No. 88-30 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

DAVID TURNER and PATRICIA M. 

TURNER, 

Plaintiffs and Appellants, 

-vsSTEVE W. FERRIN and DEBRA A. 

FERRIN , Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. B. Wheatcroft, Miles City, Montana 

For Respondent: 

Bruce Brown; Brown & Huss, Miles City, Montana 

Submitted on Briefs: March 31, 1988 

Decided: May 24, 1988 

Filed : YAY 2 4 1988' 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

This is an appeal from a judgment and final order 

denying plaintiffs/appellants David and Patricia Turners' 

(Turners) motion to amend findings of fact and conclusions of 

law issued by the District Court of the Sixteenth Judicial 

District Court, Custer County, Montana. Following a bench 

trial, the court disallowed rescission of a contract for deed 

entered into by the Turners with defendants/respondents Steve 

and Debra Ferrin (Ferrins). We affirm. 

Appellants raise two issues for our review: 

1. Whether the District Court erred in failing to find 

the Turners were entitled to rescission? 

2. Whether the court erred by declaring a forfeiture 

when Ferrins could not provide title? 

In the judgment, issued on October 21, 1987, the 

District Court found that the sale of property involved in 

this case was a sale in gross with an approximate six percent 

acreage variation that was not a material nor substantial 

lack of consideration that would entitle the Turners to 

rescission. The court found the Turners guilty of laches, 

and that the Ferrins had given due notice of default that was 

not cured. Finally, the court ordered the Turners to cure 

the default within thirty days of entry of the judgment at 

which time the Ferrins were to deliver a deed to the Turners 

and that failure would result in termination of the contract 

with the Ferrins entitled to immediate possession of the 

property. 

The Turners filed consolidated post-trial motions 

moving for amendment of the findings of fact, conclusions of 

law and judgment or in the alternative, a new trial on 
October 30, 1987. It is from this final order denying these 

motions and the judgment that the Turners appeal. 

Steve and Debra Ferrin owned an irrigated ranch near 

Miles City, Montana. The size of the parcel is in dispute, 

either approximately 96 acres or, as the Turners claim, as 

small as 90 acres. A buy-sell agreement, prepared by Steve 

Ferrin, who is also a real estate broker, was signed by the 

Turners on September 13, 1982. The total purchase price was 

$230,000 with a $100,000 down payment paid previous to the 

closing on October 12, 1982. A contract for deed was 

executed by all parties. The Turners were represented by 

counsel. Attached to the contract for deed as exhibit "A" 

was a description of the real property as follows: 

Township 8 North, Range 48 East, M.P.M. 

Section 5: 

N$SW$ and NWiSEi, LESS that portion 

described as Tract 3, containing 

19.26 acres, more or less, in 

accordance with the Certificate of 

Survey filed for record as Document 

No. 60202 in Envelope No. 191 of 

the Plat Cabinet, records of Custer 

County, Montana, and LESS that 

portion of the NW$SWi which lies 

north and west of the right-of-way 

of the Burlington Northern Railroad 

(formerly Northern Pacific Railroad 

Company) . 

Section 6: 

That portion of the NEiSEi which 

lies south and east of the rightof-way of the Burlington Northern 

Railroad (formerly the Northern 

Pacific Railroad Company). 

Containing 96.73 acres, more or 

less. 

This description was exactly the same as that contained in 

the buy-sell agreement. Paragraph nine of the contract for 
deed referred to title insurance and stated the property was 

subject to easements and rights of way of record and other 

visible easements. However, the warranty deed placed in 

escrow from the Ferrins to the Turners contained no 

reservations or exceptions for any servitudes. The warranty 

deed did contain the exact description of the property as in 

the contract for deed and the buy-sell agreement. 

The Turners moved onto the property in October of 1982 

and Patricia Turner testified that they thereafter spent 

$26,815.69 on improvements on the property. Both annual 

payments of $16,133.97 were timely made in 1983 and 1984, 

however, the 1985 payment was not made. The Turners and 

Ferrins entered into an accommodation agreement on December 

24, 1985 extending the time to make the annual payment but 

the default was not cured. 

