
    Belknap v. Sealey.
    Equity will rescind a contract for the sale of land, upon the application of the purchaser, when it clearly appears that the parties acted under a mutual mistake as to the number of acres or lots which the boundaries contained; and it is proved that the deficiency was material.
    In such a (¡ase, the relief will be granted, even when the words “ more or less ” are added to the description of the quantity of the land in the contract.
    
      (Before Duer, Bosworth, and Emmet, J.J.)
    October 28
    December 24, 1853.
    Even when the complaint claims relief solely upon the ground of a fraudulent representation by the vendor, the relief will be granted, if, in the answer of the defendant, the mistake is confessed.
    Judgment at special term affirmed, with costs.
    Appeal from a judgment at special term.
    The complaint alleges, that the plaintiff, on the 22d February, 1851, bargained with the defendant to buy of him a piece of ground at and near the south-east corner of Atlantic street and Clason Avenue, in Brooklyn.
    That defendant, well knowing the premises to contain a much less quantity than 8 acres and 154 perches of land—viz. 4 acres and TVro parts of an acre only, then and there falsely, and as plaintiff believes, fraudulently represented, or caused the premises to be represented, to him to be and contain 8 acres and 154 perches; falsely, and as he believes fraudulently and deceitfully, induced him to buy the said premises, and sold the said premises to him for fourteen thousand dollars.
    That plaintiff paid defendant one thousand dollars, part of the purchase money.
    That the premises did not contain 8 acres and 154 perches, but only 4 acres and T~yk.
    That defendant having so falsely and fraudulently deceived and defrauded him in the said sale, he thereby lost and was deprived of all the benefit and advantage which he might and otherwise would have derived and acquired from the said sale to him.
    That, on or about 8th March, 1851, as soon as he had ascertained that the said representations were untriie, he demanded of defendant a return of the one thousand dollars, which defen dant refused and still refuses. Plaintiff demands judgment for the one thousand dollars, and interest.
    The answer denies that plaintiff bargained with defendant to buy the premises; also that he well knowing the premises to contain much less than 8 acres and 154 perches—viz. only 4 acres, by falsely or fraudulently representing, or causing the premises to be represented, to plaintiff to contain 8 acres and 154 perches, falsely, or fraudulently, or deceitfully induced plaintiff to buy the premises, or sold them to him for fourteen thousand dollars.
    It avers, that shortly before the 22d February, 1851, one Herman C. Adams bargained with defendant to buy of him, for thirteen thousand dollars, the premises mentioned in complaint, particularly described in a deed made by Samuel T. Roberts and wife to defendant, dated 28th May, 1850, and therein described as containing about 9 acres more or less, excepting thereout 1 acre and 6 perches.
    That defendant expressly stated to Adams that he was ignorant of the quantity of land contained in said premises, and that if he purchased them of defendant he must purchase them as defendant had purchased them, as containing- more or less, and as described in said deed.
    That defendant left said deed with Adams for his examination. That Adams agreed to buy the premises of defendant, as described in said deed, be the quantity greater or less, for the sum of thirteen thousand dollars.
    That on or about the 22d February, 1851, Adams paid defendant one thousand dollars on account of said purchase, and requested defendant to give a receipt for that sum in the name of the plaintiff. That defendant gave such receipt in the name of plaintiff, solely at Adams’ request, and also at his request mentioned the price to be paid for the land to be fourteen thousand dollars.
    That he has no knowledge or information, sufficient to form a belief, what quantity of acres or perches the premises contain) and controverts the allegations in complaint as to the quantity therein stated, and denies that he falsely or fraudulently deceived or defrauded plaintiff in the sale, or that he made any representations whatever to plaintiff.
    That he has always been ready to complete the bargain made by him with Adams, and in pursuance of his (Adams’) request made out a deed conveying the premises to plaintiff) which deed, executed by himself and wife, he tendered to plaintiff on 10th March, 1851.
    The reply controverts the new matter alleged in the answer.
    It admits that defendant gave to him a receipt in his (plaintiff ’s) name for the one thousand dollars paid him as stated in complaint, but denies that it was so given in his name, or that the price to he paid for the land was mentioned to he fourteen thousand dollars at the request of Adams, unless such request was made by Adams as the agent of defendant; denies all knowledge or information of any other receipt; denies that defendant has been ever ready to complete the bargain made with him (plaintiff); or that he, in pursuance of any request of plaintiff’s, or made by his authority, executed or tendered any deed conveying the premises bargained for by plaintiff; or that plaintiff ever requested, or authorized any one to request defendant, to make out or execute a deed containing a less quantity than the premises were represented by defendant to contain as alleged in complaint.
    The facts of the case as proved on the trial were as follows.
    The premises in question were conveyed to the defendant by Samuel T. Roberts and wife, by deed dated 28th May, 1850, which was produced in evidence. They were described in that deed as “ containing about 9 acres, be the same more or less, excepting therefrom 1 acre and 6 perches;” but in fact they contained only 4 x\0-¡^- acres, as shown by the surveyor, who also testified that property in that part of Brooklyn was only valuable for building lots.
    
