McFerran v. Taylor & Massie
7 U.S. 270

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U.S. Supreme Court

McFerran v. Taylor & Massie, 7 U.S. 3 Cranch 270 270 (1806)

McFerran v. Taylor & Massie

7 U.S. (3 Cranch) 270

Syllabus

He who sells property on a description given by himself is bound in equity to make good that description, and if it be untrue in a material point, although the variance be occasioned by mistake, he must still remain liable for that variance.

A finding by the jury which contradicts a fact admitted by the pleadings is to be disregarded.

McFerran in his bill alleged that on 19 March, 1784, the defendant, Taylor, for a valuable consideration, executed his bond to the complainant for the conveyance of 200 acres of land out of 1,000 acres located by him on Hingston, or out of 5,000 acres which Taylor then had for location. The condition of the bond was as follows:

"That if the said Richard Taylor, his heirs, &c., shall well and truly make or cause to be made to the said Martin McFerran, his heirs or assigns, a good sufficient title in fee simple to two hundred acres of land in the County of Kentucky out of 1,000-acre tract located by the said Richard Taylor on Hingston's Fork of Licking, or 200 acres out of 5,000 which the said Taylor has now for location, provided he obtain the same, at such part or place thereof as the said McFerran shall choose, not to exceed more than twice the breadth in length thereof, so soon as the lands can in any degree of safety be surveyed,

Page 7 U. S. 271

then this obligation to be void, otherwise to remain in full force and virtue."

The bill further alleged that on 25 September in the same year, the defendant Taylor executed another bond to the complainant for 300 acres of land adjoining the former tract of 200 acres.

That the said 5,000 acres of land alluded to by the bonds was granted to Taylor for his military services by a warrant numbered 1,734, which issued for 6,000 acres, but that Taylor did not inform the complainant that it contained more than 5,000 acres. That 1,000 acres of the 6,000 have been located on Paint Creek, and 2,000 on Brush Creek, in the northwestern territory, and 3,000 on the Green River, in the District of Kentucky. That Taylor had not any lands on Hingston, so that the complainant cannot make his choice there, where he avers the general quality of the land is equal to any in Kentucky, and is worth from $8 to $10 an acre. That Taylor has sold the 1,000 acres on Paint Creek to the defendant Massie, who, before he paid for the land and obtained a title from Taylor, had notice of the complainant's claim to 500 acres from Taylor, as before stated.

That before the sale to Massie, Taylor had sold the 2,000 acres on Brush Creek to Abraham Buford or to someone else, and in consequence thereof assigned the certificate of survey to John Brown. That in 1796, the complainant applied to Taylor to show him his lands, that he might make his choice, but Taylor neglected and refused to show them. That the complainant chooses to have the 500 acres laid off and conveyed to him from the land on Paint Creek, and has given notice of his choice to Taylor, who refuses to convey the same from out of that tract and refuses to accompany the complainant to have the same laid off, and that Massie also refuses to convey.

The bill concludes with a prayer that the complainant may be permitted to make choice of 500 acres of land out of the 1,000 acres on Paint Creek, that the defendants may be compelled to convey the same, and that the court would grant general relief, &c.

Page 7 U. S. 272

The answer of the defendant, Taylor, admitted the bonds and that the 500 acres were to be laid off in one tract. It alleged that the consideration of the first bond was two horses, sold to him by the complainant at the price of

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