Gay v. Larimore

Howell, J., dissenting. The evidence in this case brings me to the conclusion that the parties contracted with reference to the quantity rather than to any fixed limits or boundaries of the land, and as the deficiency is considerably more than one-twentieth, I think the defendant is- entitled to a proportionate reduction of the price. In the agreement of sale the titles of the vendor are not referred to> as containing a description with boundaries, but merely, I think, as the source of his acquisition, and at the time one of his titles was not recorded and no proper description of it is given; and in the notarial act of sale, executed some months afterwards in a distant city, the description is not made any more specific, except to give the date of and notary passing the said act, which was recorded after the said agreement. The authorities cited^by the plaintiff do not, in my opinion, sustain his position. I therefore dissent. Rehearing refused.