Mendenhall v. Steckel

Brent, J., delivered the opinion of the Court. The object of the bill in this case is to foreclose a mortgage for one thousand dollars, the balance of the purchase money for the farm, named in the mortgage, which had ⁴⁶⁴ been sold to Steckel, one of the appellees, and for which a deed had been executed to him. The answer of Steckel sets up, as matter of defence, that there is a deficiency in the number of acres, called for in the deed, to a larger amount in value than the sum for which the mortgage was given ; that the mortgage is therefore without consideration, and ought not to be enforced. To this answer the mortgagee, Mrs. Mendenhall, filed a replication, alleging that by a mistake of the conveyancer in preparing the deed, the words more or less were omitted, and not inserted as they should have been, after the number of acres therein given, and that the deed thus fails to express the true agreement of the parties.

Upon this replication issue was joined. The-following agreement was then entered into between the parties, and filed in the case. “It is agreed in this case for the complainant and for all the defendants, that no objection shall he taken to any defects of pleading, and that either party shall have the right to offer in evidence, subject to exceptions for all other causes, any evidence which would be material and proper to support the allegations of either party under any state of pleading.” This agreement disposes of the necessity of determining whether the technical objections, presented in the brief for the appellant, are well taken, and very clearly submits for decision in the case, first, whether from the face of the deed and the proof of the actual number of acres contained in the farm sold, the mortgagor is entitled to an abatement for a deficiency ; and secondly, whether there is proof to establish a mistake in the deed as is alleged by the appellant in her replication. The deed specifies the number of acres to be one hundred and eighty-seven. The survey of Mr. McCauley, the correctness of which is not disputed, shows that the tract in reality contains but one hundred and fifty-seven ⁴⁶⁵ acres and sixteen perches, — a deficiency of nearly thirty acres.

Upon this proof the vendee, Steckel, is clearly entitled to an abatement of the purchase money for the deficiency. The case is within the decision in Marbury vs. Stonestreet, 1 Md., 152 . It is there said, “ where land is sold in gross, for a sum certain, upon a statement of the number of acres, quantity must be regarded as a material consideration with the vendee.” In that case, as in this, a specified number of acres was mentioned without any qualification, “ such as more or less, by estimation, &c., to intimate that a positive declaration as to quantity was not intended,” and the vendee was allowed for the deficiency. The appellant, seeing this difficulty, asks that the deed executed by her, may be reformed, by adding after the number of acres the qualifying expression “ more or less,” upon the ground that these words were omitted through the mistake of the scrivener, and the deed, as it now stands, does not express the true agreement of