
    Nelson v. Matthews and Another.
    Monday, March 21, 1808.
    [3 Am. Dec. 620.]
    Sale of Land in Gross — Deficiency—Fraud in Vendor.— A vendor who conveys a tract of land, with general warranty, as containing by estimation a specified quantity, more or less, when, in fact, his own title-papers call for less than such specified quantity, is hound to make good the difference to the purchaser.
    Same — Same.—A deficiency of eight acres in a tract of 552 acres, is no more than a purchaser who buys for more or less may reasonably expect.
    Same — Same—Measure of Compensation. — where land is sold with warranty, and there is a deficiency in the quantity, the purchaser is entitled to compensation for the value of such deficiency, not at the time when it is discovered, but at the time of the contract.
    Same — Same—Same.—If several tracts of land be sold, as adjoining each other, for a gross sum, and no specification be made, at the time of the contract, of the quality or separate value of each parcel, and there be a deficiency in the quantity of each, the purchaser will be entitled to compensation for such deficiency, according to the average value of the whole tract, and not of the several tracts taken separately.
    On an appeal, taken by the complainant from a decree of the Superior Court of Chancery for the Staunton District.
    Nelson, about the beginning of the year 1785, being at that time and for several years before a resident of Richmond, entered into an agreement with Matthews for the purchase of a tract of land comprehending the plantation whereon the said Matthews then resided, with two surveys adjoining, for the price of two thousand pounds.
    On the 11th of Eebruary, 1805, Matthews executed a bond to Nelson for the conveyance of a title in fee-simple to the said plantation and surveys, describing the plantation as the one formerly purchased by Sampson and George Matthews of Randal Eockhart, and containing 572 acres, more or less, and the two surveys as having been made by Patrick Buchanan, (surveyor,) the one adjoining the said plantation on the north-west; the other on the south-east; “thequantitj’ not known at present, supposed to contain about 200 acres.” These surveys were made the 8th and 9th of Eebruary, 1785, for Nelson himself. On the 15th of November, 1785, a deed, with a general warranty, *was executed by George Matthews and wife to Nelson for the above mentioned plantation, “containing by estimation 572 acres, more or less;” and on the same day another deed from Robert Beverley by Thomas Eewis, his attorney in fact, was executed for the two surveys; one containing 115, the other 39 acres, making in the whole 154 acres. The deed from Matthews and wife to Nelson describes the land as being that which was “conveyed to Sampson and George Matthews from Randal Lockhart by deeds dated the 19th and 20th August, 1762, and by partition from the said Sampson to the said George,” and refers to certain “well known” lines and corners, without designating the courses or distances. The deed of partition referred to, states the above land to contain 572 acres, more or less; but the deeds from Lockhart of the 19th and 20th of August, 1762, only call for 552 acres; making a difference of 20 acres.
    Bonds for the purchase-money were granted by Nelson to Matthews, all of which were discharged, except one for 4001. which was the last that became due.
    Nelson, discovering a deficiency in all three of these tracts, refused to pay the above bond; and judgment having been obtained on it, he filed his bill, stating his ground of equity, and praying for an injunction, which was awarded.
    Matthews and his agent, S. Blackburn, .answered; and having insisted that Nelson had or might have had full knowledge of the lands for which he had accepted deeds, an issue was directed to ascertain those points. But the defendants afterwards agreed to waive the issue, and to confess the fact of Nelson’s non-residence, and that the deeds were not delivered to him in person. They also denied any knowledge of a deficiency in the lands.
    The suit being at issue, commissioners were appointed, by consent of parties, to superintend a survey of the said lands; to note the quantity contained within the lines of the larger tract, also the quantity contained in each of the small surveys, and wherein and to what amount these surveys interfered 'with older rights.
