WRIGHT vs. WRIGHT

WRIGHT vs. WRIGHT. '.[BILL IN EQUITY BY .PURCHASER FOR ABATEMENT OF PURCHASE-MONEY.] 3.. Computation of interest in making abatement of purehase-moncy. — In making an abatement of tlie purchase-money, whore the several notes fall due at different times, and do not boar interest ¡until after maturity, it is a proper method of computing interest, to divide the amount of the damages by the number of notes, and to allow interest • on each sum from the time the notes respectively fell due; but, whore the several notes, though falling duo at different times, all bear interest from a given day before maturity, the interest on the damages should be computed from that day, and not from the maturity of the last note. ■Appeal from the Chancery Court of Macon. Heard before the Hon. James B. Claps. The bill in this case was filed by Mrs. Mary S. Wright .and her husband, Joseph J. Wright, against John Wright; and sought an abatement of the purchase-money of a tract of land sold by the defendant to Mrs. Mary Wright — 1st, on account of the defendant’s fraudulent misrepresentations as to the location of the southern boundary-line ; and, 2d, ;<on account of an actual deficiency in the quantity of land conveyed, as compared with the recitals of the deed. The contract was made on the 23d December, 1854. The agreed price was $7,500, payable in three equal annual installments, with interest from the 1st January, 1855 ; for which the complainants executed their three promissory-notes — one for $2,500, payable on the 3d January, 1855 ; ¡one for $2,700, payable on the 1st January, 1856 ; and one for $2,900, payable on the 1st January, 1857. Two of these notes were discharged at maturity, and tlie third 'was outstanding when the bill was filed. The defendant answered J denying the charges of fraud and misrepresentation ; and insisting that there was no deficiency in the ■quantity of land, and that there was no covenant, express or implied, as to quantity. On final hearing, on pleadings and proof, the chancellor held., that the statements of the defendant’s deed, as to the quantity of land conveyed, were mere matter of description, and did not constitute a covenant as to quantity y, but that the complainants were entitled to relief on account of the defendant’s misrepresentations as toi the location of the' boundary-line,- although made honestly and in good faith ; and he ordered a: reference to the master,..to aseertain-the amount of damages to which they were entitled on that account. The complainants appealed from this decree, and assigned the first branch-of it as error in this courtwhere the chancellor’s decree-was affirmed, as to that matter, at the January term, 1859; See the case reported in 34 Ala. 194. The master having afterwards-reported, that $325 was the amount which the-complainants were entitled to have deducted-from the un-' paid note, the chancellor enjoined the collection of that sum, with the interest thereon from the 1st January, 1857, and dissolved the injunction as to the residue of the-amount due on> the note. From this decree the complainants agaim appeal, .and here assign the same as-error. GüNN & StráNGB, for appellants.. N. S. Graham, contra. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. In Stow v. Bozeman, (29 Ala. 397,) it was held, that in making an abatement of the pui-chase-money,- it is a proper method of computing interest, to divide the amount of the damages by the number of notes originally given for the purchase-money, and to allow interest on each sum from the time tbe notes respectively fell due. In that case, the notes given did not bear interest before their maturity ; aud the rule adopted was undoubtedly tbe correct one, and should govern in all similar eases. But in the present case, (treating the difference of two days between tbe 1st and 3d January, 1855, tbe clay of the maturity of the first note, as merely nominal,) all tbe notes were made to bear interest from tbe 1st January, 1855 ; and it is fair, that the interest on tbe amount which tbe complainant was entitled to have deducted from the purchase-money, should be computed from the same time. The chancellor, however, allowed interest on the deduction' only from the'1st‘January, 1857, which .was the date of the maturity of the last note. In this there was error. ' There is no averment in the bill of mistake, as to the use .of:the- word eight, instead of eighty; no complaint of damage, on account of the use of that word in the description . of' the land ; no allegation “that defendant had over been called on to correct the mistake, and no prayer to have it corrected. 'The appellant is,‘therefore, not in a situation: to complain of the failure of 'the court to decree the correction of this mistake. 'There is nothing in the other assignments of error. For the error pointed out, 'the- decree must be reversed, and a decree here rendered," the same in all respects as the decree in the court bélow, except that the injunction shall extend'to the sum of'$825, with interest from the 1st January,'1855, instead of the 1st of January, 1857 ; this decree to take effect as of the -3d May, 1859. The costs of . the appeal must be equally divided between the appellants .and appellee.'