The defendant contracted, in writing, to sell to the plaintiff a (8) tract of land, supposed to contain 1,000 acres, at the price of $6 per acre. It was agreed between the parties that Lewis Reavis should survey the land and ascertain the number of acres. In this agreement the defendant contracts to deliver to the plaintiff within one week a good and sufficient title in fee simple to "the 1,000 acres (or less, if the whole of the land does not amount to that quantity)."
The land was surveyed by Reavis, but he delayed making his estimate so long that the defendant, to enable himself to perform his part of the contract by delivering a conveyance within the time specified, procured the field notes of the surveyor, platted the land, and made an estimate of the number of acres. By calculation, the tract contained 982 11/16 acres. On the day appointed for closing the contract, they met, when the defendant apprised the plaintiff that in consequence of the delay of *Page 20 Reavis, he had made the estimates from his field notes, and proffered to convey the land to him, and required payment for the number of acres according to his estimate, at $6 per acre. The plaintiff declined accepting the conveyance or making payment until the estimate should be made by Reavis or some other practical surveyor. The parties then entered into a new agreement, which is as follows:
"Articles of agreement between John D. Hawkins and James Stamper. The said John D. Hawkins has this day sold and conveyed to the said James Stamper a tract of land in the county of Granville, etc., containing 982 11/16 acres, at the rate of $6 per acre, which land has been surveyed by Lewis Reavis; and it is mutually agreed between the parties aforesaid that the field notes of the said Lewis Reavis, or a true copy of them, shall be furnished to a competent and accurate surveyor and platter; and if upon a statement made out by such surveyor the number of acres shall fall short of the quantity in the said deed of John D. Hawkins, then the said Hawkins shall refund to the said Stamper the (9) value of such deficiency, at the rate of $6 per acre," etc. This agreement bears date 27 January, 1843. The field notes of Lewis Reavis were put into the hands of Benjamin Sumner and Thomas B. Littlejohn by the plaintiff, both of whom were skillful surveyors and accurate platters, in whom both parties had full confidence, with directions "to plat the said tract of land from the said field notes, and to ascertain and make out a statement of the quantity and number of acres therein contained." Upon executing this new agreement, the plaintiff paid the defendant the price agreed on, towit, $6 an acre, supposing the estimate of the defendant to be correct. The bill charges that Mr. Littlejohn and Mr. Summer each reported, from some error in the field notes, it was impossible to make out a plat or to determine from them, with any accuracy, the quantity or number of acres in the said tract; that this fact was made known to the defendant, with a request that he would have the land resurveyed, which was declined. The plaintiff then employed Edward Bullock, the county surveyor, to survey the land and ascertain the number of acres, which he accordingly did, and found the number of acres to be 932 and 32 poles, less by 50 acres than what the defendant had been paid for. The bill further charges that the field notes of Lewis Reavis were mislaid by Mr. Littlejohn and not found by him until a short time before the filing of this bill. The prayer of the bill is that the land, if necessary, may be resurveyed, and the defendant decreed to refund to the plaintiff so much as it shall appear he has overpaid, with interest, etc.
The answer admits the contracts as set forth in the bill, and the defendant avers that from the field notes of Lewis Reavis an accurate plat could be made of the land sold by the plaintiff, and the number of acres *Page 21 truly ascertained, and that the calculation made by him from (10) them was correct; that in entering into the agreement of 27 January, 1843, it was the understanding, as expressed therein, that in ascertaining the number of acres the calculation should be made from the field notes of Lewis Reavis. He further avers that the land belonged to Mr. Jones, for whom he was surety to a large amount, and had been conveyed in trust to pay the debts of the said Jones — those for which he was bound with others; that at the trustee's sale he purchased the land in question and immediately thereafter sold it to the plaintiff, and paid the money, received from him, over to the trustee, and had with him a final settlement; and that this payment was made by him after waiting some considerable time to enable the plaintiff to have the number of acres in the tract accurately ascertained; and that the plaintiff ought not to be permitted, after lying by so long, to sustain his claim. The mistake of the defendant in this case, in refusing to have the land in controversy resurveyed, rests, apparently, upon an opinion formed by him that, as the agreement of 27 January, 1843, required the number of acres contained in the tract to be ascertained from the field notes of Lewis Reavis, the parties were bound by them, so that neither was at liberty to depart from them. It is certainly correct, as a general rule, that where the parties to a contract have reduced its terms to writing, the whole sense of the parties is presumed to be contained in the written instrument, and a departure from it is not allowable. But it is one of the established rules of a court of equity to grant relief in cases of a mistake of matters of fact, when the mistaken fact constitutes a material ingredient in the contract of the parties. But to authorize this interference, the mistake must be made out by proofs (11) entirely satisfactory Story Eq., secs. 151-2-3. In the case before us the land was sold for so much per acre, and in order to ascertain what the plaintiff had to pay and the defendant to receive, it was essential to have the tract surveyed. Neither party knew at that time what it did contain. Lewis Reavis, in whose capacity as a surveyor each had confidence, was elected, his survey was made, and, upon his delay to make a plat to estimate the quantity of acres, the defendant procured his field notes and made the calculation himself. The plaintiff declined being governed by the defendant's calculation, and there was no obligation upon him to receive it as correct. After some difficulty, the new agreement of 27 January, 1843, was made, and in this it was stipulated that the field notes of Mr. Reavis should be put into the hands "of a *Page 22 competent and accurate surveyor and platter," and from them an estimate should be made. The mistake upon which relief is to be granted is that the field notes of Reavis were supposed to be such as from them an accurate estimate might be made. It is fair to presume that at the time this agreement was entered into each party believed such to be the fact, and it is clear the plaintiff so thought. The fact, however, turns out not to be so. Both Mr. Littlejohn and Mr. Sumner, the parties selected for their skill and competence, testify that no approach to accuracy could be made in platting and estimating the quantity of acres from the field notes of Reavis; that the last line could not be made to close the plat. To the same effect is the testimony of Mr. Bullock, the county surveyor. According to this testimony, then, the agreement of 27 January could not be literally carried out — the parties were mutually mistaken in so believing. The substance of the agreement was the accurate ascertainment of the number of acres contained in the tract, and (12) for the purchase of which the plaintiff had contracted. The survey made by Reavis was of no value; and it was absolutely necessary that another should be made. The proposition made by the plaintiff, to have the land resurveyed, was a proper one, and the only one by which the contract could be carried into execution; and it is to be regretted that it was not acceded to.
The defendant's allegation that he had settled with the trustee, from whom he purchased, upon an estimation based upon Reavis's survey, and that the plaintiff, after waiting the time he has before filing his bill, ought not to be permitted to call in question its accuracy, cannot avail him. He paid the money to the trustee on his own responsibility, upon an estimate made by himself, the accuracy of which he knew was questioned. The plaintiff had no concern or interest in his contract with the trustee, or with his payment of the money to him; and to him the defendant must look, if he has paid him more than he was bound to do.
The plaintiff is entitled to the relief he seeks, upon the footing of the mistake in Reavis's survey. But the Court will not proceed definitely to determine, upon the evidence, the deficiency in the tract of land, as the defendant requires a resurvey, which is granted according to the course of the court.
PER CURIAM. Decree accordingly.
Cited: Morrisey v. Swinson, 104 N.C. 564; King v. Hobbs, 139 N.C. 173. *Page 23
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