Prior to the scheduled date of forfeiture, the Turners 

filed an action for declaratory judgment attempting to have 

the contract declared a mortgage thereby entitling them to a 

right of redemption and occupancy. The Ferrins were granted 

summary judgment on this issue. The Turners then filed for 

relief under Chapter 11 in Bankruptcy Court. The Turners 

pursued rescission of the contract in Bankruptcy Court but 

the cause was remanded to the Montana State District Court 

because of mandatory abstention under Section 28 U.S.C. 

1334 (c) (2) . An amended complaint was filed March 19, 1987 in which 

it was alleged for the first time that an acreage shortfall 

was present in the sale of the property. The Turners 

empl-oyed a survey company to survey the property and the 

company's report disclosed that less than 96.73 acres 

existed. The amended complaint alleged that no exceptions 

were made in the warranty deed for a right of way. It was 

alleged that a portion of the property actually contained a 
right of way for a state highway and this easement was "on 

file and of record." The complaint also alleged that due to 

the fact the premises described in the warranty deed did not 

describe the property as "an aliquot part as defined by the 

subdivision laws of the State of Montana and is otherwise not 

suldiect to a certificate of survey" the deed was "ineligible 

for filing for record if the warranty deed were delivered to 

plaintiffs." 

A bench trial was held September 18, 1987 and both 

parties presented testimony and exhibits. Although the 

Turners presented the survey they had recorded, they did not 

call the surveyors themselves. The Ferrins also presented 

two unofficial surveys that were not recorded and did not 

call a surveyor. The Turners' survey shows the tract 

contained 90.73 acres. This survey gave the recorded right 

of way for U.S. Highway 10 as a boundary rather than the 

Burlington Northern Railroad right of way stated in the 

description. 

The Ferrins' exhibits were also admitted into evidence. 

These exhibits show, and Steve Ferrin testified to, the 

possible mistake that occurred in this case. The Ferrins' 

exhibit number two shows the property involved as an 

undivided 115.99 acre tract, only a portion of which was 

subject to the contract for deed. The Ferrins ' exhibit 

number one shows tract three as a 19.26 acre plot that had 

been sold earlier by the Ferrins. The remainder of the 

property, 115.99 minus the 19.26 acres, is the unit that was 

sold to the Turners. It was in this manner that the figure, 

96.73 acres, was determined. 

The District Court adopted the Ferrins' proposed 

findings of fact and conclusions of law. The court stated 

that the sale was one "in gross" because the contract 

provided for the sale of 96.73 acres "more or less" and the 
six percent acreage variation was not material. Further, the 

court concluded, the Turners did not prove "by a 

preponderance of the evidence that there was in fact any 

acreage discrepancy." 

This Court's standard of review of a lower court's 

findings of fact is whether the findings are supported by 

substantial evidence. Where conflicting evidence is 

presented, the trial court will not be overturned unless 

there is a clear preponderance of the evidence against the 

findings. Taylor et al. v. Cannaday (Mont. 1988) , 749 P.2d 

63, 66, 45 St.Rep. 102, 105. We have held numerous times 

that a trial court's verbatim adoption of all proposed 

findings and conclusions is acceptable if they are 

comprehensive and detailed, are supported by the evidence 

before the court, and are not clearly erroneous. Olsen v. 

McQueary (Mont. 1984), 687 P.2d 712, 716, 41 St.Rep. 1669; 

R.L.S. v. Barkhoff (Mont. 1983), 674 P.2d 1082, 1085, 40 

St.Rep. 1982. 

The Turners' argument that the District Court erred is 

based on two theories. First, that the presence of the 

easement not referred to in the warranty deed entitles them 

to the equitable remedy of rescission of the contract for 

deed and return of all the money they have paid. Secondly, 

the Turners contend forteiture was not properly granted and 

they are entitled to rescission because the title to be 

conveyed by the Ferrins was unmerchantable as it was 

unrecordable. 