      Herman 0. Adams, a real estate broker, testified that his attention was first called to this property by Mr. Kinney, and that he had been in negotiation with the defendant for the purchase of it for six or eight months previous to February, 1851, about which time defendant finally proposed to take thirteen thousand dollars for it. Adams told him he had no doubt he, Adams, could sell it, and that he knew a party who had purchased in the neighborhood. Defendant told Adams he would give him all he could get over thirteen thousand dollars, and Adams told defendant he would take it himself if, he could not sell it.
    Adams then went to plaintiff, mentioned the property to him, and asked him fourteen thousand dollars for it, without disclosing the name of defendant as principal. Plaintiff requested Adams to show him a diagram of the property. Adams got one from the defendant, which was produced in evidence, showed it to plaintiff, and sold him the property for fourteen thousand dollars. Adams was but a few days in negotiating with plaintiff before he sold him the land. Before the bargain was concluded, Adams and plaintiff went on the land together and saw it, but, he thought, they had not the diagram with them on that occasion. Defendant had given Adams his deed, and Adams thought that he showed it to plaintiff before the bargain was concluded with him; but thonght he had not the deed when he and plaintiff went on the premises together. Adams did not know, and there was no evidence, that plaintiff and defendant had ever come together in relation to this purchase; nor was there any evidence that plaintiff’s name was mentioned to the defendant prior to the payment of the one thousand dollars, and taking the receipt for it from defendant.
    The receipt, in the defendant’s handwriting, was given in evidence by the plaintiff, as follows :
    “New York, February 22, 1851.
    “ Received from Edward Belknap, per H. C. Adams, one thousand dollars* on account of purchase of property at Brooklyn, being the same premises conveyed to me by Samuel T. Roberts, by deed dated 28th May, 1850, and which I hereby agree to convey to the said Belknap, or to his order, on the 10th day of March next, upon the payment of the further sum of thirteen thousand dollars; or six thousand dollars, and subject to a mortgage now upon the same made by me to J. & J. F. Marshall, to secure the sum of seven thousand dollars. Said deed to bear date the 1st instant. '
    “ Behj. T. Sealey.”
    The judge having refused to dismiss the complaint on this evidence, the defendant called
    
      Gabriel 0. Kinney, who testified, that the defendant had employed him to sell the property as his broker, and that he was to receive a commission from defendant; that he had made the diagram and shown it to Adams previous to the conversation between Adams and defendant about the land; that he was present at such conversation, and Adams told defendant he would take the property as represented in the diagram at fourteen thousand dollars. He did not recollect whether "Adams said anything about the quantity of land. That Adams in a few days afterwards called with the one thousand dollars, and witness was present when the defendant received it. Adams requested the receipt to be made to plaintiff; that he recollected a conversation which he thought was about the time Adams paid the one thousand dollars, in which Adams asked defendant what quantity of land there was, and defendant said he did not know anything more about it than what the deed to him spoke of; he represented it just as the deed represented it. Adams said he had sold it to the plaintiff.
    The cause was tried before Mr. Justice Campbell without a jury, and on this evidence the judge found that the quantity of land formed an essential inducement to the plaintiff to purchase, and that the actual quantity was substantially and essentially less than the quantity which the plaintiff supposed he was purchasing ; and so the plaintiff was misled as to the quantity he purchased, the representations made to him by the defendant being in fact untrue, though not intentionally false. He adjudged that the error into which the plaintiff was thus led was sufficient to warrant him in relieving him from the contract; and gave judgment for the plaintiff for the one thousand dollars paid, with interest.
    
