June 14, 1904. 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 and 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 plant 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 testified as to the agreement by correspondence between him and Harsey, to 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.
MR. JUSTICE GRAY dissenting.
The facts of this case are fully set out in the decree of his Honor, the presiding Judge, which together with the exceptions will be reported. The pivotal question in this case in whether the testimony showed that the deficiency in the number of acres was in the swamp lands, which were valued at one dollar per acre. The deficiency amounted to sixty-two acres.
In his decree, the presiding Judge uses this language: "Plaintiff's attorneys say * * * that the deficiency was in swamp land, and that the abatement should be for the value of the swamp land. A sufficient answer for this is that the defendant purchased one hundred and sixty acres of land. He got less than one hundred acres. It is impossible to say what character of land is missing. It is not in evidence at all." The appellant excepted to this finding. The presiding Judge, however, overlooked that portion of Col. D.J. Knotts' testimony relative to this fact, in which he says: "In the survey, the shortage of the land fell of in the swamp. The swamp did not contain all the land we thought it did. I told Mr. Busby that if he got 100 acres more of that land, it would not add anything to the value of his place. This is contained in some of the letters I wrote Mr. Busby and he has introduced." This witness also testified that he was satisfied the acreage of the uplands was all right. The foregoing testimony was introduced without objection. There are several reasons in addition to this testimony which tend to show that the defendant is only entitled to reduce the amount of the plaintiff's recovery by deducting from the sum claimed $62 (the value of the swamp land which was deficient), together with interest thereon from the time the deed was delivered.
In the first place, it is at least doubtful whether the lands were sold by the acre or by metes and bounds.
In the second place, the words, "more or less," were inserted in the receipt for part of the purchase money at the instance of the plaintiff. Then, again, when the deficiency in the land was discovered and the proposition was made to the defendant to reconvey the lands upon the return to him of the $500, which he had paid to the plaintiff, together with interest thereon, he took no steps to bring about such result. I am satisfied that the land is worth $800, it would, therefore, be inequitable to allow the defendant to become the unencumbered owner thereof without being required to pay more than $500 for it.
I am further satisfied that the defendant saw all except the swamp land before he completed the transaction relating to the land, and that he was not misled as to the boundaries thereof.
These, in brief, are the reasons for my dissent.
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