Initially, we note that this sale indeed seems to be 

for a "sale in gross." The Ferrins appropriately point out 

that this Court has stated in Hardin v. Hill (1967), 149 

Mont. 68, 74, 423 P.2d 309, 312, that "[glenerally when land 

is sold in gross, a variation in acreage from what the 

parties had contemplated is not grounds for rescission or 
other relief." There was sufficient evidence to support the 

finding of the District Court that the property was a sale in 

gross. However, not only does this rule require 

determination of whether the property in question is sold in 

gross, where the relief requested is equitable in nature as 

is rescission, we should also consider whether the acreaqe 

shortfall is material. 

In Parcel v. Myers (Mont. 1985), 697 P.2d 92, 93, 42 

St.Rep. 352, the words "in gross" were not actually used in 

the sale document but we held the district court properly 

found a bulk real estate transaction occurred and the 

property was sold "in gross." The purchaser in Parcel, 

"looked at the property at least three (3) times;" walked the 

property boundary which was fenced on its borders; and was 

told "you are looking at what you get." No conversation 

about price per acre occurred and negotiations centralized 

around the total purchase price and buildings. Here, the 

Ferrins fixed a purchase price of $240,000 and the Turners 

bargained for and received a unit price of $230,000. At 

trial, no evidence was ever presented that a per acre price 

was negotiated. Most importantly, David Turner admitted that 

he inspected the premises at least three times and that he 

was shown the boundaries. 

The Ferrins' counsel has directed the Court to an 

annotation in 1 A.L.R.2d 9 dealing with relief to be granted 

when there is a mistake in the quantity of land sold. This 

annotation suggests a number of factors to be used to 

determine whether a sale is "in gross" or by the acre. The 

importance of making this determination is that the general 

rule calls for refusal of relief, in the absence of fraud, 

where the sale is in gross. 1 A.L.R.2d at 19. 

The annotation suggests a sale in gross is favored 

where the statement of price is a lump sum as in this case, 
rather than a statement of price as a specified rate per 

acre. 1 A.L.R.2d at 28-38. 

Some courts even go so far as to say that 

the presence of the words "more or less" 

makes a prima facie showing or raises the 

presumption that the sale is one in 

gross. 

The reason for this tendency is very easy 

to detect. The use of the words "more or 

less" excludes the assumption of an exact 

number of acres and makes it clear that 

the precise dimensions of the property 

are not of the essence of the contract, 

the parties either not knowing themselves 

the exact number of acres in the land, or 

purposely not intending to state it. 

1 A.L.R.2d at 47-48. Finally, and this is applicable to the 

case at bar due to the wording of the description, use of the 

term "more or less" tends to show the sale is "in gross." 

Although we do not hold that the use of the language 

"more or less" alone creates a "sale in gross," we do hold 

that it is sufficient, combined with the observation of the 

property by the Turners, the sale price as a negotiated lump 

sum, and the lack of a statement of price per acre, to create 

a "sale in gross." 

We next look to determine whether the alleged variation 

of acreage in this case was sufficiently material or 

substantial to hold that the District Court erred in denying 

rescission. Under $ 28-2-1711, MCA, rescission may occur 

only in certain circumstances: 

A party to a contract may rescind the 

same in the following cases only: 

(I) if the consent of the party 

rescinding or of any party jointly 

contracting with him was given by mistake 

or obtained through duress, menace, 

fraud, or undue influence exercised by or 

with the connivance of the party as to 
whom he rescinds or of any other party to 

the contract jointly interested with such 

party; 

(2) if, through the fault of the party 

as to whom he rescinds, the consideration 

of his obligation fails in whole or in 

part . . . 

Section 28-2-1711, MCA. 