    They were also required to ascertain and report the average value of the land contained in the two small surveys per acre, as well on the 14th of Rebruary, 1785, as on the 4th of April, 1798. The commissioners returned a survey made under their •direction, and reported that the larger tract said to contain 572 acres, was found by actual measurement to contain only 544 acres, shewing a deficiency of 28 acres; (that is, between the actual quantity of 544 acres, and the quantity called Cor in Lock-hart’s deeds to Sampson and George Matthews, of 552 acres, there was a difference of eight acres; and between the said quantity of 552 acres, and that of 572 acres expressed in the deed from Matthews and wife to Nelson, there was a difference of twenty acres, making in the whole a deficiency of 28 acres, as reported by the commissioners.) They further report, that one of tne small surveys described in the title bond as lying on the north-west side of the larger tract, ■contained by actual measurement 44 acres, but it was entirely lost by interfering with older rights; and that the other small survey, described as lying on the south-east side, contained 130 acres, fifty-one of which were in fact comprehended within the lines of the large tract. That the average value of these fifty-one acres was one-fourth higher than the rest of the survey of which they purported to form a part. The average value of each parcel, at the periods above mentioned, was stated as follows:
    On the 14th Reb. 4th Apr. 1785. 1798.
    The plantation or tract said to contain 572 acres. $6 75 $16 66
    Small survey adjoining on the N. W. side, 4 00 12 00
    Small survey adjoining on the S. R. side, 2 25 7 00
    Another order of Court w'as made, on the motion of the complainant, directing the same commissioners to report *the value of the two small surveys at the periods aforesaid, as connected with, and as an appendage to the large tract. The commissioners reported, that, according to the depositions of several witnesses, (who appear to have been called on from their knowledge of the land and supposed judgment in such matters,) the two small parcels of 44 and 51 acres, which were lost by interference, were, in the opinion of the deponents, of an equal average value per acre with the large tract; and that the large tract was reduced one-fifth in its value per acre, by such loss. Considering the smaller survey of 44 acres as a necessary appendage to the large tract, on account of a valuable growth of timber conveniently situated to such parts of it, as were much in want of that article: the commissioners estimated the said smaller tract as worth, on the 14th of Rebruary, 1785, eight dollars, and on the 4th of April, 1798, twenty-five dollars per acre. With respect to the 51 acres of the other survey, lost by interference with the large tract, considering its remote situation from the cleared lands, and its being included in and adjoining the woodland part of the large tract, they saw no good reason for changing their opinion of its value per acre, as stated in their former report.
    At the hearing, on the 12th of April, 1803, the Chancellor pronounced a decree to the following effect: That, the deed from the defendant, George Matthews, to the plaintiff, (Nelson,) calling for572acres, more or less, when Matthews, from a recurrence to his own title papers, had no reason to suppose that more than 552 acres were contained in the survey, Nelson was entitled to a discount against the judgment for the value of twenty acres; but not for the deficiency of eight acres appearing within the lines of the said survey; such deficit not being more than a purchaser in gross might reasonably expect. That Nelson was also entitled to a credit for the smaller survey of 44 acres, which was wholly lost by the interference of older rights, and for 51 acres of the other survey, which were '^included within the lines of the larger tract, inasmuch as the surveys thus lost were made upon lands, for which, at the time, there were existing legal titles, and it was owing to the inattention of Matthews, that those interferences were not discovered before his sale and conveyance to Nelson. That Nelson was moreover entitled to a discount for the taxes paid by him on the 20 acres deficient in the large tract, and on the difference between the quantity called for in the two deeds for the surveys, and the quantity actually held by him in virtue of those deeds ; which taxes were to be calculated from the year 1786 to the year 1790, when the deficiency was discovered by the plaintiff, and the error was or might have been corrected. But the Court was of opinion, that in ascertaining the value of the deficits, their value, at the time of the original contract, and not at any subsequent period, should be resorted to; and that their real and not their relative value should be adopted by the Court. Therefore the first report of the commissioners, in which the intrinsic value of the lost land at the time of the sale was ascertained, without respect to its relative situation, or to the aggregate price paid for the whole tract, on which was a valuable mill and other improvements, none of which appear to have been on the lost land, was considered the just rule of decision. The Chancellor made the injunction perpetual as to 471 dollars 94 cents, being the whole sum for which he considered the plaintiff entitled to a credit, as well for the deficiency of each several parcel of land, according to its intrinsic value at the time of the contract, as" for the taxes aforesaid, and for a small account, (the correctness of which did not appear to have been contested by the defendant,) after an allowance of the then legal interest upon the value of the lost land, as above ascertained, from the first of October, 1788, when the plaintiff’s bond became due on which the judgment had been obtained; upon the taxes according to the principles settled in the decree; and upon the said small account; and dissolved the injunction for the residue. '*Nelson, claiming a credit for a much larger sum, appealed to this Court.
