average price per acre paid for the farm, upon the assumption that it contained two hundred and twenty acres, would be $1,953.93.

The precise question presented is, whether, upon the facts found, the plaintiff is entitled to an abatement from the bond and mortgage given for the purchase-money, proportionate to the deficiency of acreage, in the farm.

It is to be observed, that the facts affirmatively show a mutual mistake of the parties, in respect to the quantity of land, which commenced with the commencement of the negotiation for the sale of the farm, and pervaded the whole dealing from that time, until the transaction was consummated, by the giving of the deed, and the execution of the mortgage. This mistake, moreover, was as to an essential and material element of the contract. In the absence of any finding of special facts and circumstances, the natural presumption is, that in a sale of agricultural land, the element of quantity enters into the transaction, and affects the consideration agreed to be paid. But in this case it is plain, that the representaiion of quantity, was deemed material by the partie's. The sale was perhaps not technically, a sale by the acre. But the starting point of the negotiation was an inquiry by the pm-

Leaving out of view for the present, the words ■'¡note or' less, in the contract, and looking' at the contract as still executory, and as if these words had been omitted, the facts found would present a clear case for the interposition of equity. The case of Hill v. Buckley {17 Ves. 394) is a'lead^I ing case on the subject, and has been repeatedly referred to with approval. It was a bill filed by a vendee," against a vendor, for specific performance of a contract for the sale of land for a gross sum, with an abatement for deficiency in the number of acres, stated in the contract. The relief was granted, upon equitable terms, and in the course of his opinion the master of rolls (Sir Wm. Grant) said: “ When a misrepresentation is made as to quantity, though innocently, I apprehend the right of the purchaser to be, to have what the vendor can give ; with an abatement out of the purchase-money for so muchas the quantity falls short of the representation.” And he adds, “ that is the rule generally; as, though the land is neither bought nor sold professedly by the acre, the presumption is, that in fixing the price regard was had on both sides to the quantity, which both suppose the estate to consist of.” But the -right of a purchaser, under such a contract, to have a corresponding abatement of the purchase-money, ¿exists as well after the execution of the deed, as before, where the mistake was not known, when the - deed was executed. This relief has

The contract in this case, is distinguishable from the one in Hill v. Buckley, in the circumstance that the words more or less, annexed to the statement of quantity, and it is a pertinent inquiry, whether if the contract was still executory, the introduction of these words would defeat the right of the plaintiff to relief, notwithstanding the conceded misrepresentation of the defendants, and the mutual mistake of the parties, as to the quantity of land. We are relieved from the necessity of examining the authorities elsewhere, with a view of determining whether under such circumstances the presence of these words, in an executory contract for the sale of land, is a bar to equitable relief, by the decision of this court in Belknap v. Sealey ( 14 N. Y. 143 ). It was there held that the introduction of the words, more or less, following the enumeration of the number of acres, was no obstacle to relief in equity, upon the ground of mistake. The authorities in this State, were carefully reviewed in the able opinion of Comstock, J„, and it was satisfactorily shown that the cases supposed to have a bearing adverse to this view, were of two classes: f/rsi, cases where the question was one of construction purely,

Considering the question on principle, we can perceive no solid ground for affirming the jurisdiction of. a court of equity' in the one case, and denying it in the other. The general jurisdiction, of a court of equity to set aside, or$ to reform written instruments, in cases of fraud or mistake, is| not limited to executory contracts. Such a limitation, as was] said by Robertson, Ch. J., in Harrison v. Talbot ( 2 Dana, 258 ), would be irreconcilable with an obvious and pervading principle of justice. It is doubtless true that the annulling or reforming of executed transactions, is an exercise of supreme judicial power. The power should be exercised with great caution, and when invoked on the ground of mistake, a plain case should be made, before it is exerted. But these are considerations which address themselves to the chancellor, • in the exercise of the jurisdiction ¡¡ they ought not to prevent the interference of equity when the proper occa

The order of the General Term should be affirmed, and the plaintiff should have judgment absolute on the stipulation. All concur.

Order affirmed and judgment accordingly.