      W. C. Noyes, for defendant,
    in moving to reverse the judgment, made and argued the following points.
    I. The motion to dismiss the complaint should have been granted, because—1. The complaint is for a cause of action founded solely upon fraud' and misrepresentation as to the quantity of land, and charged the defendant with making the misrepresentation, knowing it to be wholly false, and with the intent to deceive him; and that thereby he was fraudulently drawn into a purchase of only about four acres, when it was represented to him, and he bargained for, upwards of eight acres, and upon this the issue was joined. 2. Hot a particle of evidence was given to sustain the issue thus made ; nor was it pretended to be sustained. It was simply proved, that there was not so much land as the diagram and deed were supposed to call for; but there was no evidence of any misrepresentation on that subject, or of any fraud whatever. 3. This action was not maintainable without proof of the fraud alleged. It was not a case in which the plaintiff might disregard the allegations in the complaint charging fraud, and still recover, as if he had not inserted them: that rule only applied to cases where the action was upon a warranty, which the plaintiff alleged to have been a fraudulent one, but yet was permitted to recover, though he failed to prove the fraud, having proved the warranty, which was alone the gist of the action (1 Chitty’s Pl. Ed. of 1844, pp. 137, 388; Williams v. Allison, 2 East. R. 446). Here there was no warranty, nor any complaint as upon a warranty, nor, upon the facts alleged, was any action maintainable, without proof of the fraud. 4. The action was not maintainable, upon the ground that there was a mutual mistake as to the quantity of land, and that, therefore, the plaintiff was authorized to rescind the contract, and recover back that part of the purchase money which he had paid. (a) Ho such case was made by the complaint, nor was any such issue presented. (6) Ho such case was proved; none of the parties were mistaken as to the subject matter of the purchase, or as to the quantity; both saw and examined it, and knew the precise limits which the land embraced; it was simply an agreement to sell that specific parcel of land, and no more; and there was no evidence that the plaintiff was under any mistake about it; it was his duty to have had the land measured, if he wished to be certain as to the quantity, or to have protected himself by an express agreement as to there being a certain quantity. (o) The agreement for the sale of the land, covers only the premises described in the deed, whether small or great; it contains no clause guaranteeing any particular quantity ; and the deed itself, by which the lands were sold, and which the plaintiff saw and examined before he purchased, describes them as “ containing about nine acres, be the same more or less.” (d) The case is, therefore, to be considered in the same manner as if the deed was embodied in the agreement to sell, and then there was no statement or representation other than that the premises contained an uncertain quantity of land, which the plaintiff purchased for a specified sum, and in respect of which any idea of a warranty of quantity was excluded. (Winch v. Winchester, 1 V. & B. 375; Root v. Puff, 3 Bar. S. C. R. 353; 1 Sug. on V. & B. 320, and notes; Jackson v. Barringer, 15 John. R. 471; Jackson v. McConnell, 19 Wend. 175.) (e) It is settled in cases of this description, and in the absence of all fraud, that the plaintiff is not entitled to any relief, but must take and pay for the land as described. (Stebbins v. Eddy, 4 Mason’s R. 414; 2 Kent’s Com. 484, 5; Dart on V. & P. 443; 2 Russell, 570.)
    