    Wickham, for the appellant.
    There can be no question as to our right to compensation for the deficiency in the land. The only inquiry is, what shall be the measure of that compensation. I shall contend that we are entitled to compensation, not at the date of the contract, but at a subsequent period.
    As to so much of the land called for in the deeds as never existed, there is some difficulty, but as to that lost by prior titles, Nelson is entitled to .compensation at the time when he received the damage. He is entitled to his contract. If the price had depreciated, he must have submitted to the loss; as it has appreciated, he is entitled to the benefit. He can only be compensated by giving him the full value of his contract after the purchase, at which time he sustained the injury.
    In Groves v. Graves,  which was a contract for the delivery of certificates, the Court determined that the standard of value should be fixed on the day when the contract was to have been performed. The ground that the Court went upon was, that after the day of payment had past, the party was not bound to receive the certificates, but might resort to his action. In Reynolds v. Waller,  the Court determined that Reynolds should pay the value of the certificates at the time of the trial; and a distinction was taken between the two cases, in this, that, in the former, there was a contract to deliver the certificates at a future day, but, in the latter, there was no contract, the certificates having been fraudulently obtained by the agent of Reynolds, and a bill was brought by the heirs and administrator of Waller for a specific restitution. Bo in Morris v. Alexander,  the owner of certificates was considered as entitled to the certificates themselves, if to be
    had; if not, their value at the time of the decree. The same doctrine was recog-nised in the late case of Short v. *Skip-with, in the Federal Court; and nothing but the peculiar circumstances of the case induced the Court to fix the value at a different time. The difference, however, between certificates and land is this: The contract cannot be satisfied by other lands,, because there cannot be an identity of situation, &c. But with respect to certificates, if the purchaser be disappointed, he can vest his money in others.
    The next point to be considered is, what should be the standard of compensation. The lands which were lost were wood-lands, rendered peculiarly valuable on account of their being annexed to the old plantation. They had, therefore, a relative value, and should have been estimated accordingly. The Chancellor has allowed trie real and not the relative value; though the term real value is unintelligible, without considering,, at the same time, the relative value. The real value of the land is its relative value; because its value is estimated in reference to its utility. The true injury the person sustained should always be the measure of damages.
    If the value of the land at the time of the purchase be resorted to, what ought to be regarded? The price paid? Surely not. A man may agree to give for a tract of land a much greater price than it is worth. In this case, it appears, from the report of the commissioners, that Nelson agreed to give too much; and an arbitrary standard of their own has been established. According to this rule, and the principle established by the Chancellor, if Matthews had not had a foot of land, Nelson would still have had to pay him a considerable sum of money; because the real value of the land at the time of the purchase would have fallen so far short of the purchase-money. This shews the difficulty and improprietj' of making the price and date of the contract the standard of compensation. [Here Mr. Wickham went into a minute calculation founded on the report of the commissioners, and the testimony of the witnessess, *which stated that the value of the large tract was impaired one-fifth in consequence of the loss of tf»e surveys; and endeavoured to shew that Nelson was entitled to a much larger sum than had been allowed by the Chancellor.]
    Call, for the appellees.
    No deduction ought to be allowed for the twenty acres deficient in the large tract, because the title bond speaks of it as containing so many acres, more or less, and the deed conveys it by estimation only. It is a rule of law, that if an estate be sold by estima-lion, the vendor is not liable for a small deficiency,  If a person wishes an exact quantity, he must contract for it by the acre, in which case he would be entitled to compensation in the event of a deficiency. 
    
