
    Walling v. Kinnard.
    It is a general although not a universal rule that where a misrepresentation as to the quantity of the land is made by the vendor, though innocently, the right of the purchaser, if lie docs not abandon the contract, is to have what the vendor can convey with an abatement of tho purchase money for so much as the quantity falls short of the representation. (Note 91.) ‘
    "Wherever there is a standard by which to estimate with precision, the amount claimed, the amount is in effect liquidated, and presents a proper case for tender, entitling the defendant to exemption from costs, provided tho amount be paid into court with tho plea,
    it is not tho duty of the vendee in this country to prepare and tender to the vendor a deed for execution; but it is tho duty of tho vendor to have the deed prepared at his own expense, in the absence of express stipulation.
    In equity in suits for specific performance, prima facie, the party who fails in the suit is liable for the costs; but as costs in equity lie m the breast of the court, the prima facie claim to costs may be rebutted by the circumstances of the case, and it is for tho court to decide whether the circumstances are or are not sufficient to rebut tho claim.
    "Where there is no statement of facts, it must be presumed that everything was proved which was susceptible of proof under the pleadings. (Note 92.) /
    Error from Rusk. The plaintiff in error, Jesse Walling, sold to O. H. Kin-nard, the defendant in error, a tract of land described by metes and bounds, and purporting to contain one hundred and sixty acres. The price was three hundred and twenty dollars, or at the rate of two dollars per acre, scoured by two promissory notes for one hundred and sixty dollars each. Walling gave a bond for title with a condition binding himself on the payment of the notes to make to tlie said Kinnard or Mary liis wife a good and lawful title to the land. After 1 he payment of tlie notes it was discovered that the tract, instead of containing' one hundred and sixty acres, amounted only to ninety-seven and eight-! snihs acres. Tlie purchaser, Kinnard, brought this suit for specific performance, by conveyance of title and for damages, and drew a strong picture of the fraudulent representations of Walling, and tlie wrongs, losses, and injuries inflicted upon himself.
    WalUng, in his answer, excepted to tlie sufficiency of tlie petition, and further denied all fraud and fraudulent representations. lie averred that the land had not been surveyed at the time of the sale; that the defendant and himself in company examined said land by riding over it, the plaintiff agreeing lo brfjHiliff’fepid within the boundaries, neither of them knowing how much there was. Among other matters the defendant alleged that being anxious to avoid a difficulty and a law suit, lie, before the commencement of this suit, tendered to the plaintiff in gold at the rate of two dollars per acre for the number of acres which said tract might prove loss than a tract of one hundred aud sixty acres, and further, lie brought tlie money into court, which reasonable request the plaintiff refused. Tn an amended answer lie averred that the plaintiff liad not prepared and tendered a deed to defendant for tlie land, and that the defendant was in no fault, and should not be charged as alleged in plaintiff’s petition.
    Tlie jury found for the plaintiff one hundred and twenty-four dollars and forty cents. They found for defendant on the plea of tender, and that he make title to the land described in the petition.
    Judgment was rendered in conformity with tlie vei'dict, and also that the plaintiff recover of tlie defendant all costs.
    Judgment was entered at Fall Term, 1851, and in May, 1852, this writ of error was taken ont. There was no statement of facts nor bill of exceptions preserved in tlie record. The errors assigned were—
    1st. In giving; judgment for costs against the defendant after the jury had .found for him on his plea of tender.
    2d. In overruling the exceptions to tlie plaintiff’s petition.
    
      Turner & Ector and S. P. Hollingsworth, for plaintiff in error.
    I. The court erred in overruling defendant’s exception to plaintiff’s petition in this: the contract as set out in tlie petition shows a sale of land by metes and hounds running certain courses to certain known and described corners marked in a particular way, &c. The mention, then, after giving courses aud corners of a certain number of acres, was mere description, and not a covenant that the number of acres was there; nor does it afford ground for tlie breach of any of tlie usual covenants, though tlie quantity of acres should fall short of tlie given covenant. (4 Kent, p. 4C9.)
    II. The vendor is not liable for costs after tender of tlie deficiency in money and tender of the deed. (4 Bibb, 7, Handley v. Chambers.)
    
