sale.151 And this rule will apply also in cases where the vendor is unable to make title to a particular portion of the tract, and that portion includes the chief elements of value in the whole estate, such as the dwelling house, the spring, and the most valuable improvements.1 As to just what quantity of land may be regarded as "material," in this connection, no fixed rule can be established, but each case must be governed by its particular circumstances. And naturally, a difference must be made between agricultural or rural property on the one hand, and city building lots on the other. In a case in Kentucky, the fact that the purchaser of a tract of land supposed to contain 533 acres failed to get possession of 734 acres was held not to entitle him to a rescission, although the land was thus left in such shape that it could not so conveniently be divided into smaller farms, as was intended by the purchaser, there being nothing to show that the vendor had any knowledge of the uses to which the purchaser meant to put the land.158 And rescission was refused in another case where the tract of land sold was represented to contain 610 acres, but fell short of this amount by 67 acres, but the vendor was ordered to pay the average price per acre for the deficiency.154 And in the same state it is said that a deficiency of 3 acres of land, not worth more than $25, in the sale of a mill seat of 20 acres, is too small to authorize a rescission.155 But a deficiency of one-sixth in the quantity of land, discovered upon a survey made soon after the sale, will justify cancellation at the suit of the purchaser.156 As to city property, it is held in New York that where adjoining buildings encroach from 1 to 32 inches on the property contracted to be sold, the vendee may reject the title.157 And so, where a lot sold is represented as having a frontage of 27 feet 6 inches, and an accurate 151 Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109. 152 Wells v. Porter, 5 B. Mon. (Ky.) 416. 153 Burkholder v. Farmers' Bank of Kentucky, 23 Ky. Law Rep. 2449, 67 S. W. 832. 154 McCoun v. Delany, 3 Bibb (Ky.) 46, 6 Am. Dec. 635. 155 Ball v. Pursefull, 3 Ky. Law Rep. 396. 156 Glover v. Smith, 1 Desaus. (S. C.) 433, 1 Am. Dec. 687. 157 Klim v. Sachs, 102 App. Div. 44, 92 N. Y. Supp. 107. measurement shows that there is a deficiency of 42 inches in the frontage, the vendee may refuse to complete the purchase and may recover the earnest money and expenses.158 But in another case it was said that one who has contracted to purchase vacant lots with a frontage of 75 feet is not entitled to be discharged from his contract because of the failure of the vendor's title to 14 inches of frontage, to which no special value appears to attach, but is only entitled to an abatement in the price.159 Where, on a sale of land, the tract is described by metes and bounds, and is estimated to contain a specified quantity, "more or less," and a gross sum is to be paid for the entire tract (not so much per acre), the purchaser will not be entitled to rescind if the number of acres falls short of the estimated quantity.160 For the addition of the words quoted makes the estimate of quantity a matter of description only, and not of the essence of the contract, and imports a waiver on the part of the purchaser of any warranty as to the precise number of acres. But any misrepresentation or concealment on the part of the vendor will take the case out of this rule.101 And the rule has not always been applied in cases where the deficiency was very great. The theory is that a small difference in quantity may result from inconsiderable errors in surveying, from variations in the instruments used by surveyors, or from other like causes, and that the addition of the words "more or less" to an estimate of quantity is intended to guard against errors arising from such causes. But if the deficiency is too material to be attributed to such errors, the courts have sometimes held that it should be treated as a case of mutual mistake, not within the rule as to the words "more or less," and relief given accordingly. This doctrine was applied in a case in Virginia where the deficiency. 158 Floeting v. Horowitz, 120 App. Div. 492, 104 N. Y. Supp. 1037. 159 Kelly v. Brower, 55 Hun, 606, 7 N. Y. Supp. 752. 160 Williams v. Smith Bros., 135 Ga. 335, 69 S. E. 480; Pollock v. Wilson, 3 Dana (Ky.) 25; Tepper v. Niemeier, 32 Ky. Law Rep. 407, 105 S. W. 896; Jones v. Plater, 2 Gill (Md.) 125, 41 Am. Dec. 408; Willson v. Legro, 75 N. H. 314, 74 Atl. 181; Ketchum v. Stout, 20 Ohio, 453. 161 Ketchum v. Stout, 20 Ohio, 453. amounted to 10 acres in a tract represented to contain 245 acres.162 But on the other hand, in a case in Georgia, where the deed described the land conveyed as being "80 acres more or less," and there was an alleged shortage of 20 acres, it was held to be the province of the jury, and not of the court, to say whether this deficiency was so gross as to authorize a rescission of the contract.103 But where land is sold for a lump sum, and is described in the deed by metes and bounds and as containing a certain quantity more or less, and it appears that the vendee was familiar with the tract and examined it with reference to the amount of timber and bark on it, to secure which was his main object in purchasing it, he is not entitled to have the sale rescinded because the tract actually contains only a little more than half the quantity mentioned in the deed, it appearing further that it did contain the estimated quantity of bark and timber, and that the vendee had cut that off before applying for relief.164 166 Equity will not rescind a transaction of this kind for this cause if there is an adequate remedy at law. Thus, in the case of a deficiency in the quantity of land conveyed, rescission will not be ordered if the vendor can and will supply the deficiency,165 or if the purchaser can be made whole by an abatement or reduction in the purchase money to be paid,100 or if in any other way adequate compensation can be made to him,167 or if the rescission of the contract is impossible because the parties could no longer be restored to the status quo, but the purchaser may recover damages in a suit at law.188 But a purchaser who discovers the fraudulent representations of the vendor as to quantity may not rely thereon as a defense to the vendor's suit to cancel the 162 McComb v. Gilkeson, 110 Va. 406, 66 S. E. 77, 135 Am. St. Rep. 944. 