Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-14


The facts sufficiently appear from the
opinion of the court
The court says
The record does not show that the
contracts sought to be rescindcd in this
case were procured by fraud but it does
snow That the contract for the purchase
and sale of one of the parcels of land
VIZ. section II, was entered into under
IL mutual mistake us TO one of IFS
boundary lines, that the mistake was
IN Il matter which was II material part
OF the thini. contracted for. ana tbat
me Nendec is entitled II relief in some
form or other
mere the contract is cxecutorv. IT is
now We'll settled in this State that the
mutual mistake OF the parties in n mat
tcr Which is part OF the essence of the
coitract, ana of the substance of the
thinG contracted for, will be relieved
against in court of equity, and may
nc Il good ground for rescndinc: the
coit'act. or OF specifically executing il.
upon equltable terms of COMPENSATION.
according 10 circumstances.
but where the contract has been exc
cuted' and iescission is asked upon
mat ground. the mistake must be plain
ana palpable. ana must affect the very
substance of the thing contracted for.
Unless the purchase was made for
some Special purpose, which mas been
defeated by the land lost. it cannot he
ssld, III any proper sense. that il was
the very substance of the subject-mat
ter OF the contract.
me vendee claims that he purchased
thc lot Tor building purposes. bur the
evidence shows that it was purchased
NJ auction in the year lS9O,-a period
or wild speculation in town lots: th,t If
was low, much of 1t swampy. ana NOT
desirable for building purposes; that
ne ned it more than three
SeHrS without any Intention so
,ar ms the record shows, of
building upon it. and was making an
effort to sell 1t when he first learned of
the mistake now complained of. I'm
uer these circumstances, it can hardly
be doubted that it was purchased for
speculation, and not specially for build
ing purposes.
The evidence further tends to show
That the land lost is mere vaI,nhI"
LOOT Tor foot, than the residue of tho
io', ana That such 4 sidue is not ne
valuable rs the whole lot would he nv
one,third. or perhaps more.
hese iacts. If the contract were cx
ecutory might be sufficient in iustifv
a court of equity in refusing tn sne,
cihcaIiy execute 1t at the suit of The
vendors; but they are not sufficient in
our opinion 10 require its rascIssion
Wheh executed by The parties. The land
i"St was II material part of the sub
stance of the contract under considera-
tion, pat IT was not the substance Of
IL. What the vendors intended 10 soil
ana me vendoe TO purchase was II par
cei OF iand, known rs Section H." sit
u4led in a certain portion of tho CITY
Oh Roanoke, bounded by certain streets
ana or certain dimensions The land
conveyed to and held by the vendeo is
section IL, is situated ut the same place.
IS bounded hy The same streets. ana
IS the Identical property which the par
lies intended To sell and purchase. OK
cc,ept as to the morrow strip taken by
me Norman road.
we are of opinion. therefore. that
tTrc rOUTT CT-TCt 1T UTCTC01fIg II
rescission OF the contract It's decree
must he reversed. and the cause re-
manded. with direction to the court to
ascertain and allow the vendec Just
compensation for the land lost by SUI
perior title; it now being settled in this
state That Notwithstanding the Ven
does right to proceed at law upon his
covenants for title. he has the right to
go into n court of equity. unon the
ground Of mistake. and recover COM
pensatiOn.
BROWN V. MILLER'S EXRS.