    It is clear that no discount ought to be allowed for the surveys. They were made ■on the 8th and 9th of February, 1785, (before the date of the bond,) for Nelson himself ; one contained 39 acres, the other 115. •On the 11th of February, 1785, the bond was entered into. The inference is, that Matthews never saw those surveys; for if he had seen them, he never would have inserted in the condition of the bond, that they contained about 200 acres. Matthews was to convey the land contained in Buchanan’s surveys. If Nelson knew what was in those surveys, and did not disclose it to Matthews, he was guilty of a voluntary concealment, and cannot be relieved in equity. The entries were originally made, but Matthews never had the surveys. Nelson caused the entries to be ■surveyed himself; and obtained a deed from Beverlej', with general warranty, for the quantity contained in them. The condition of the title bond clearly shews, that Nelson took the surveys from Matthews, for better for worse; and if he has been injured, he must resort to Beverley, upon his warranty, for redress; according to a rule of law, that, although in personal things 37ou must resort to the vendor, yet, in real, you must rely on the title papers alone.
    But if any compensation is Lo be made for deficiency, it *ought only to be for 20 acres in the large tract; and that according to the actual value at the time of the contract. The Chancellor has correctly decided, that no allowance should be made for the difference of eight acres between the actual quantity, and that called for in Matthews’ title papers; such deficit being no more than a purchaser in gross might reasonably expect. In that position, he is fortified by the decree of this Court in Quesnel v. Woodlief.  When an action is brought upon the warranty, the plaintiff at law goes upon the ground of future disturbance, and has a right to other lands, <or as much money as will replace those from which he was evicted. But, on a bill in equity, it is like the action for money had and received; and the complaint is, that the vendor has had the purchase-money for a consideration which happened to fail. The only rule which can be adopted, is, to take the actual damage, which is to be estimated by the money paid with interest. You cannot ascertain the relative value of parcels composing an entire tract: you cannot say that so much money was paid for one part of the land, and so much for another. In the case of Calcraft v. Roebuck,  the purchaser came into a Court of Fquity to be relieved on ■account of two acres, which lay in the cen-tre of the tract, and for which the title proved to be bad. The Chancellor thought •that the actual value with interest should be the rule, without regarding the particular situation of the two acres. If the land was really lost on the 11th of February, 1785, that ought to be the period at which damages should be ascertained. If Nelson wants ulterior damages, he must look to Beverley, who warranted the title. Matthews only sold the surveys such as they were.
    Wickham, in reply. The only question in the cause respects the rate of compensation; upon which very little need be said. As to the objection, that Nelson bought the land for so many acres more or less, the law has been long ^settled in this country, upon that point, in the case of Quesnel v. Woodlief and others.  Whenever a man purchases land for “more or less,” he is entitled to the quantity specified, making' a reasonable allowance for small inaccuracies *in the- surveys, and the variation of instruments. Whenever a man sells land in that manner, he holds out to the purchaser an idea that he has title-deeds for that quantity.
    In the case before the Court, Matthews was to make a title not only to the larger tract, but to the two small surveys, supposed to contain 200 acres. All that I contend for, is, that Nelson was entitled to all the land contained within the lines of the surveys, and has a right to compensation for the deficiency. He does not claim for the whole deficiency *less than two hundred acres, but only for that, less than the quantity mentioned in the surveys. If a man sell lands, and describe the boundaries, and there be but one acre within those boundaries from which the purchaser is evicted, there can be no question but he is entitled to compensation.
    It is supposed by Mr. Call, that, because this is a case in Chancery, Nelson is not entitled to damages as if it were before a Court of Haw. Nelson, having a just cause of action, came into equity to be relieved from the judgment at law, and the Court will not compel him to pay the money until compensation be made for the deficiency in the land. Matthews was bound at law, and we are as much entitled to compensation in equity, as if we had been at law.
    