      J. J. Townsend, for plaintiff,
    I. Where there is a substantial defect in the estate sold, either in title or in the representation 'or description of the nature, character, extent, or quality, which is unknown to the vendee, or in regard to which he is not put upon inquiry, he may rescind the contract, and a specific performance will not be decreed against him. (Story Eq. Jur., § 778; 2 Kent Com. 6 Ed., p. 475; Pringle v. Witten, 1 Bay R. 256; Gray v. Hankinson, id. p. 278; Glover v. Smith, 1 Eq. R. 433; Flight v. Boody, 1 Bing. N. C. 377; Jones v. Edney, 3 Camp, 285; Waring v. Hoggart, 1 Ry. & M. 39; Stewart v. Allison, 1 Mer. 26; Halsey v. Grant, 13 Ves. 78; Price v. North, 2 Young & Col. 621; Shackleton v. Sutcliffe, 1 De G. & S. 609.)
    II. The plaintiff has used extreme diligence, and has been in no default. (See Story on Sales, 422; Pringle v. Samuels, 1 Little, 94; Hill v. Buckley, 17 Ves. 394, 401; King v. Wilson, 6 Beav. 124.)
    III. The words “more or less” in the deed do not aid the defendant. The case does not show that the plaintiff ever saw the deed. These words are only intended to cover a reasonable defect. (Thomas v. Perry, 1 Peters 58; Quesnel v. Woodlief, 2 Hen. and Mun. 173, note; Day v. Fenn, Owen, 133; cited in Sug. on Ven. 370; Portman v. Mill, 2 Russ. ch. 570; Shackleton v. Sutcliffe, 1 De G. & S. 609; Hill v. Buckley, 17 Ves. 400; 4 Kent 467, 6th ed.)
    IV. A distinction existe between agricultural lands and lands valuable only for city lots, in reference to the materiality of the description of quantity.
    
      V. The judge who tried the cause passed upon the fact that the quantity described formed an essential inducement to the plaintiff to purchase.
   By the Court. Emmet, J.

The view taken of this case by the judge before whom it was tried presents the following questions.

First, Was the contract of sale made under a mutual mistake of both plaintiff and defendant as to the actual quantity of land ?

Second, Was the fact, in regard to which such mutual mistake existed, material to the contract; or, in the words of the judgment below, was the actual quantity substantially and essentially less than the quantity which the plaintiff supposed he was purchasing ?

Thvrd, Did such mutual mistake, and materiality as to the fact in regard to which it existed, warrant the court in rescind ing the contract and replacing the parties as they stood before it was made %

The last inquiry necessarily involves the consideration of the first; because the fact of the defendant being mistaken as to the quantity of land can only be obtained from his own allegations in his answer, and if those allegations, taken to be true, are sufficient to establish that fact, he must be bound by them in ' regard to the issues involved in the case.

-It is true, as urged by the defendant, that the cause of action set forth in the complaint rests exclusively upon the alleged misrepresentation and fraud of the defendant as to the quantity of land; and if the defendant had confined himself in his answer to a denial of that charge, the case would have presented the single issue, whether the plaintiff had been deceived in the purchase by the falsehood and fraud of the defendant. But the defendant, not denying the alleged discrepancy in the quantity of land, has distinctly set up his own ignorance on that subject, by disclaiming any knowledge in regard to it*when the contract was made, and by averring that during the negotiation he expressly stated such ignorance to Adams, the broker. If this statement was true, and that he really had no other knowledge as to the quantity of land than what he derived from the deed from Roberts to Mm, he was clearly as much under a mistake in that respect as the plaintiff, who has derived whatever belief or supposition he may have had as to the quantity of land, from the same source. The question of the defendant’s mistake was therefore distinctly presented by himself. He has no right to complain that fall credit has been given to Ms own statement in this respect, nor ought he to object to having this conclusion drawn from his answer, because no other can fully exonerate him from the imputation of having known at the time that the premises actually contained much less land than what the plaintiff, or any one, would have been led to suppose from the Roberts deed, and of having thus committed a deliberate fraud on the plaintiff. The judge on the trial was warranted, therefore, in viewing this case as one of mutual mistake in fact, and in holding that question, as matter of law, to be one of the issues involved in it; and his decision in that respect was a vindication of the defendant’s honesty and good faith in the transaction.

