Jim Johnson, Associate Justice.
This is an involved lawsuit seeking specific performance of a contract for the purchase of land.
The trial court made the following findings:
“That O. P. Leonard is the plaintiff; that he has considerable wealth; that he speculates in buying and selling large tracts of real estate; that J. E. Morrison is O. P. Leonard’s local agent and also a real estate broker; that he bargained for the land involved in this litigation;
“That on December 20, 1957, Jack Wood and wife, Elizabeth, entered into a contract of sale with J. E. Morrison wherein it provided that Jack Wood and wife, Elizabeth, were to sell him 1,670 acres of land for $35,000.00; that the greater portion of it was accretion land;
“That on April 16, 1956, L. L. Tanner and wife, Grace L. Tanner, et al, filed their suit against Jack Wood and wife, Elizabeth Wood, et al, in the Chancery Court of Little River County, Arkansas, Case No. 950; that the land involved in this Chancery Case included a considerable area of the land contracted to sell to J. E. Morrison and involved in this present litigation; that the L. L. Tanner case will hereafter, in this opinion, be referred to as the Tanner case and this Tanner case was tried on October 20 and 21, 1958; that on March 2, 1959, a Memorandum Opinion in the case was. filed by Judge Pilkinton, who tried the case; that on September 8, 1959, a decree was entered and filed, and on September 17,1959, a nunc pro tunc decree was entered and filed therein; that the plaintiffs, L. L. Tanner, et al, were awarded 459 acres of this land that was included in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard;
“That on November 5,1959, J. E. Morrison assigned the contract of sale to purchase this land from Jack Wood and wife, Elizabeth, to his principal, O. P. Leonard; that after the opinion and the decree were entered in the Tanner case, taking 459 acres of land described in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, this left only 1,154 acres for Jack Wood and wife, Elizabeth; that Jack Wood then contacted O. P. Leonard and gave him the first opportunity to purchase this 1,154 acres left to Jack Wood after the Tanner -case was decided; that O. P. Leonard declined to purchase the land from Jack Wood on the terms offered him;
“That on Septembei 17, 1959, after having given O. P. Leonard a chance to buy this 1,154 acres of land, deeded the land to G-. T. Stewart and wife, Mrs. G-. T. Stewart, Chester Stewarl and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson, for a total consideration of $34,620.00; that the 1,154 acres was sold by Jack Wood and wife to these parties at the rate of $30.00 per acre;
“That thereafter, on November 23, 1959°, O. P. Leonard filed this suit against Jack Wood and wife, Elizabeth, G. T. Stewart and wife, Mrs. G. T. Stewart, Chester Stewart and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson; that this suit wa?¡ filed in Little Eiver County, Arkansas, and is Chancery Case No. 1120; that this was a suit in specific performance of the contract entered into by and between Jack Wood and wife.', Elizabeth, and J. E. Morrison on December 20, 1957, wherein Jack Wood was to sell to J. E. Morrison 1,670 acres of land for $35,000.00; that this suit was tried before the Court on March 14 and 15, 1960; that the question for this Court to decide is whether O. P. Leonard is entitled to have the sales contract enforced in this court against Jack Wood and wife, Elizabeth, in specific performance of the contract; that O. P. Leonard was willing to pay . $20.96 per acre for the 1,154 acres left after the court awarded the 459 acres to the plaintiffs in the Tanner case; that this would be an abatement in the price paid for said land in proportion to the number of acres diminished as a result of the outcome of the Tanner case; that this is, in brief, the theory of the plaintiff’s case; that the defendants, Jack Wood and wife, Elizabeth, argue that they were to receive $35,000.00 for 1,670 acres of land, more or less, and that the amount paid for said land should not be abated in proportion to the number of acres taken from them as a result of the 159 acres awarded to the plaintiffs in the Tanner case; that this is, in essence, the theory of the defendants, Jack Wood and wife, Elizabeth Wood, case;
“That the undisputed evidence is that both Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard, had full knowledge of the fact that the Tanner case was pending on the Chancery Court docket in Little River County, Arkansas, at the time the sales contract was entered into on December 20, 1957, by and between them; that it was also well known to both of them that if the Court found in favor of Jack Wood and wife, Elizabeth, and against L. L. Tanner et al, plaintiff in the Tanner case, that he could perform the contract that he had made with J. E. Morrison and could convey to him the 1,670 acres of land for a consideration of $35,000.00; that while, on the other hand, it was just as well known by both of them that if the Court awarded a part of this land to the plaintiffs in the Tanner case, that it would be impossible for Jack Wood and wife, Elizabeth, to perform this contract by conveying 1,670 acres to O. P. Leonard for $35,000.00; that, in other words, there was a future conditional contingency existing in the performance of this contract well known to both Jack Wood and wife, Elizabeth, and J. E. Morrison, and it was as well known that this contingency existed and was out of reach and beyond the control of either one of the parties to this sales contract; that it was impossible for Jack Wood and wife, Elizabeth, to convey 1,670 acres of land, as contracted, if the Court took a part of this land and vested title to it in the plaintiffs in the Tanner case; that this contract was, in effect, and in fact, broken by the decree of the Court in the Tanner case which was beyond the control of either of the parties in this lawsuit; that since the parties to this sales contract, executed on December 20, 1957, had full knowledge of the Tanner case being filed before this contract was entered into, the plaintiff, O. P. Leonard, cannot now complain that the future conditional contingency existed, the condition being’ that the contingency might or might not come into existence, depending entirely upon the holding of the Court in the Tanner case, this was a contract that should not be enforced in this court by specific performance;
“That it will be further observed that it is not contended by either side that there was misrepresentation, or fraud, or deceit practiced upon anyone;
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Jim Johnson, Associate Justice.