      
       l Wash. 1.
    
    
      
       Ibid. 164.
    
    
      
       8 Call, 89.
    
    
      
       Sugden’s Law of Vendors, 201.
    
    
      
       Ibid.
    
    
      
       See note, next page.
    
    
      
       1 Ves. jun. 221.
    
    
      
       The case above referred to was decided during the period of Mr. Washington’s Reports, but was omitted in his collection. It has been so often inaccurately quoted out of Court, and even in Court has been cited under such different appellations, that it is believed a correct statement of the case, from the record, will be acceptable to the profession.
      Quesnel v. Woonurtuq Rueein and Harrison.*
      *This case is reported and annotated in 6 Call, 218.
      
        November 19,1796.
      
        Order Booli, No. 3, p. 152, MS.
      
      Woodlief, one of the appellees, advertised for sale, the tract of land whereon he resided, called Sion Hill, and described it as containing about 800 acres. Quesnel became the purchaser, at private sale, and agreed tp give the price of four pounds per acre, estimating the tract at 800 acres, which amounted to the sum o f 3,2001. for which he executed his bonds payable at several different periods. The parties had been some time in treaty for the land; Woodlief representing it as held by old title-papers, and reputed, by himself as well as former proprietors, to contain at least 800 acres, and Quesnel believing that it would hold out that quantity. The land was not re-surveyed by Woodlief, either before he advertised it, or sold it to Quesnel. After the sale, Woodlief still expressed his belief that the tract contained 800 acres, and Quesnel accepted a deed for that quantity “more or less.” But, in fact, upon an actual survey, it was found to contain only 608 acres, 1 rood, and 13 poles. Before any survey was made, Quesnel gave a deed of trust upon the same land as containing 800 acres, (without any qualification,) to Harrison as trustee, for the purpose of securing a balance of the purchase-money, part to Woodlief, and part to Ruffin, to whom some of the bonds of Quesnel had been assigned. A bill was exhibited by Quesnel in the High Court of Chancery for an injunction to judgments obtained on some of the said bonds, on the ground of the deficiency in the quantity of the land. The Chancellor, on a final hearing, dismissed the bill; and Quesnel appealed to the Supreme Court of Appeals, where the following decree was pronounced.
      “That the appellee Woodlief, not having surveyed the tract of land in the bill mentioned called Sion Hill, before he advertised the same for sale, or sold it to the appellant, but that, supposing there had been an old survey which he has not produced or referred to. and does not appear in the proceedings in this cause, under which the land had been long held, as he suggested, by the former proprietors of the said land, and estimated by them and him as containing 800 acres, he advertised it as containing about that quantity, and the appellant was thereby induced to purchase it, expecting it would contain that full quantity, and the appellee, Woodlief, having afterwards asserted his belief thereof, occasioned the appellant to accept of a deed for the same as containing 800 acres more or less; and it appearing from the survey made by Robert Turn-bull, and returned to the High Court of Chancery, pursuant to an order of the said Court in this cause made for ascertaining the exact quantity of land in the said tract called Sion Hill, that the same contains only 608 acres, 1 rood, and 13 perches, so that both parties were mistaken in the quantity and number of acres contracted for, the said mistake ought to be rectified in a Court of Equity, and the appellant allowed a deduction from the price agreed by him to be given for the said land for the deficiency in quantity, that deficiency being too great for a purchaser to lose under an agreement for a reputed quantity, notwithstanding the words “more or less,” inserted in the deed, which should be restricted to a reasonable or usual allowance for small errors in surveys, and for variations in instruments; the value of the deficiency when ascertained under the direction and to the satisfaction of the said High Court of Chancery, to be deducted from his bonds for the purchase-money in the hands of the appellees, Woodlief and Ruffin, or either of them, if sufficient to satisfy the same, and if more than sufficient, theinjundiontobe dissolved for the residue, but if not sufficient, the appellee Woodlief to be decreed to refund it with interest,” &c.
      Decree of the High Court of Chancery reversed, and cause remanded to the said Court for a final decree, according to the principles of this decree.— Note in Original Edition.
    
   Wednesday, March 30. The Judges delivered their opinions.

JUDGE TUCKER.

