
    James Barkley, Jr. ads. Hugh Barkley.
    
      Land ivas sold by the sheriff, by order of court, to effect a parti« tition; held, that in an action on the bond given for the pur~ chase money, the purchaser might set up by way of discount, a deficiency of the quantity which the land had been represented-io contain,
    
    Robert Barkley, who had become by purchase interested in a certain tract of land, of which John Miller deceased died seised, instituted in the court of common pleas for Fairfield, procedings in partition against Jane Miller, widow of said John Miller and some of his heirs at law, to divide the same. On the return of the writ of partition, the plaintiff, as sheriff of the district, was directed by order of the court, to sell the said tract of land at auction, for the benefit of the persons interested, ou a credit of 12 months. On the first Monday in January, 1820, plaintiff offered said tract of land for sale, and the defendant became tbe purchaser at sis dollars per acre. The land was represented to contain four hundred acres, in conformity to the quantity set forth in the procedings in partition, and platt thereunto annexed. After the sale, the defendant gave his bond for the purchase money, deducting the costs of suit, which he paid down. After the sale, defendant acquired by purchase the interest of six shares in the said bond, leaving only the widow’s share and one of the heirs unsatisfied; and before the commencement of this action, paid these claimants their respective shares, after deducting their proportion of a certain quantity of land taken from defendant’s purchase by elder grants.
    John Hollis, the real plaintiff in this action, purchased one share from one of the heirs of John Miller, and caused this action to.he brought against defendant on his bond, in order to recover the amount of said share. Defendant pleadec^.raorc est factum and payment, and gave notice of a discount of 55 acres of land, taken from the tract of land by older grants, Ón the trial of the case, defendant offered to prove his discount; also, that he had fully satisfied six of the heirs of the said John Miller, for their interest in said bond; and that he had fully paid up, before tbe commencement of this action, the -widow and other heir’s interested in said bond, deducting their proportion of the quantity of land taken off by older grants. The presiding judge however refused' to permit the defendant to go into evidence of his discount, on the ground'that as the defendant purchased at sheriff’s sale, the parties interested in the bond were not bound by the sheriff’s representations made at the sale, and that the rule of caveat emplor was a bar to such a defence.
    The jury found a-verdict for the plaintiffs for the sum of ‡ , the amount of Hollis’ claim.
    The defendant moved the constitutional court for a new-trial, upon the ground, that the caurt refused to permit the defendant to'give in evidence, under his notice of.discount,. the deficiency in quantity of the land purchased.
    
      Clarke, for motion.
    
      Jd(.arson, and Mott, contra.
   The opinion of the, court, was., delivered by

Mr. Justice Richardson.

In this case, the sheriff had sold the land as the mere-agent of'the parties .concerned in the distribution of the estate; and'tlie purchaser stood upon the footing of other purchasers in general', and not m the situation of purchasers at sheriff’s sale. In this instance, the- sheriff "sold the land for the distributees, without knowledge of the premises, as an- auctioneer or other agent would have done; and the purchaser has the same rights that he would have had in purchasing directly from the heirs at law. But comment is unnecessary, as the case is completely vritimi the principle decided’in the case of Tunno, vs. Fludd; 1 M‘C. 121. In that case, Fludd purchased from the commissioner in equity, selling for certain parties interested in the land; and the court held that any deficiency in the quantity of the land might be given in evidence byway of discount against the, amount of purchase money. The motion is therefore granted;

Johnson, Colcock, and Ganti, Justices, concurred.  