In this instance, the District Court stated in its 

order that there was not a "material or substantial lack of 

consideration by the [Ferrins] . " No fraud, duress, menace, 

or undue influence was alleged or proven by the Turners. In 

Carey v. Wallner (Mont. 1986), 725 P.2d 557, 44 St.Rep. 1778, 

we discussed the grounds for rescission under this statute. 

As in Carev. the resolution of this issue turns on whether 

there was a mistake and/or failure of consideration. 

Consideration is defined as: 

[alny benefit conferred or agreed to be 

conferred upon the promisor by any other 

person, to which the promisor is not 

lawfully entitled, or any prejudice 

suffered or agreed to be suffered by such 

person, other than such as he is at the 

time of consent lawfully bound to suffer, 

as an inducement to the promisor is a 

good consideration for a promise. 

Section 28-2-801, MCA. Here, the Turners received the 

property. There was never any statement that they needed 

exactly 96.73 acres or that this was the most important 

object, the essence, of the sale. At any rate, the District 

Court properly determined there was no lack of consideration. 

In Carey, we held that rescission of the contract was 

proper because the Careys had purchased the property with the 

express intention of operating an adult foster care home. 

Upon further investigation, it was discovered that the area 

in which the property was located was zoned such that a 
foster home would violate the zoning ordinances. Therefore, 

we stated the Careys did not receive what they bargained for. 

The Turners received what they bargained for, 96.73 acres 

more or less. It is important to note that this property was 

both irrigated and dry land and the acreage discrepancy could 

have been a mistake due to the differences in acreage stated 

on surveys Steve Ferrin had and the survey done for Dave 

Turner. The Turners' survey, although recorded, is only 

important if he could have proved the mistake was material. 

We stated in Carey, that rescission of the contract was 

proper because of material mistake. The Court considered 

§ 28-2-409, MCA, which states: 

[mlistake of fact is a mistake not caused 

by the neglect of a legal duty on the 

part of the person making the mistake and 

consisting in: 

(2) belief in the present existence of a 

thing material to the contract which does 

not exist or in the past existence of 

such a thing which has not existed. 

We went on to state: 

A mistake is an unintentional act or 

omission arising from ignorance, 

surprise, or misplaced confidence. 

(Citation omitted.) The mistake -- must be 

material, or, in other words, so 

substantial and fundamental -- as - to defeat 

the object - of the parties. (Emphasis 

added. ) 

Carey, 725 P.2d at 560-561. 

In this case, assuming the alleged discrepancy exists, 

the missing acreage was approximately six percent of the 

total sale as the District Court noted. Equity will provide 

a remedy when by mutual mistake the land contains materially 

more or less acreage than the parties believed. A slight 
disparity will justify equitable relief if the sale is by the 

acre, but, if the sale is in gross a great disparity must 

exist to authorize relief. Steward v. Jones (Tex.Ct.App. 

1982), 633 S.W.2d 544, 546. In Steward, the court granted 

rescission of the contract when the sellers discovered that 

the property they sold contained forty-eight percent more 

property than what they believed. 

Ordinarily, when a sale of land is in gross, 

deficiencies of ten to twenty percent and even more than 

thirty percent have not been considered sufficiently material 

to entitle a buyer to relief. Seyden v. made (Nev. 1972) I 

494 P.2d 1281, 1283, citing 1 A.L.R.2d 9. The annotation 

states that rescission is granted only where the acreage 

deficiency is material: 

In a number of jurisdictions the general 

rule appears to be that equity will 

rescind a contract for the sale of land 

in gross because of a mutual mistake of 

the parties as to the quantity of the 

land, where the deficiency is a material 

one, even if the statement as to area is 

followed by the term "more or less." 

Generally, such material deficiency has 

been said to exist only where the 

discrepancy closely approached, or 

exceeded, 50 percent, though this rule is 

not uniform. 

In this case, we find that the District Court did not 

err in denying the Turners a rescission on grounds there was 

not a material or substantial lack of consideration. 

