
    Tillie M. Henn, Administratrix, et al., Appellees, v. David D. McGinnis, Appellant, et al., Interveners.
    1 VENDOR AND PURCHASER: Performance of Contract — Excess in Acreage — Mutual Mistake — Relief. One who agrees to pay a specified price per acre for a specifically described tract of land, on the mistaken assumption, mutually indulged, in by both buyer and seller, that the tract contained a certain acreage, must, on discovery of an excess acreage, pay the deficiency, even though such discovery is not made until after payment has been made and deed has been issued.
    PRINCIPLE APPLIED: The land in question was of irregular shape, and had been in the same family for many years. It was entered on the public records as containing 32.44 acres. All members of the family supposed these figures were correct, and the land as 32.44 acres passed to the mother, on the death of the father, who owned it, as part of her one-third share. The mother died, and the tract was ordered sold to-pay debts. A son agreed to buy. All parties interested then believed the tract contained but 32.44 acres, though no acreage was mentioned in the contract. The land was specifically and correctly described in the contract. The contract to buy was “For the consideration of $110 per acre, amounting to $3,568.40 which said consideration said party of the second part hereby agrees to pay.”
    Payment was made, and deed duly delivered. Immediately thereafter, it was discovered that the tract contained 41.69 acres.
    
      Held, the buyer must pay the deficiency.
    2 EVIDENCE: Parol as Affecting Writing — Merger. Principle recognized that a written contract works a merger of all prior oral negotiations.
    3 VENDOS AND PURCHASER: Rescission by Vendor- — Mistake in Acreage — Re-Computation of Consideration. One who has specifically agreed to sell a specified tract of land for a stated price per acre may not rescind upon discovering that the tract contains more acreage than he and the buyer mutually supposed. The sale right of the seller, if payment has been made and deed-» passed, is 'to have a re-computation of the consideration on the basis of the correct acreage.
    4 TRIAL: Method of Trial — Law (?) or Equity (?) — Undoubted Liability — Effect. A defendant may not complain that he was kept on the equity side of the calendar, when the record establishes his absolute and definite financial liability to plaintiff, irrespective of calendars.
    5 EXECUTORS AND ADMINISTRATORS: Sales and Conveyances —Unauthorized Intervention. Claimants against an estate may not intervene in a proceeding to sell the admit ted lands of the deceased in order to pay debts, and establish a claim to any part of the funds on the grounds that the deceased acquired such lands from her deceased husband, as part of her distributive share, and that, in setting off said lands to her, a mutual mistake was made and she was given an excess acreage, and that claimants are entitled to the value of the excess as heirs of the husband.
    
      Appeal from Page District Court. — Thomas Arthur, Judge.
    December 18, 1917.
    Suit in equity to reform a contract for the sale of real estate on the ground of mutual mistake as to the acreage in the tract sold. The defendant denies that there was any mistake, and especially denies that there was any mistake on his part. There was a decree for the plaintiff, and the defendant appeals . —
    Affirmed.
    
      Orr 4 Turner and John McLennan, for appellant.
    
      Scott & Peters, for appellees.
   Evans, J.

— I. The plaintiff is the administratrix with will annexed of the estate of Martha J. McGinnis, who was the mother of all the parties hereto. As such administratrix, she brought a proceeding asking for authority to sell certain real estate for tlie payment of debts, and such authority was accordingly granted. In pursuance thereof, she sold a certain tract to her brother, David D. McGinnis, defendant herein, at an agreed price of $110 an acre. A written contract of sale was first entered into. Pursuant thereto, a deed was later executed and delivered. At the time that the contract was entered into, both parties believed that the tract in question contained 32.44 acres; and such was their belief when the deed was executed, a month or so later. The claim of mutual mistake is based upon the fact that, notwithstanding such belief of both parties, the tract in question in fact contained 41.69 acres. The plaintiff, having settled with the defendant on the basis of 32.44 acres at $110 per acre, brought this action for relief in equity.