163 Bryan v. Yates, 7 Ga. App. 712, 67 S. E. 1048. 164 Coons v. Muhlenberg, 148 Pa. 344, 23 Atl. 1115. 165 Myrtue v. White (Iowa) 74 N. W. 926. But see Yost v. Shaffer, 3 Ind. 331, 56 Am. Dec. 509. 166 Kelly v. Brower, 55 Hun, 606, 7 N. Y. Supp. 752; Jennings v. Jennings, 2 Abb. Prac. (N. Y.) 6. 167 Anderson v. Snyder, 21 W. Va. 632; Trammell v. Marks, 44 Ga. 166; Martin v. Peddy, 120 Ga. 1079, 48 S. E. 420. 168 Rankin v. Atherton, 3 Paige (N. Y.) 143. contract for the purchaser's default, though such fraud would justify a rescission of the contract or an action for damages for breach of contract.169 Where the mistake tells against the vendor, as, where he has conveyed a much greater quantity of land than he supposed or intended, a rescission of the transaction on equitable terms is the proper remedy, because, as said in an early case in Kentucky, the chancellor cannot set off to the vendee the number of acres which the tract was represented and supposed to contain.170 But even in this case rescission will not be granted where the vendor has an adequate remedy by action at law to recover the price or value of the excess.171 § 145. Inadvertence.-Inadvertence is a lack of heedfulness or attention. It consists essentially in the failure to notice or to remember some circumstance which would materially have affected the decision or action of the party if he had adverted to it. Though it results in his doing something which he would not otherwise have done, it is not the same as "mistake," as that term is used in equity jurisprudence, and is not ground for rescission of a contract, unless there was some fraud or unconscionable conduct on the other side.172 Thus, in a case in South Carolina, an injured employé recovered judgment against his employer, who was protected by a policy of insurance covering such risks. In a creditor's suit against the insured employer, a consent order was entered directing payment of the policy to the insured. In an action on the policy, the answer admitted making the consent order, but alleged that it was done through mistake, the defendant having overlooked the fact of the insolvency of the insured, and the non-payment of the judgment against him, and defendant's escape from liability by reason thereof. But it was held that, even if defendant temporarily forgot these facts, and entered into the consent order, it was still bound by it, since momentary forgetfulness of a known fact is not relievable as a mis 169 Arnold v. Fraser, 43 Mont. 540, 117 Pac. 1064. 171 Culton v. Asher, 149 Ky. 659, 149 S. W. 946. 172 Rose v. Lewis, 157 Ala. 521, 48 South. 105. But see White v. Kincade, 95 Kan. 466, 148 Pac. 607. take.178 So, in a case concerning a deed of trust by way of settlement made by a married woman, it was said: "It is clear that there was no mistake in the sense that she wrongly apprehended the contents of the deed. The most that can be said is that she did not, at the time she executed the deed, anticipate or have in her mind what would be its legal effect in the contingency of her husband's dying before her. She did not at the time think of this contingency, but this is not a mistake which will justify setting aside a settlement, especially when it is not shown that, if this contingency had been in her mind, she would have made a deed in any respect different." 174 But still relief has sometimes been given in such cases, when a strong equity appeared to require it. In one case, the plaintiff conveyed to the defendant a lot of land on which there was a spring, from which the plaintiff, by means of an aqueduct, supplied his own and other premises with water. This aqueduct was of greater value to the plaintiff than the price for which he sold the land. He did not intend to convey the right to use the spring, nor did the defendant know of the existence of the spring at the time of his purchase, but by a mistake of the plaintiff, the deed to the defendant contained no reservation of such right. It was held on these facts that the plaintiff was entitled either to a reconveyance from the defendant of the right to use the water by means of the aqueduct, or, at the option of the defendant, to a reconveyance of the land on repayment to the defendant of the price paid.175 In another case, a vendor agreed to convey land in consideration of the purchaser's agreement to support him. A lawyer was employed by the parties to draw the necessary papers, and he drew a deed conveying the land and a bond for support, making the purchaser and his wife promisors, and a mortgage by them to secure it. The vendor executed the deed, and the lawyer, forgetting that the purchaser's wife should sign the bond and mortgage, delivered the deed to 173 Pickett v. Fidelity & Casualty Co., 60 S. C. 477, 38 S. E. 160, 629. 174 Keyes v. Carleton, 141 Mass. 45, 6 N. E. 524, 55 Am. Rep. 446. 175 Brown v. Lamphear, 35 Vt. 252. |