Nelson, who was a.t that time a resident of Richmond, purchased of Matthews a tract, of land in Augusta County, said by him to contain 572 acres, which he held by deed; with a valuable mill and other improvements thereon, together with two surveys adjoining the former tract, the quantity not known at the time of the bargain, but supposed to contain about 200 acres. A deficiency in all three of these tracts being suggested by Nelson, who brought a bill in Chancery to be relieved from a judgment obtained on one of the bonds given by him for the purchase-money, the Chancellor directed a survey; and also an estimate of the value of the two small surveys, as connected with, and as an appendage to the larger tract on the day of the bargain, and also on the day the money became due upon the bond. The commissioners made a special report, by which it appeared that the larger tract contained only 544 acres, and that the conveyance for the same from R. Eockhart to Sampson and George Matthews *was for 552 acres only; that one of the small surveys for 44 acres was entirely lost; and that 51 acres of the other small survey, were in fact comprehended within the lines of the large tract: they then report the average value of each parcel on the days before mentioned; together with their opinion as to the relative value of the small tracts as an appendage to the large one. The Chancellor pronounced a decree that Nelson was entitled to a discount for twenty acres, the difference between the quantity expressed in Hockart’s deed to Matthews, and in that of' Matthews to Nelson; but not for the deficiency of eight, such deficiency not being more than a purchaser in gross might reasonably expect; and that the plaintiff was. further entitled to a discount for the value-of the 44 acres, and 51 acres which ought, to be fixt according to the value at the time of the contract, and not at any subsequent period. And according to their real, and not their relative value; with some farther discounts not contested in this Court.

If the quantity in each separate tract, had been exactly that which the parties supposed at the time of the contract, and, the real value of each tract respectively had at that time corresponded with the valuation by the commissioners, the appellant would have got 572 acres, of the value of 6 dollars and 75 cents each; 44-acres of the value of 4 dollars, and 156-acres, of the value of 2 dollars and 25 cents each, amounting in the whole to 4,388 dollars and 50 cents, the average value of which would be 5 dollars and 68 cents and nearly one half a cent; at which rate I conceive the complainant ought to be allowed a. deduction upon 115 acres, the quantity deficient, and with this amendment, I think the decree ought to be affirmed, in, the same manner as was done in the case of Pendleton v. Vandevier.

It may not be amiss to add, that there appears to have been no actual specification made at the time of the contract, of the quality, or separate value of these-several parcels of land, by the seller to-the buyer. They were represented *as adjoining each other, and Nelson-probably thought the quality of all three the same in general. Upon these grounds I think the average value of the whole, as estimated by the commissioners taken together, is the proper rate at which the allowance for the deficiency ought to-be made; that deficiency arising in part from the interlocking of the smaller tracts, with the larger, as well as from a want of quantity within the actual boundaries of the lands. If indeed there had been the-full quantity of the land in each tract, and Nelson had been evicted of a part of it by a title superior to that of Matthews, the proper estimate of his damages would have been according to the actual value of the land recovered; for then it might have been precisely known: but it is impossible,, in the present case, to ascertain the value, of the deficiency in quantity otherwise than by reference to the average value of the whole.

I concur also in thinking the Chancellor perfectly right in fixing the value of the deficiency, at the time of the contract. Whereas, if the money had been paid, and then the pitrchaser had been evicted by a superior title, I should have thought the value ought to have been fixed, as it might have been at the time of the eviction.

JUDGE ROANE.

The decree of the Chancellor is right so far as it considers the actual value of the lost land, and the time of the purchase, as affording the proper standard for estimating the compensation in this case. If the question of compensation were now submitted to a Jury on an issue of quantum damnificatus, the actual value would alone be regarded, and not the value which may have been set upon the land by the purchaser, or the price he agreed to give for it. So with respect to the time, the date of the purchase gives the rule: the loss existed from that time, and the value of that loss with interest gives the true measure of compensation ; unless indeed there were such special '“'circumstances in the case, as would make it proper to depart from that criterion.

I differ, however, from the Chancellor, in supposing that the average value of the land lost in the several tracts, taken separately, gives the rule. Eor any thing known to us, the lands in question, although contained in three tracts, were considered as one tract, and purchased in gross. This is the more probable, because, as they adjoin, they in truth do form but one tract. Their being held by separate rights makes no difference. I cannot differ this case, then, from the general case of the purchase of a tract of land, in which a deficiency is found to exist, and in which the average value of the whole tract gives the rule.

