
    Abraham Shroll vs. Joseph Klinker.
    If a vendor sell and convey land by a correct description, but, by mutual mistake of the parties, without fraud on the part of the vendor, the vendee enters upon a wrong tract, and makes improvements, he cannot sustain a bill in Chancery to recover the Yalue of his improvements.
    This is a Bill in Chancery, from Craweord County, submitted upon bill, answer, replication and testimony.
    The bill charges, in substance, that the complainant, being desirous of purchasing a certain tract of ground, situated near Osceola, in Crawford county, known as the west half of the southwest quarter of section 25, township 2, south, of range 15, in the district of lands then subject to sale at Marion, Ohio, containing 80 acres, with a deadening or partial clearing upon 25 acres of the same, represented as belonging to one Joseph Klinker, entered into a negotiation with him for that, purpose-;"that-said Klinker represen ted-himself as the owner of the land • upon which the 'deadening; was.;' that complainant was ignorant of the description of said,lot; that, relying upon, the , representations’of Klinker, complainant purchased,-for the sum of $5.50, '$50 to-'be paid'in hánd, and $250 when'respondent ' should cóme for the samei to-complainant’s house, in Crawford ; county, and-, thp. residue-in -.the ,-'spring following ] ;that Klinker; • entered iptó;a' written' agreement to convey said land, on >re-»'•chiving -the- payment ¡of. the purchase ipo'néy,' by- deed, wjtK the ' usual covenants of warranty; that'-the'land described ip this . -Written. agreement, .was The east half of.the southwest quarter of the section aforesaid '; that complainant entered;upon'and . took possession of.-the lot óf ■ land-’upon which..the d.eadehing had Been madej supposing if tó be-the sameihfe.had'purchasedj-. •/ and 'made'improvements — cleared, fenced, and built a"house 'and'Barh'; — ,'fp;tKe 'valúe;: in'all, Of ' pVei- 'one thousand dollars'; • •that 'Klinkér yisi-te'd 'the complainant whilst residing upon said lot, to receive-his purchase-money,->nd assured-him it,was the lot he, sold;, that one" Adam Bear, who had made the deade'n- ’ ing fqr Klinker, pointed out thé land to complainant'; that Klinker.'.and' wife, subsequently, by dééd, conveyed 'said'.east half to complainant,;.on the 28lh of March, 1839; that said east half was' wholly.'wild .and unimproved, and. the' .deadening was. • upon the west half; that ,the, complainant'called upon. Klinker to convey said.west half, which he refused;-.as having no title. ' The prayer of the bill is for a c'onveyance of said Vest half; ón which the. improvements áre made,, or compensation for the value .of the improvements.. , v- , < ■ ■
    
    In Bank.
    Dec. Term, 1846
    The answer denies, all fraud; states' that. respondent■ had never- seen the land when he purchased ; that hé took his certificaté of purchase, given -at .the’ land .office,' went tó see his land; .and was referred to. one Adam.Bear, as a suitable person to point-it opt; that Bear did .so —or pretended.'to'; thinks he showed him Kis certificate of purchase, and’engaged him to do some clearing;'that ;he had no other .knowledge of the location of the land; that he was not aware that the deadening was not made on the east half, and denies all intentional misrepresentations ; admits that he informed complainant that he had employed Bear to make an improvement on the east half; insists that it was complainant’s own fault he went upon the wrong lot; and says that, when he called for the money, he supposed, of course, that complainant had gone into possession of the right lot.
    The proof shows, that complainant’s improvements were made as claimed in the bill; that Bear pointed out to Klinker the land; that hé was often employed for this purpose, and pretended to understand the location of lands; that the complainant said he had made a mistake and got on the wrong land; that the east half was in a perfectly wild state — was of as much value as the west half, with the improvement upon it.
    
      John Scott, for Complainant.
    The case was submitted for complainant without argument.
    
      •Powell Buck, for Respondent, argued that:
    First: The statute of frauds affects this case.
    Second: The maxim, caviat emptor, is here applicable. 1 ' Sug. on Vend. 536 and note 1; Ibid. 2, secs. 3, 4, 5 ; i Story’s Eq. 161, sec. 148 ; Ibid. 159, sec. 146; 1 Sug. on Vend. 537, sec. 6 ; 1 Johns. Ch. Rep. 577, sec. 2; Caines’ Rep. 191, sec. 2.
    Third: Where the means of information are open to both parties, and each is presumed to exercise his own diligence, there is no relief; 1 Story’s Eq. 161, sec. 149; Ibid. 163, sec. 150. This rule is applicable to this case. 4 Eq. Dig. 706, .sec. 12.
    Fourth: “ Where each party is equally innocent, and there ‘ is no concealment of facts,” &c., the mistake, whether material or immaterial, is no foundation for equitable interference. “ It is strictly damnum obsque injuria.” 1 Story’s Eq. 164, sec. 151; Ibid. 160, sec. 147.
    
      Fifth: The fact about which there is mistake, must be material. 1 Story’s Eq. 156, sec. 147 ; Ibid. 158.
    Sixth: “ Where there is a mistake between the parties as to ‘ what was sold, the court will not interfere in favor of either ‘party.” 1 Sug. on Vend. 342.sec. 41.
    Seventh: “ A vendor, selling in good faith, is not responsible for the goodness of his title beyond the extent of the ‘ covenants in his deed5 Johns. Ch. Rep.-79. The vendee must' seek his remedy at law on the covenants, if there are any, if not, he has no remedy. 2 Johns. Ch. Rep. 519; 1 Ibid. 213; 8 Amer. C. L. 281, sec. 3.
    Eighth: Equity will not interfere where the damages are trifling. 12 Ohio Rep. 387.
   Read, J.

Taking this whole case together, it shows a mistake, for which one party is as much to blame as the other. Klinker sold the land by a right description, and if the complainant had used a little diligence he could have found the right lot. The deadening referred to by Klinker, was a matter of mistake for which Klinker was not responsible. He was himself misled as to that. He did not intend to sell or describe other land than he himself had purchased at the land office. The complainant knew as much about the land as Klinker, and probably more. Now, to hold that Klinker should lose the whole value of these improvements, would be as hard as to compel Shroll to lose , it. Both parties stand upon an equal footing — both equally innocent. No fraud, no design to cheat or overreach. Now which shall lose ? For here we cannot apportion or divide out a loss resulting from a common mistake, as may be done by the civil law. One or the other must lose the whole. We admit it to be a hard case; but we cannot discover any ground of relief. The land sold was rightly described, and complainant should have been more diligent in hunting it up.

Bill Dismissed with Costs.  