McFerran v. Taylor

Implied vjarranlg.— Verdict. He who sells property on a description given by himself, is bound in equity to make good that description; and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance.1 Queere? If the mistake be of a matter deemed perfectly immaterial by both parties, at the time of the contract, and of a matter which would not have varied the bargain, if it had been known, and of which both parties were equally ignorant, whether a court of equity ought to interfere ? A finding by the jury, which contradicts a fact admitted by the pleadings, is to be disregarded.

Error to a decree of the District Court of the district of Kentucky, in chancery. McFerran, in his bill, alleged, that on the 19th of March 1784, the defendant, Taylor, for a valuable consideration, executed his bond to the complainant, for the conveyance of 200 acres of land, out of 1000 acres located by him on Hingston, or out of 5000 acres which Taylor then had for location. The condition of the bond was as follows: “that if the said Richard! Taylor, his heirs, &c., shall well and truly make, or cause to be made, to the-said Martin McFerran, his heirs or assigns, a good sufficient title in fee-simple to two hundred acres of land in the county of Kentucky, out of 100© acre tract, located by the said Richard Taylor on Hingston’s fork of Licking; or 200 acres out of 5000, which the said Taylor has now for location, provided he obtain the same, at such part or place thereof as the said McFerran shall choose, not to exceed more than twice the breadth in length thereof, so soon as the lands can, in any degree of safety, be surveyed; *then this obligation to be void, otherwise to remain in full force and vir- *- T/t ,e.” The bill further alleged, that on the 25th of September, in the same year, the defendant, Taylor, executed another bond to the complainant for 300 acres of land adjoining the former tract of 200 acres. That the said 5000 acres of land alluded to by the bonds, was granted to Taylor, for his military services, by a warrant numbered 1734, which issued for 6000 acres; but that Taylor did not inform the complainant that it contained more than 5000 acres. That 1000 acres of the 6000 had been locatecLon Paint Creek, and 2000 on Brush Creek, in the north-western territory, and 3000 on the Green River, in the district of Kentucky. That Taylor had not any lands on Hingston, so that the complainant could not make his choice there, where he averred the general quality of the land was equal to any in Kentucky, and was worth from $8 to $10 an acre. That Taylor has sold the 1000 acres on Paint Creek to the defendant, Massie, who, before he paid for the land, and obtained a title from Taylor, had notice of the complainant’s claim to 500 acres from Taylor, as before stated. That before the sale to Massie, Taylor had sold the 2000 acres on Brush Creek, to Abraham Buford, or to some one else, and in consequence thereof, assigned the certificate of survey to John Brown. That in 1796, the complainant applied to Taylor, to show him his lands, that he might make his choice, but Taylor neglected and refused to show them. That the complainant chooses to have the 500 acres laid off, and conveyed to him from the land on Paint Creek, and had given notice of his choice to Taylor, who refused to convey the same from out of that tract, and refused to accompany the complainant to have the same laid off; and that Massie also refused to convey. The bill concluded with a prayer, that the complainant might be permitted to make choice of 500 acres of land out of the 1000 acres on Paint ■Creek ; that the defendants might be compelled to convey the same ; and that the court would grant general relief, &c. -.¡■■nijni *The answer of the defendant, Taylor, admitted the bonds, and -* that the 500 acres were to be laid off in one tract. It alleged, that the consideration of the first bond was two horses, sold to him by the complainant, at the price of 401. Virginia currency for both ; and that the consideration of the other bond was another horse, valued at 48i. It referred to the entry for the 1000 acres upon the waters of Licking, dated June 15th, 1780, which was in these words : “ Colonel Richard Taylor enters one thousand acres on treasury-warrants, adjoining an entry of Major Thomp- ' son’s, on a buffalo road leading from Hingston’s fork to the sweet licks, beginning at his south-east corner, thence, north, along said Thompson’s line, 600 poles, thence, east, for quantity.” The answer then averred, that the mentioning of Hingston’s fork of Licking in the bond, was not a description of locality, but of tract ; and that the mentioning Hingston was r o greater recommendation of the land than if another fork of Licking had been named ; because both parties were unacquainted with it, and Taylor had understood that his said entry was on Hingston. That the provision m the bond for a choice out of 5000 acres was an alternative ; and it was not intended, that the complainant should have his choice out of the 6000 acre warrant ; and it was intended and understood by both parties, that Taylor shoi A hold 1000 acres thereof, unincumbered, and not liable to the complaina: t’c choice. It averred further, that these 1000 acres were located on the shares on Paint Creek ; that Taylor held part, and Kenton and Helm another part, as locators ; that he sold his part to Massie, but he did not recollect the quantity. Of the remaining 6000 acres, he exchanged 2000 with Colonel Abraham Buford, for two entries of 1000 acres each, because there was a greater probability of getting good land upon small entries than upon large. That these 2000 acres were located on the south side of Green river. That the other lot of 2000 acres, part