Kemp v. Weber

Marbury, J., delivered the opinion of the Court. Appellants filed their bill of complaint for the return of all payments made by them to the appellee under a contract of purchase of certain land in Allegany County, dated April 21, 1932, and for the money, labor and improvements placed and expended upon the land, and for profits they could and should have made. The agreement describes the property by metes and bounds. The purchase price is §3,800, which is to be paid at the ³⁶⁴ rate of $25 a month for one year and $35 a month thereafter until the whole, with interest at 6 per cent., is paid.

The basis of the complaint is that the purchasers were told that the tract, when they agreed to buy it, contained forty-four and twenty-seven one-hundredths acres, and that in fact what they received was only twenty-four acres. The testimony shows that a Mr. White, who was acting for the appellee at the time the contract was made, saw the appellants looking at the property. He showed them the lines, gave them a price, and told them that the tract contained forty-four acres. The contract did not state the acreage, and the appellants did not have the property surveyed.

In 1934, some question arose whether an island in the Potomac River belonged to this property or to a Dr. Clymer. Some proceeding was filed in the name of the appellants against Dr. Glymer, although the testimony shows that the appellee arranged for the case. This action was apparently brought about by the attempt of the appellants to cultivate the island. After & hearing, the Circuit Court for Allegany County determined that the appellants were not entitled to a restraining order against Dr. Clymer, and the preliminary order was dissolved.

No further proceedings were had in this case, and from that time on, Dr. Clymer has possession of the island. It appears that the first definite information the appellants had that the property did not contain forty-four acres was when some soil conservation men checked up the lines. No survey was made at that time, but the acreage was then estimated. This was in 1935 or 1936.

About that time the interest on the unpaid purchase price was reduced by the appellee from 6 to 5 per cent., although the record does not show whether or not that had anything to do with the shrinking acreage. From that time on, however, the appellants continued to live on the property. They fixed some steps and a door, and had the house painted in 1937; put in a furnace in 1938; put down a concrete sidewalk in 1939; sold six acres ³⁶⁵ of the land to a Mr. Dawson in 1940, the appellee apparently executing the deed and the purchase price being applied on account of the contract; similarly sold another tract of the land with a house on it to a Mr. Smith in 1940, this purchase price being also applied to the contract; built a new house on the remaining part of the land in 1940, and are now living in the last-mentioned dwelling. The statement of the account under the agreement shows payments made in February, June, August and October, 1937, and in March, 1939.

In May, 1940, there was a credit of $100 from the sale to Smith, and on September 26, 1940, there were two credits, one of $600 from the sale to Dawson, and one of $1,900, the balance from the sale to Smith. The appellee contends that whatever may have been the ideas of the parties as to the amount of acreage, neverthless, this was a sale in gross and not by the acre, and that, therefore, the appellants cannot recover. He also contends that inasmuch as the appellants are in default under the terms of their agreement, they cannot maintain this suit. A third ground of objection is that after discovering the supposed deficit in acreage, the appellants continued to occupy and use the land.

Having made their election, at a time when they knew or had reason to know that the amount of land