The Weston Democrat. [volume] (Weston, W. Va.) 1875-current, 1875-03-29

the iutmer Us We'll hl tne lRkeeF bupalu HA's
redre:s.
10, Because the parties have acted inpa-
teriAl mistake rs 10 the qualify that the
tract Of land sold contained, and so the rcn-
dor has agreed 10 take for the tract price
that, ifhe had known the quantity be would
not have taken, when there are no sufficient
coun,enetiDg Circumstances, the court will
rrseind the contract, unless tue purchaser will
voluntarily do what appears to DO Just but
the vendor having sold and conveyed the en-
tire tract, though supposed to contain q less
quantity than 10 fact il did, and so having
conferred on the purchaser An absolute estate
al law, the former should be content 10 take
IN additional sum proportiopalc 10 tho price
paid, or agreed 10 be pa ia, aS the excess Of
quantity Is 10 the estimated quantity Of the
tract.
iS The purchaser ought 10 have the option
whether be will submit 10 q recession Of the
sale or Conveyance, or pay the additional pro-
portionAte price for the excess. But, mas
much as the vendors primary right Is 10 8
resclsSon, subject however, TO tho qpalifca-
ton lust slltSl, II would seem that when by
the vendors act or negligence, or without
the fault OF the purchaser, the yendNr's right
to reselSSion Is eTtlnguiShed, DO eau no
longer DO entitled TO compensation against
the purchaser; though perhaps II II should
clearly appear that tue bargain waIso advan-
taEeouj 10 the purchaser that Il the option Of
rCscission or compensation remained with
him, be would elect the latter,t the &C urimigbt
compel hiuNto pay the compensation.
II. VIXEN the purchaser bias lold and con.
yeyed The land 70 another, for valuable con-
sidcraiiou, without notice ofthe mistake Rs to
the quantity, the tight VI the FIRST vendor TO a
rrSeisSOn Oflhe sale and conveyance made by
him, 10 eTtinguiShsd; unless there be such
mistake Ia the last sale and conveyance, made
under such circumstances, that the vendor In
that sale Is entitled 10 re5ciSsloui when, per-
haps, the inst vendor having such right
against tie latter vendor, may be substituted
" his right against the purchaser from him.
10. When adebtor conveys land TO q trus.
tee 10 secure the payment Of debt, no definite
price is 6xed, aud 50 the estimated quantity
Of tue land Is not al element In the f1alion
OF she price. Consequently excess Ia the ac-
tual quantity Of the land cannot cntille the
grauiUr In trust 10 arescission OF the convey
Anee, or compensation Tor the exccss.
10: The existence OF antetedeht debts Is n
valuable constellation fer the conveyance OF
assignment Of property TO secure tue pAymen,
Of tie debts aud Tue trustee and creditors are
purchasers ioF valuable consideration.
70. Then, In such caSe, the trustee and cred.
itor are uOtiu any manner liable 10 the grau-
tor in trust on account Of mistake iuquGntity
and the grantor has no righlagalnsl them Ia
the reSeissiOn or compensation, 10 which hil
vendor may substitute; and any right thai
while tae original purchaser owned tue land
his vendor may have had 10 = rrsciSilOn oil
tile sale and conveyance Is extinguished un-
less the trustee and creditors, orAE any rate
the latter, had notice OF the mistake from
which the right .oi the original vendor emA-
mated.
81. Possession oflaud if evidence that th,
possessed has the rightto tue possession thai
lie enjoys. Generally person purchasing 4
tract ofiand is presumed 10 know who hai
possession OF II, aud to ascertain the Charac-
Ter OF the risht by virtue OF which he hold
The possession; or II the purchaser falls 10 Dc
so, lie is charged with notice oil tue character
Of the right, SO far as this may be necessary
10 SUSTAIN the possession. Bat tue possession
by stranger TO the title sold or conveyed,
having no right ofpossession whAteycr,iS moi
notice, aud does not put purchaser on co.
uuiry as 10 mistake In former sale aud
conreyaHcs, relative TO the quantity OF the
lland-in no way pertaining 10 the right OIL
possesEiou-thAt gave the istuief vendor the
right 10 q reSrisiion Of the sale and convey.
ahce or compensation for the execas.
%, Whether the time that would bar An
action Of cjectnent for the recovery Of land,
or verbal contract for the payment OIL mon.
ey, OF for damages for an injury, elapsed be.
fore the discovery Of an excess 10 the quantity
Of land sold and conveyed, would bar sui,
in equity for the recession OF the contract OF
for compensation for the excess, or not; Il
may properly be asserted, that II the vendor
does 10. bring his suit within Sash time after
the sale and conveyance, he must make hi,
election and demand, or bring his suit githiu
reasonable time after the discovery Of the
mistake. lie iSnot entitled TO the time from
the sale and conveyance 10 the discovery oil
the mistake, and the additional time there
after that would bar An action, within
which 10 bring hIsSuit.
% by deed dated 3lst Of March, 1851, P.
granted 10 the V. @. Company "a corporation,
tract Of land described as 6l2s acres, con.
talning extensive beds Of Camel Coal at the
price Of $3.50, 900, part In cash AID part 10
stock, the actual value ofwhieh may have
been more or less than It's nominal value. In
the spring OF the same yeBr, the deed was &C.
ceptsd and the confederation paid. The par.
ties supposed tie number OF acres mentioned
WAS the actual quanelty OF the land, but In
fact II contalaed about 6979 Aeres-Rbout $50
acres more than was estimated. Tie v. y.
o. Company made large improvements on
and on the land intended to facilitate the re.
uoTal and transportation Of It's products.
un the 9th Of September, 1850, the v. o. @.
Company granted tue land lsEeept part
previously conTeyed) TO S & b., trustees, to
secure the payment Of anteeedent debts 10
several creditors. AT this time, none Of the
parties had discovered the mistake as 10 the
quantity. The ". N. an. Company n cor
pVratlOn, claimed that whatever right p. bad
ia or ruiAlive 10 the land, passed 10 II. IN
the spring OF the year 1850, the parties dis.
coveied tue mistake Us 70 the quantity ofth
land. But the w. Al. 4 N. Company made
no demand or election TO rescInd the sale OF
conveyance. On the 18th ofSeptembet, s65,
S. & B. trustee, granted the land 10 ], b. s.
at the price OF S.. 0O0.-a sum but little more
than necessary 10 pay the debts secured. The
purchase, 1t seems, was made for the benefit
Of A. and oiherf. some Of whom were stock
holders In the v. o. y. Company, but Others
Of whom were not. Uu the 53d VI December
In the same year, j. u. s. granted the tract
Of lahd, purchased by aud granted to him, TO
A. and ofheJ. On the 2ilh OF March, 1886,
the w. II. d NJ. Company caused summons
Ia ehsnesty 10 10 Issued against the v. o. q
Company, and 10 May Of tue same year liled
. bill against the latter Company, and, 1t be-
ing assumed that A. and otliers bad trans.
iefred an interest ia the land 10 the =. U. o.
Company, In the summer Of 1867, amended
the bill so rs TO make that Company party.
The plaintiff in these bills alleged that there
was an excess in the quantity oflhe land
granted by z. 10 the v. q. o. COMPANY, but
Al III al ii.