of the 5000, was located on the north fork of Paint Creek; but understanding the land was not good, he had 1500 acres withdrawn, and finally located on some of the waters of Paint Creek, as he was informed ; but he was so much unacquaintéd with that country, that he could not point it out particularly. The remaining 1000 acres were located and patented south of Green river. That he had offered the complainanta choice of any of those lands, except the 1000 acres held *by pova Massie, Kenton and Helm, which he had refused. That the 500 acres on the north fork of Paint Creek were inferior to the other lands, as he had been informed and believed ; and the complainant having positively refused them, Taylor had sold them. But the 1500 acres on the waters of Paint Creek, which were originally part of the 2000 acre lot, and the three tracts of 1000 acres each, south of Green River, were yet held by him ready for the choice of the complainant. That Taylor informed the complainant, before the commencement of this suit, fully, of the exchange with Buford, and had been always ready and willing to let him have his 500 acres as aforesaid. That Taylor informed the complainant of his said military warrant; and that it was for 6000 acres ; and that he reserved 1000 acres thereof, which it was then possible he might want to live on, and that the complainant’s right of choice was only to extend to the remaining 5000 acres. That since Taylor discovered that the first-mentioned 1000 acres laid on Slate Creek, a branch of Licking, and not on Hingston, a branch of Licking, he informed the complainant thereof, and also that he had no lands on Hingston. The answer of Massie denied, that previous to his paying the consideration of the land to Taylor, and the issuing of the patent, he had any notice that the complainant had any claim to that land, and averred, that he was a bond fide purchaser, for a valuable consideration, without notice. The jury (who, by the practice of Kentucky, are called to ascertain facts in chancery suits) found the following facts : 1. That the defendant executed the bonds. 2. That at that time, he had no lands on Hingston’s fork of Licking. 3. That on the 29th of August 1795, he assigned to John Brown, the plot and certificate of survey, &c. (the 2000 acres before mentioned), which survey was made by virtue of a military warrant, No. 1734. *4. That on the 31st of July 1797, he assigned to Massie, &c., pun** the 1000 acres before mentioned, being a survey of part of the same *• warrant. 5. That the complainant demanded of Taylor 500 acres, in virtue of the said bonds, before the commencement of this suit; but it did not appear that any lands had been conveyed in compliance with that demand; neither did it appear that any particular piece of land was pointed out by the complainant, when the said demand was made, except that he had made his election to have 500 acres out of the survey assigned to Massie, and gave notice thereof to Taylor, who refused to convey it. 6. That 500 acres might be laid off in that survey, worth five dollars an acre, in the form called for in the bonds. Y. That the 5000 acres mentioned in the bonds were part of the warrant No. 1Y34, for 6000 acres, granted to Taylor for his own services. 8. That Taylor had the entry of 1000 acres, of June 15th, 1Y80. 9. That when the bonds were executed, Taylor had a military warrant for 6000 acres, 1000 whereof were entered on Paint Creek, in partnership with the locators, and since assigned to Massie ; 2000 were exchanged with Abraham Buford, for other 2000 acres of military warrants, in separate entries of 1000 each, because Taylor deemed it more probable that he should get good land on small entries than on large ones. 10. That 1000 acres of the said 5000 were entered on the south side of Green River. 11. That the remainder of the 5000 acres is located on Paint Creel?, or its waters. 12. That Taylor was willing that the complainant should make his choice out of any of the three tracts of 1000 acres each, south of Green River, or out of the 1000 acres on the waters of Licking, or out of the 500 acres, or the 1500 acres, on the waters of Paint Creek. *2Y5l *1S‘ ^at average price of lands on Hingston, was three and -1 a half dollars per acre, and on Slate, two dollars per acre. 14. The 1000 acres adjoining Thompson, were worth two dollars per acre. 15. The land transferred from Taylor to Buford, was worth one dollar and fifty cents per acre. 16. The land transferred by Buford to Taylor, was worth two dollars per acre. The decree of the district court, upon the bill, answers, and facts found, was, in substance : That the complainant should, on or before the 1st of September then next, make choice of his 500 acres out of the following tracts of land, to wit, 1000 acres adjoining Major Thompson’s entry, on a buffalo road leading from Hingston’s Fork to the Sweet Licks ; the 2000 acres transferred by Buford to Taylor; the 1000 acres entered in the name of Taylor on Lost Creek, a branch of the Ohio ; the 500 or the 1500 on Paint Creek; and give notice to Taylor of such choice, within one month after it should be made. Commissioners were appointed to lay off and survey the said 500 acres for the complainant; and it was further decreed, that Taylor should, before the 1st of November then next, convey the said 500 acres to the complainant ; but if the complainant should not make his choice, and give notice as aforesaid, then Taylor should, on or before the 25th of the then next November, convey to the complainant 500 acres out of one of the said tracts, in a reasonable form, according to the condition of the bonds ; and that Taylor should pay the costs of the suit. Upon this decree, the complainant sued out his writ of error.