
    [No. 22114.
    Department Two.
    June 4, 1930.]
    John Halvorson, Appellant, v. Mary Stecher, Respondent.
      
    
    
      M. H. Forde, for appellant.
    
      A. E. Dailey, for respondent.
    
      
      Reported in 288 Pac. 925.
    
   Fullerton, J.

On 'April 6, 1921, the respondent, Stecher, entered into a contract with the appellant, Halvorson, whereby the respondent agreed to sell and ,the appellant agreed to buy two certain tracts of land described by metes and bounds. The description of the first of the tracts seems to have been taken from a deed through which the respondent acquired the property. Neither of the parties then knew the precise boundaries of the tract, and it was questioned by both of the parties whether the tract included a house located on the southwest corner of the tract. To meet this possibility, there was added to the tract first described a second tract, described as “a strip of land 10 feet wide off the north side of the land adjoining the above described tract on the south, said 10 foot strip extending from the west line of said land a distance of 150 feet east;” the latter tract being taken from land owned by the respondent, which was acquired through another source of title.

Some two years after the contract was entered into, the respondent caused the tract to be surveyed. It was then discovered that the first of the tracts included lands which the respondent did not own, in that it included a’ strip northerly of her northmost boundary. This fact was made known to the appellant; he, however, continued to make the payments called for in his contract of purchase until the last one became due, at which time he began the present action to rescind the contract and recover the purchase money paid thereon.

The trial court, on a trial of the action to rescind, found that the respondent had made no misrepresentation as to the location of the tract or as to its boundaries; found that there was an error in the- description of the beginning point of the tract, and, with this corrected, the appellant would obtain the land the respondent by tbe contract agreed to convey to him. It thereupon entered a decree correcting tbe description, and requiring tbe respondent, upon tbe payment of tbe remainder of tbe purchase price then due, to execute and deliver to tbe appellant a warranty deed in accordance with tbe corrected description; denying to either party any further relief.

Tbe appellant has assigned a number of errors for reversal, which bis learned counsel argues at some length in bis brief, but tbe questions depend for their solution on tbe view that is taken of tbe facts of the case, and we cannot conclude that the trial court determined tbe facts erroneously. If it be true that tbe appellant did not obtain all of tbe land be thought he was purchasing, tbe fault lies with bim rather than with tbe respondent. While tbe appellant testified that tbe respondent, while tbe negotiations for tbe purchase' were under way, pointed out to bim tbe boundaries of tbe tract, particularly tbe southern boundary, she denies so doing, and testifies that she knew nothing about tbe precise locations of tbe boundaries, and we thinktbe evidence rather supports her version than bis. We have already noticed tbe fact that an additional tract was included to meet tbe possible condition that tbe bouse might not be upon tbe first described tract. In addition to this, tbe respondent, prior to tbe execution of tbe contract, offered to join with bim in having tbe tract surveyed, but be preferred taking it under tbe description given, rather than share in tbe expense of a survey. Nor did tbe respondent conceal from him tbe results of tbe survey which she caused to be made for her own purposes. On tbe contrary, be was promptly informed of tbe facts shown thereby.

Tbe corrected description moves tbe south fine still farther south than did tbe description contained in tbe contract, and it is possible that tbe tract, even as now described, does not now include the whole of the house. But we do not find that, because of this, the equities of the situation, as the appellant so strenuously argues, are with the appellant. He obtains an area equal to that described in the contract of purchase, in land of equal value, and of land which he now contends he thought he was purchasing. Nor has the respondent refused to deal equitably in correcting the situation. She offered, prior to the trial, and at the trial, to deed to him sufficient land from her remaining holdings to include the house at the same rate per acre which the appellant agreed to pay for the land described in the contract. She did decline to deed it without consideration, but we cannot conceive of any principle of equity which requires her so to do.

There are certain other matters which the appellant urges make the contract inequitable. These we shall not specially notice. It is sufficient to say of them that they relate to matters not covered by the terms of the contract, and that, since no deceit or fraud was practiced upon him by which he was induced to enter into the contract, he must abide by it according to its terms.

The decree of the trial court is affirmed.

Mitchell, O. J., Main, Tolman, and Holcomb, JJ., concur.  