Further, it is clear that the Turners were put on 

notice to look for easements of record and visible easements 

by paragraph nine of the contract for deed. The agreed facts 

in the pretrial order state that the right of way for U.S. 

Highway 10 is a property interest of record and on file with 
the Custer County Clerk and Recorder. David Turner admitted 

that he was aware of the road and that he was shown the 

property boundaries. Under these circumstances this 

statement is sufficient to at least put the Turners, who were 

represented by counsel, on notice to inquire as to possible 

easements. 

Finally, the Turners argue they are entitled to 

rescission, or at a minimum that the District Court erred in 

granting a forfeiture under the contract for deed because 

merchantable title could not have been conveyed by the 

Ferrins due to failure to have a proper description according 

to the cases of McCarthy v. Timberland Resources, Inc. (Mont. 

1985), 712 P.2d 1292, 1294, 42 St.Rep. 2016; and Timberland 

Resources, Inc. v. Vaught (Mont. 1987), 738 P.2d 1277, 44 

St.Rep. 1054. These cases turned on interpretation of 

5 76-3-401, MCA, which requires a survey prior to the 

recording of property "one thirty-second or larger aliquot 

parts of a United States government section." We will not 

address the above interpretation as was attempted in both 

McCarthy , and Vaught . However, both cases are 

distinguishable because there was a refusal to record by the 

county in McCarthy and a challenge by the county attorney as 

to the recording practice in Vaught. 

No challenge to or refusal of recording has occurred in 

this case. The Turners allege that the warranty deed could 

not be recorded but have not proven this as fact and the 

allegation alone does not make the title unmerchantable. As 

was said by this Court, " [tlhe crux of the issue is whether 

the property is identifiable. '[Dleeds . . . must contain an 

adequate description of the property to be conveyed.'" 

Vaught, 738 P.2d at 1279. 

In Sharbono v. Darden (Mont. 1986), 715 P.2d 433, 436, 

43 St.Rep. 400, we held that a vendee is excused from failure 
to make a balloon payment because the vendor might never be 

in the position to convey title because the vendor had a 

condition precedent of satisfaction of a mortgage of the 

property prior to receiving clear title. We recently 

reiterated this standard in Stark v. Borner (Mont. 1987), 735 

This Court is concerned, however, about 

the lack of any findings regarding the 

sellers' ability to convey title after 

they accelerated payment. The 

established rule of law is that a vendor 

cannot, while unable to tender good 

title, enforce a forfeiture provision of 

a contract on default of the vendee. 

(Citation omitted.) 

". . . the mere failure of the purchasers 

to make the deferred payments did not 

ipso facto entail a forfeiture of their 

rights under the contract, and, when the 

vendor elected to give the notice which 

would effect that result, the forfeiture 

could only be declared if, at the time 

she demanded final payment, she could 

convey marketable title. (Citations 

omitted.)" Silfvast v. Asplund, 93 Mont. 

at 595, 20 P.2d at 636. 

This rule was enunciated most recently in 

Sharbono v. Darden (Mont. 1986), 715 P.2d 

433, 43 St.Rep. 400, where we agreed with 

the Fourth Judicial District's finding 

that- the vendee's "failure to make the 

balloon payment when due is excused by 

Sharbono' s [vendors] inability to convey 

title. " 

Stark, 

The Turners admit "[a? survey such as was undertaken by 

[the] Turners, at their own expense, might enable [the] 

Ferrins to be able to deliver a recordable deed . . . " The 

District Court noted that the Ferrins were willing to pay for 

the cost of the survey in its findings of fact and 
conclusions of law. It was not shown by a preponderance of 

the evidence to the District Court that the deed involved was 

truly defective and that title was not merchantable. Absent 

proof of the fact that the Ferrins did not have merchantable 

title, the District Court did not err in granting a 

forfeiture in this case. 

The judgment and order of the District Court are 

A affirmed. ,/' 

We concur: -