Hofman v. Keane

54 F. 986, 1893 U.S. App. LEXIS 2520

• Court: U.S. Circuit Court for the District of Western Washington
• Decided: March 3, 1893
• Status: Published

Opinion

HANFORD, District Judge.

The complainants charge the defendant with having committed a fraud upon them by falsely representing the tract of land described in their bill of complaint as containing 52.25 acres, when in fact the quantity of land in said tract is but 19.5 acres, and thereby inducing them to purchase said tract for the price of $8,220, and on this ground pray for a rescission of the contract. The answer denies the charge of fraud, and makes an issue as to the quantity of land in the tract. From the evidence I fmd that upon the plat of the government survey the tract is shown as a lot containing 82.25 acres, situated between the main channel of the Cowlitz river and a branch of said river; the branch being one of the boundaries. Since the government survey was made, the river and said branch have, by avulsion, united in a new channel cut through this tract, dividing it into two parts, and washing away a portion of the soil. The change made by the river has not reduced the area to which the owner has title, but by the washing away of the soil the quantity of tillable land has been diminished so that there remains but 19⅛ acres of tillable land. Before concluding negotiations for the sale the defendant conducted the plaintiff Frank G. Hofman to the land for the purpose of viewing it. The loss of soil by the action of the river was then noticed by said plaintiff, as well as by the defendant, but neither of them knew the extent of it, or the quantity of land in the tract, and they were not able to locate all of the boundaries. In their calculations the parties estimated the tract as 52 acres, and fixed $70 per acre as the price; and, instead of measuring the ground, they agreed to consider the loss by action of the river as being equal to the price of 6 acres, at said rate. Thus $3,220 became die agreed price for the whole tract,. By Ms deed the defendant conveyed the entire tract to the plaintiffs. The parties having, in making their contract, assumed that there was a deficit of an unknown quantity of tillable land, and agreed upon an abatement of a specified sum from the contract price to make good the loss, I hold that the allegations of fraud are not sustained. The complainants have received all that they can justly claim, although it now appears that the bargain is not so advantageous to them as they supposed it to be at the time of making it, Decree dismissing the bill, with costs.