In considering the point of materiality, it should be observed, that this was a purchase in bulk, for a round and not inconsiderable sum, of a small piece of land, valuable only for braiding lots; and that the deficiency complained of amounted to nearly one-half of what might reasonably be inferred to be the quantity, from the description in the Roberts deed. That description, it is true, contains the words, be the same more or less,” in reference to the contents of the premises, but those words cannot, either on principle or authority, cover so glaring a discrepancy as this case presents. It was held, at a very early period of English jurisprudence, that the words sime phis, sim mimos, shall be intended of a reasonable quantity, with reference to the extent of the grant (Day v. Fynn, Owen R. 133); and the Court of Appeals in Virginia, more than half a century ago, decided that more or less,” inserted in a deed, should be restricted to a reasonable or usual allowance for small errors in surveys, and for variations in instruments. (Quesnel v. Woodlief, 2 Hen. &. Mum. 173, note.) Whatever latitude of discrepancy those words may have been held to embrace in particular cases, the principle, that they shall not cover more than an inconsiderable deficiency, in reference to the alleged or supposed contents, has been sanctioned by numerous authorities, and cannot now be questioned; and the rational and just rule may be invoked for the protection of vendors as well as purchasers. Equity always relieves the former where the excess is . flagrant. (Sugden on Vendors, ch. 6, sec. 3.) There can be no doubt of the fact, as found by the judge, that the actual quantity of land in this case was substantially and essentially less than that which the plaintiff supposed he was purchasing. The materiality of the mistake, therefore, as a requisite ground for the judgment which he rendered, was fully established.

It remains, therefore, to determine whether, fraud being the only ground upon which relief was sought by the complaint, and that ground not having been sustained, it was within the authority of the court to adjudge that the plaintiff should be relieved from the contract, and the money paid by him be refunded. If the defendant had simply denied the fraud imputed to him, and driven the plaintiff to sustain that ground by proof, and the plaintiff had failed to do so, the proper disposition of the case would have been to dismiss the complaint; but, as «already shown, the defendant, instead of holding the plaintiff strictly to the issue of fraud, expanded the field of inquiry, by setting up his own ignorance, at the time of the purchase, of a discrepancy in quantity, which he could not deny, and which on its face was material, and by so doing he enlarged the area of jurisdiction, within which the merits of this case should be considered and decided upon.

With these elements of mutual mistake and materiality, and the contract being yet in fieri, it came strictly within the equitable powers of the court to rescind the purchase and to restore the parties to their original rights.

This view of the case is strengthened by high authority. On a bill to annul a contract for the sale of a large tract of land, and to recover back the portion of the purchase money which had been paid, on the ground that representations had been fraudulently made that the tract contained a much larger quantity of land than turned out to be true, it appearing from the answer and evidence that both parties had acted under a mistake in regard to that fact, which was held to be material, Judge Story disregarded the question of fraud as unnecessary and improper to be considered, and deemed it the duty of the court to decree, on the grounds of such mutual mistake and materiality, that the agreement should be rescinded and the parties reinstated in then* antecedent rights and interests. (Daniel v. Mitchell, 1 Story R. 172.)

Bosworth, J.

The statement, by the judge who tried this action, of the facts found by him, is not very precise. I think an ordinary man, of common understanding, on reading it, Would say the judge had found that the defendant untruly, but innocently, misrepresented the quantity sold, and that this was not only an operative, but was also an essential inducement to the contract. That the quantity was only about half of what it was represented to be, and, therefore, the plaintiff was equitably entitled to a rescission.

Assuming these to be the facts found, the judgment cannot be said to be erroneous, unless the cause of action stated in the complaint differs in its entire scope and meaning from that established by the facts found by the court (Code, §§ 171,176), or unless there is no evidence to support the facts as found, or unless the facts found are insufficient to constitute a cause of action.

Courts of equity have so long rescinded contracts, on account of their having been induced by a mutual mistake as to material facts, I do not think it will be seriously contended that no such relief can be properly granted, for that cause. (Champlin v. Levin, 18 Wend. 407.)