The material facts in the case are not greatly in dispute. It appears that the tract in question had been owned in the family for many years. It had been originally a part of the ‘farm of the father of these parties, who died in 1903. Martha J. McGinnis being the surviving spouse, this tract was included in her distributive share. It was an irregular tract, so far as its boundaries were concerned, being located upon the state line between Iowa and Missouri. It had been entered upon the public records as an irregular survey', and the acreage thereof had been entered upon the same records as being 32.44. These figures had been accepted as correct by the family for many years, and the tract was included in the distributive share of the mother, many years ago, upon that acreage basis. Immediately after the delivery of the deed to the defendant, and the receipt of the consideration from him of $3,568.40, the plaintiff discovered the alleged mistake. There is no dispute in this record but that the tract contains in fact 41.69 acres. There is no dispute but that the contract and deed contained the correct description of the tract. The only dispute that appears in the evidence is as to what was actually said between ‘the parties P5’i°r i;o their entering into the written contract. For the plaintiff, it is made to appear that an oral agreement was reached on the basis of $110 an acre for the tract. ' The defendant testified that all that he ever agreed to in advance of the written contract was that he would pay from $100. to $110-an acre for the place, if he was satisfied with it when he looked it over. He also testified that he had made up his mind that he would pay $3,508.40 for the tract, and no more. He further testified that he would not have paid any greater sum for it, even if he had known that it contained more than 32.44 acres. We do not regard the dispute at this point as very material, because whatever was said between the parties was merged in the written contract, and such written contract itself shows that the parties had agreed upon $110 per acre. Such contract recites an agreement of sale of the tract, correctly described, “for the consideration of $110 per acre, amounting to $3,508.40, which said consideration said party of the second part hereby agrees to pay to the said party of the first part as follows

It' will be seen from the above that the contract .expressly called for $110 per acre, The contract does not an terms state the acreage. It does purport to make the computation of the sum total at $3,568.40. Taking this sum total and the price per acre at $110, it shows that the computation was made upon the basis of an acreage of 32.44. The only equitable relief asked by the plaintiff is to correct the computation in the contract as having been made upon a wrong basis. We see very little standing room for the defendant in his resistance to her claim. It is urged for him that, if it was a mutual mistake, the plaintiff is not entitled to specific performalice; iliat the utmost she is entitled to would be a rescission. There might well be a case of mutual mistake where rescission would be the only remedy available to the injured party, on the ground that, by reason of the mutual mistake, the other party had never agreed to the contract in its corrected form. But in the case before us, the defendant did agree to purchase the tract, and all of it, at $110 per acre. Strictly speaking, the mutual mistake was not in the contract proper, but in the computation made pursuant to the contract. The fact that such computation was inserted in the contract made it no less a computation, in view of the fact that the rate per acre was specifically agreed upon. In any view of the case, the' utmost that the defendant could contend for would be the right of election between a rescission and performance on his part. The plaintiff could not have demanded a rescission. Notwithstanding the mutual mistake, she was still bound to convey at $110 per acre. Having no right to rescind, it were an idle ceremony on her part to offer to rescind. We think it clear, therefore, that she asked for the only relief to which she was entitled: namely, a correction of the computation and the adoption of the correct acreage as a basis of such computation. Being entitled to this relief, it necessarily follows, under the undisputed evidence, that she was entitled to recover the unpaid purchase money, amounting to $1,017.50.

Some question, is raised as to her right equity side of the court. Complaint ls made here because the court refused to transfer the case to the law side. This question has little importance to the defendant. If the case were pending on the law side, the plaintiff would, nevertheless, be entitled' to judgment, under the undisputed evidence. Moreover, it appears that the trial court overruled the motion to transfer, because not made in time. Tf reformation was necessary in order to entitle the plaintiff to the relief prayed, then clearly she was properly on the equity side. If reformation was not necessary in order to enable her to obtain such relief, it was because the contract entitled her to the relief without reformation. The general rule appears to be that, for relief on the ground of mutual mistake, the injured party may elect either the law or the equity side of the court. Fisher v. Trumbauer & Smith, 160 Iowa 255; Rathke v. Tyler, 136 Iowa 284. See also Johnson v. Trump, 172 Iowa 251. We think the decree of the district court allowing recovery for the excess acreage was right.

II. Samuel J. McGinnis and William J. McGinnis have intervened. They appear as heirs of their father. They aver that, in the distribution of their father’s estate, this tract was included in the distributive share of Martha J. McGinnis as 32.44 acres. They contend, therefore, that whatever excess is now found to exist in such tract equitably belongs to the heirs of their father’s estate. If the argument be conceded, the petition of intervention has no place in this case.

The land did belong to the estate of Martha McGinnis. It was sold by plaintiff under the order of the probate court for the purpose of paying debts. She was bound to account for it' accordingly. To allow the intervention would be to absorb the fund created by the probate court for such purpose. If, as heirs of their 'father, interveners have a legitimate claim against the estate of their mother, there is an appropriate way to make it. We think their petition herein was properly dismissed. For that reason, the decree below is, in all respects, — Affirmed.

Gaxnor, G. J., Ladd and Salinger, J.J., concur.  