There may be circumstances in which this general rule ought to be departed from, and in which the loss ought to be considered in a relative point of view. This (in the opinion of the commissioners) is one of those cases; but from the plaintiff's own shewing it is not such a case. He does not state that the lost land, now in question, formed a particular inducement with him to make the purchase; on the contrary, he says, “that he had never viewed the laud, but relied on the information of Matthew as to quantity and boundaries.” He does not even say that he asked or received any information as to quality and description. Not having asked this, he submits, in case of deficiency, to stand upon the general ground. That ground is a safe one, in as much as it gives the average value of an article purchased in gross; whereas, when we inquire into the relative value, we enter into a very extensive field, where much is left to opinion, and in which there are no certain data to go by. I am far from saying, however, that that standard is in no instance to be resorted to. I only say, that, in this case, I see no reason to depart from the general principle. I am therefore of opinion to reform the decree by resorting to the average value per acre of the whole land purchased, and to affirm it for the residue.

*JUDGE TEEMING.

Two important questions seem to arise in this case: 1st. Whether the compensation to be made for the deficiency in the quantity of land, be according to the value in the year 178S, when the contract was made, or according to the value in the year 1798, when the commissioners made their first estimate: and, 2dly. Whether such compensation be according to the real or relative value of the lands lost to the purchaser?

With respect to the first point, I have no difficulty in saying, that I think it ought to be according to the value in Eebruary, 1785, the time of the original contract, and not at any subsequent day; because the compensation ought to be in proportion to the price given for the land.

The second point seems to be attended with more difficulty, and I was at first inclined to think that there ought to be a liberal allowance for the 44 acres of timbered land adjoining the large tract, on the north-west, stated by the commissioners on their first view, to have been worth four dollars per acre in the month of Eebruary, 1785, (the time of the contract,) and which was totally lost to the purchaser; but, on conferring with the other Judges, and on more mature reflection on the subject, — it appearing from the record that the appellant contracted for 772 acres, in the whole, for the gross sum of 2,0001. without notice-ing any improvements on the old tract, or any peculiar advantage to be derived from any particular part of the purchase; and it not appearing that the 44 acres of timbered land was any inducement to the contract ; of which it is probable Nelson was totally ignorant at the time, as the contract was made in Richmond; the most equitable way of doing justice between the parties seems to be to average the deficiency of 115 acres, at 5 dollars and 68 cents per acre, being the average value per acre of the whole land contracted for; which will give 1 dollar and 68 cents per acre for the 44 acres, and 3 dollars and 43 cents per acre for the 71 acres deficient in the survey adjoining the old tract on the southeast, more than they are stated by the ^commissioners in their first report to have been worth in Eebruary, 1785; making in the whole an allowance for deficiency, of the sum of 648 dollars and 7 cents, which is 203 dollars 63 cents more than was allowed by the decree; and with interest at 5 per cent, per annum to the first of April, amounts to 402 dollars 18 cents. I am of opinion that the decree ought to be reversed, so far as it respects the compensation for the deficiency in the land contracted for, and reformed according to the principles of the decree which has been agreed upon in conference.

The following was entered as the decree of the Court:

“This day came the parties by their counsel, and the Court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, that the said decree is erroneous in this, that it allows only the sum of four hundred and forty-four dollars and fortj'-four cents, with interest thereon from the first day of October, 1788, as a compensation for the deficiency of one hundred and fifteen acres in the land contracted for by and between the said parties on the eleventh day of February, 178S, but that there is no other error in the said decree. Therefore it is decreed and ordered, that so much thereof as is above stated to be erroneous be reversed and annulled, and that the residue thereof be affirmed, and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this Court proceeding to make such decree in lieu of that part of the decree aforesaid before reversed, as the said Court of Chancery should have pronounced. It is adjudged, and ordered, anil decreed, that the injunction obtained by the appellant to stay execution of a judgment recovered against him by the appellee Matthews in the District Court holden at Staunton, be made perpetual for six hundred and forty-eight dollars and seven cents, *being the compensation for the deficiency of one hundred and fifteen acres in the land contracted for by the said appellant with the said appellee Matthews, at five dollars and sixty-eight cents per acre, being the average value of the whole seven hundred and seventy-two acres contracted for by and between the said parties; and also for interest on the same at the rate of five per centum per annum, from the first day of October, 1788, the time when the appellant’s bond on which the judgment has been obtained, became due.” 
      
       1 Wash. 389.
     