This is an involved lawsuit seeking specific performance of a contract for the purchase of land.
The trial court made the following findings:
“That O. P. Leonard is the plaintiff; that he has considerable wealth; that he speculates in buying and selling large tracts of real estate; that J. E. Morrison is O. P. Leonard’s local agent and also a real estate broker; that he bargained for the land involved in this litigation;
“That on December 20, 1957, Jack Wood and wife, Elizabeth, entered into a contract of sale with J. E. Morrison wherein it provided that Jack Wood and wife, Elizabeth, were to sell him 1,670 acres of land for $35,000.00; that the greater portion of it was accretion land;
“That on April 16, 1956, L. L. Tanner and wife, Grace L. Tanner, et al, filed their suit against Jack Wood and wife, Elizabeth Wood, et al, in the Chancery Court of Little River County, Arkansas, Case No. 950; that the land involved in this Chancery Case included a considerable area of the land contracted to sell to J. E. Morrison and involved in this present litigation; that the L. L. Tanner case will hereafter, in this opinion, be referred to as the Tanner case and this Tanner case was tried on October 20 and 21, 1958; that on March 2, 1959, a Memorandum Opinion in the case was. filed by Judge Pilkinton, who tried the case; that on September 8, 1959, a decree was entered and filed, and on September 17,1959, a nunc pro tunc decree was entered and filed therein; that the plaintiffs, L. L. Tanner, et al, were awarded 459 acres of this land that was included in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard;
“That on November 5,1959, J. E. Morrison assigned the contract of sale to purchase this land from Jack Wood and wife, Elizabeth, to his principal, O. P. Leonard; that after the opinion and the decree were entered in the Tanner case, taking 459 acres of land described in the contract of sale between Jack Wood and wife, Elizabeth, and J. E. Morrison, this left only 1,154 acres for Jack Wood and wife, Elizabeth; that Jack Wood then contacted O. P. Leonard and gave him the first opportunity to purchase this 1,154 acres left to Jack Wood after the Tanner -case was decided; that O. P. Leonard declined to purchase the land from Jack Wood on the terms offered him;
“That on Septembei 17, 1959, after having given O. P. Leonard a chance to buy this 1,154 acres of land, deeded the land to G-. T. Stewart and wife, Mrs. G-. T. Stewart, Chester Stewarl and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson, for a total consideration of $34,620.00; that the 1,154 acres was sold by Jack Wood and wife to these parties at the rate of $30.00 per acre;
“That thereafter, on November 23, 1959°, O. P. Leonard filed this suit against Jack Wood and wife, Elizabeth, G. T. Stewart and wife, Mrs. G. T. Stewart, Chester Stewart and wife, Mrs. Chester Stewart, and E. A. Patterson and wife, Mrs. E. A. Patterson; that this suit wa?¡ filed in Little Eiver County, Arkansas, and is Chancery Case No. 1120; that this was a suit in specific performance of the contract entered into by and between Jack Wood and wife.', Elizabeth, and J. E. Morrison on December 20, 1957, wherein Jack Wood was to sell to J. E. Morrison 1,670 acres of land for $35,000.00; that this suit was tried before the Court on March 14 and 15, 1960; that the question for this Court to decide is whether O. P. Leonard is entitled to have the sales contract enforced in this court against Jack Wood and wife, Elizabeth, in specific performance of the contract; that O. P. Leonard was willing to pay . $20.96 per acre for the 1,154 acres left after the court awarded the 459 acres to the plaintiffs in the Tanner case; that this would be an abatement in the price paid for said land in proportion to the number of acres diminished as a result of the outcome of the Tanner case; that this is, in brief, the theory of the plaintiff’s case; that the defendants, Jack Wood and wife, Elizabeth, argue that they were to receive $35,000.00 for 1,670 acres of land, more or less, and that the amount paid for said land should not be abated in proportion to the number of acres taken from them as a result of the 159 acres awarded to the plaintiffs in the Tanner case; that this is, in essence, the theory of the defendants, Jack Wood and wife, Elizabeth Wood, case;
“That the undisputed evidence is that both Jack Wood and wife, Elizabeth, and J. E. Morrison, agent of O. P. Leonard, had full knowledge of the fact that the Tanner case was pending on the Chancery Court docket in Little River County, Arkansas, at the time the sales contract was entered into on December 20, 1957, by and between them; that it was also well known to both of them that if the Court found in favor of Jack Wood and wife, Elizabeth, and against L. L. Tanner et al, plaintiff in the Tanner case, that he could perform the contract that he had made with J. E. Morrison and could convey to him the 1,670 acres of land for a consideration of $35,000.00; that while, on the other hand, it was just as well known by both of them that if the Court awarded a part of this land to the plaintiffs in the Tanner case, that it would be impossible for Jack Wood and wife, Elizabeth, to perform this contract by conveying 1,670 acres to O. P. Leonard for $35,000.00; that, in