I do not think the judgment should be reversed, merely because the evidence in support of the facts as found is slight. There was some evidence to support it. The diagram exhibited had a memorandum on it, stating that the “ deed calls for 9 acres, less 1 acre and 6 perches, sold.” There was less than four acres and a-half, exclusive of that which had been sold. The defendant’s witness states there was conversation as to the quantity, and the “ defendant represented it just as the deed represented it.” The diagram neither states the length nor the course of the boundary lines.

I do not feel at liberty to hold that the facts found are so clearly contrary to evidence, that for that cause alone the judgment must be reversed.

I do not assent to the proposition that the whole right to relief is, by the complaint, based exclusively on the ground of the intentional fraud of the defendant. The pleadings are under the Code, and their forms and sufficiency are to be determined solely by the Code itself. (§ 140.)

The complaint states that the plaintiff was induced to enter into the contract by the defendant’s “ falsely, and as plaintiff believes, fraudulently representing,” &c.; and further charges, “that so the said defendant falsely, and, as he believes, fraudulently deceived and defrauded the plaintiff in the said sale,” &c.

Here “ falsely” is used in contrast with “ fraudulently,” and as synonymous with erroneously arid untruly. The allegation of falsely deceiving is only equivalent to saying, that the plaintiff credited and acted on this material, but untrue statement, and was deceived by it.

By alleging that the defendant made this statement falsely, and, as the plaintiff believes, fraudulently, the complaint charges, first, actual misrepresentation; and, second, a belief that it was fraudulently made. The defendant denies making any representation as to the quantity, and avers that he was ignorant of the quantity. He also denies making any fraudulent misrepresentation.

There were issues therefore—first, as to whether any actual misrepresentation was made; and, second, whether, if made, it was made with an actual intention to defraud.

Proof of actual misrepresentation of matters material, and operative inducements to the contract, by which the plaintiff was misled, entitled him to rescission. Enough was proved, regarding the facts found as being proved, to make it proper to grant the relief adjudged.

It is a case, therefore, in which the allegation constituting the cause of action was unproved, “ in some particular or particulars only,” but not “in its entire scope and meaning” (Code, § 171), and presented neither the case of a failure of proof, nor of a variance which the judge at the trial was at liberty to regard. (Code, §§ 169, 170, 467.)

As enough was alleged, and has been established, to constitute a good cause of action, independent of the allegation of an actual fraudulent intent, there is no ground for reversing the judgment except the solitary one, that the evidence given was insufficient to warrant the finding of an actual misrepresentation of the quantity on which the plaintiff relied, and by which he was misled. I do not understand that Mr. Justice Dube wculd reverse, solely on the ground that the facts established were found so clearly against evidence, that the judgment for that cause alone ought not to be permitted to stand. In this case the contract has not been consummated; no deed has been executed. The agreement is, as yet, executory. The case, therefore, does not fall within the rule which controlled the decision made in Fowre v. Martin (Court of Appeals, Oct., 1852). In the latter case, Gridley, J., says: “ It is not claimed that tie original agreement was procured by fraud, misrepresentation, or mistake.” A conveyance had been accepted, without any objection that it did not conform to the actual agreement and under-standing of the parties. The contract had been cmsummated.

In tin ease before us, it is alleged and proved that the agreement wa¡¡ procured by a misrepresentation of material matters, forming in essential inducement to the contract. It is a case of mutua, mistake, induced by untrue representations of the defendant If they were not innocently made by him, he committed an actual fraud. But though-made innocently, equity will not permit the defendant to hold the plaintiff to a contratt which he has by such means induced him to enter into, vhere the thing contracted for is so essentially different from wiat it was represented, and, by reason of such representation, vas believed to be. I think the judgment should be affirmed

Duer, J., dissented,

principally upon the ground that, in his judgmeit, the only issue made by the pleadings was, that of the frauc of the defendant, and that this having been found in his favoi, the court had no power to grant relief upon the ground <f mutual mistake.

He aim expressed great doubts whether, had the complaint been prcperly framed, the contract, upon the evidence, could be justlyrescinded. As the true boundaries had been shown to the plaintiff, it might very reasonably be held, that he took Upon himself the risk of these boundaries containing the number of acres that it was believed they included.

Judgment affirmed, with costs,  