      M. Casey, for defendant in error,
    I. There is no error in overruling the demurrer of the plaintiff in error. “It is true generally, but not universally, “that a purchaser may take what he can get with compensation for what he “cannot have.” (.Sugden on Vendors, p. 274.) Courts of equity allow the purchaser an election to proceed with tlie purchase pro tanto, or to abandon it altogether. The general rule in all such cases, though it is not universal, is thai the. purchaser, if lie chooses, is entitled to have tlie contract specifically performed as far as the vendor can perforin it, and to have an abatement out of Hie purchase-money, or compensation for any deficiency in tlie title, quantity, quality, description, or other matters touching (.lie estate. (2 S. E., p. 89, sec. 779.) '“When a misdescription as to quantity is made by tlie vendor, “though innocently, the right of tlie vendee is to have what the vendor can cou-“vey,\vithan abatement of tlie purchase-money for so much as the quantity ■“fuiis short of (he. representation.” (4 Tex. II., 73, Mitchell v. Zimmerman.) H. There is no error in tlie ruling of the court by which tlie plaintiff in ■error was taxed with the costs of the suit. The tender was not co-extensive with tlie judgment, because the defendant in error obtained a decree for a deed, together with tlie amount tendered in the court after deducting- the •amount of an account filed as an offset by the plaintiff iu error from tlie damages awarded by the j ury.
    The damages claimed by the defendant in error were unliquidated, and therefore no tender could be pleaded. (1 Saund. R., 33, note 2.)
   Hemphill, Ch. J.

The appellee contends that, as the damages for which he brought suit were unliquidated, this was not a case for tender, and it did not discharge the defendant from costs. This view we apprehend to be erroneous. It is an established rule that when a misrepresentation is made as to tlie quantity, though innocently, the right of the purchaser, if lie does not abandon tlie contract, is to have what the vendor can convey, with an abatement out ■of the purchase-money for so muchas the quantity falls short of the representation. (Mitchell v. Zimmerman, 4 Tex. R., 82; Sugden on Vendors, p. 291; 2 Story Eq., sec. 779.) This rule is not universal, hut it is general, and was applicable to tlie circumstances of this case, and, in effect, was so found by the jury. There was a standard, then, by which to estimate with precision the amount of reimbursement to which tlie plaintiff was entitled. The sum was iu effect liquidated, as its amount could be ascertained by computation. It was ■a proper case, then, for tender, and would have entitled tlie defendant to exemption from costs had lie also tendered before suit a conveyance to the purchaser. His obligation was on payment to make a good and lawful title to tiie land. The notes had been paid, [.lie condition on the part of tlie purchaser .performed, and it became incumbent on Walling to execute title according to liis stipulation. This lie neither did nor offered to perform, and as justifying his omission alleges that no deed was prepared and tendered to him by the purchaser for his signature. We are not of opinion chat the vendee was under any obligation when lie demanded title to prepare the deed of conveyance. This is the rule in England, and it arose there from the difficulties surrounding their titles. These were so great as to render it necessary to make an abstract -of tlie numerous instruments relating to the title, and these being submitted to tlie purchaser’s counsel it became usual for him to prepare the conveyance. (Sugden on Vendors, p. 247.)

Our titles have not yet become involved in so much difficulty, nor have tlie instruments relating to them increased to such numbers as to make tlie practice in England either convenient or necessary in this country. And it is believed that tlie current of American decisions (though I have no opportunity of examining them) is to tlie effect that where a vendor covenants on payment of tlie purchase-money to give a title to the purchaser, lie is bound to prepare and tender the deed of conveyance. (3 S. & R. R., 228.)

The jury found and tlie court decreed that Availing should make tille. This issue was determined against him, and was sufficient basis on which to adjudge costs to the plaintiff.

There is no statement of facts, and we are not apprised of tlie evidence which was adduced at tlie trial. This may have shown a hard case against .tlie plaintiff, and have justified tlie court iu cxcrcisiug such discretion tus it possessed in mulcting tlie defendant in all the costs.

In equity, in suits for specific performance, prima facie, tlie party who fails in the suit is liable for tlie costs, but as costs in equity lie in tlie breast of tlie court, tlie prima facie claim to costs may be rebutted by the circumstances of the case, and it is for tlie court to decide whether the circumstances are or are not sufficient to rebut the claim. (Sugden on Vendors, 2 vol., p. 23.)

There being no evidence to tlie contrary, we presume a proper exercise of discretion under this rule of equity, as every presumption must be indulged in favor of a judgment, and where there is no statement of facts it must be presumed that everything was proved which was susceptible of legal proof. (3 'Tex. R., 357.)

Had the defendant been vigilant, lie should have moved a reform of the judgment at the term in which it was entered. He appears to have been anxious to avoid litigation and to act justly; but from the facts, as they appear on the record, and from others which must be presumed to exist, we can perceive no mode by which he can be relieved from the burthen of costs.

The remaining' ground it is not deemed necessary to notice.

Judgment affirmed.

Note 91. — Brock v. Southwick, ante 65.

Note 92. — Arnoldv. Williams, 21 T., 413; St. Clair v. McGehee, 22 T., 5; Smith v. Allen, 28 T., 497.  