Hendricks' Heirs v. Mosely

11 Tenn. 74

Opinion

Peck, J.

delivered the opinion of the court.

This is a bill filed by the administrator and heirs of Hendricks, for the value of a surplus of land conveyed by the deceased to Mosely.

The complainant has failed m establishing the mam allegations m his bill, to wit: the express promise to pay for the surplus, and that this was a selling by the .acre. Having failed in these particulars, it leaves us the question to determine, whether equity will interpose, and give damages for an excess, there having been a deed executed, and no fraud or mistake proved.

The surplus does not amount to eight per cent, there. being found in the tract called to contain 804 acres, about 60 acres surplus; this is not unreasonable. In granting lands, ten per cent was originally allowable in making surveys by the state; and more surveys were made containing a greater surplus, than were found to contain less. Take this case according to the facts, and it was a sale of a tract of land for a given sum of money. The deed, which must be taken (in the absence of proof of fraud, mistake or surprise,) to contain the contract, is all that we can look to. After this solemn act of making the deed, the parties cannot be let in on slight grounds, to open the contract.

We will not. say that in no case of surplus, would the court deny relief. A case might arise where the quantity would be so great as to be proof of mistake; but that is not the case before us. The decree must be reversed and the bill dismissed.

Decree reversed.