other words, there was a future conditional contingency existing in the performance of this contract well known to both Jack Wood and wife, Elizabeth, and J. E. Morrison, and it was as well known that this contingency existed and was out of reach and beyond the control of either one of the parties to this sales contract; that it was impossible for Jack Wood and wife, Elizabeth, to convey 1,670 acres of land, as contracted, if the Court took a part of this land and vested title to it in the plaintiffs in the Tanner case; that this contract was, in effect, and in fact, broken by the decree of the Court in the Tanner case which was beyond the control of either of the parties in this lawsuit; that since the parties to this sales contract, executed on December 20, 1957, had full knowledge of the Tanner case being filed before this contract was entered into, the plaintiff, O. P. Leonard, cannot now complain that the future conditional contingency existed, the condition being’ that the contingency might or might not come into existence, depending entirely upon the holding of the Court in the Tanner case, this was a contract that should not be enforced in this court by specific performance;
“That it will be further observed that it is not contended by either side that there was misrepresentation, or fraud, or deceit practiced upon anyone;
“That it would certainly be unfair and inequitable to say that Jack Wood and wife, Elizabeth, should not have the right to bargain on the sale of their 1,154 acres of land left remaining after the Court had taken 459 acres of their land involved in the contract and awarded it to the plaintiffs in the Tanner case; that when all of the facts and circumstances upon the whole case are considered together, the parties to this contract should not be permitted to gamble on the Court’s decision in the Tanner case and either one, thereafter, allowed to take advantage of the decision and profit thereby against the other without further bargaining; that the land awarded to plaintiffs in the Tanner case might be a different grade of land to that of Jack Wood; that it is convincing to this Court that the weight of the evidence preponderates in favor of Jack Wood and wife, Elizabeth, and, therefore, it is the holding of the Court that specific performance does not lie to enforce this contract and require Jack Wood and wife, Elizabeth, to execute a deed to O. P. Leonard to this land;
“That neither the plaintiff nor the defendants are entitled to damages against the other;
“That when the contract of sale by and between Jack Wood and wife, Elizabeth, and J. E. Morrison was entered into on December 20, 1957, or thereabout, an escrow agreement was entered into by these same parties by which O. P. Leonard placed in escrow in the State National Bank, Texarkana, Arkansas, that he would pay to Jack Wood and wife, Elizabeth, this amount if he failed, upon his part, to perform the conditions of the contract of sale; that O. P. Leonard is entitled to have this $3,500.00, placed in escrow thereunder, refunded to him; that all costs expended in and about this proceeding should be paid one-half by the plaintiff and one-half by the defendants.”
The land here in question was described in the contract as follows:
“All that fractional Southwest Quarter and all that fractional Southeast Quarter of Section 5 and all that fractional West Half of Section 8; all in Township 14 South, Range 30 West and all accretions thereto containing a total acreage of 1,670 acres more or less.”
The abstract reflected Jack Wood, et ux, to be the record owners of approximately 275 acres of deeded land. The county tax records listed the land as 281.22 acres. Even so, it is well established in this State that when you convey deeded lands they carry with them the accretions. The exact number of accreted acres was somewhat in conflict.
It is well settled that the mention of quantity of acres after a certain description of the subject by metes and bounds, or by other known specifications, is but a matter of description, and does not amount to any covenant or afford grounds for the breach of any of the usual covenants, though the quantity fall short of the given amount. When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added containing a specified number of acres, more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right of relief for such deficiency is founded upon fraud, misrepresentation or gross mistake. See: Harrell v. Hill, 19 Ark. 103; Goodwin v. Robinson, 30 Ark. 535; Neely v. Rembert, 71 Ark. 91, 71 S. W. 259; Joseph v. Baker, 95 Ark. 150, 128 S. W. 864; Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787; Young v. Bradshaw, 224 Ark. 467, 274 S. W. 2d 466; Parker v. Whistle, 227 Ark. 731, 301 S. W. 2d 445.
Here, as found by the Chancellor, it is not contended by either side that there was fraud, misrepresentation, or deceit practiced upon anyone, nor do we find a contention of gross mistake.
Following the rule set out above, we conclude from the whole case on trial de novo that the contract here in question does not set any sum per acre basis and is a gross sale. Accordingly, since the findings of the learned Chancellor are not against the weight of the evidence, the decree is affirmed.
MoFaddin and George Eose Smith, JJ., dissent.