
    Rutherford vs. Pillow.
    When a valuation is stipulated to take place immediately by valuers designated, if not made until twelve months after, it is not conclusive upon the party who had no notice.
    When a valuation of land is to be made by valuers agreed upon, by comparison with another tract of land, the valuers must have evidence of the identity of the land, other than that derived from the information of the party requesting the valuation to be made. .
    When a valuation is to be made by comparison with the “east half of a tract of land,” the commissioners or valuers ean look only to that half in quantity and quality of acres, and not examine the whole tract to ascertain the average value of that half.
    Rutherford, in August 1817, gave a bond to Pillow to procure him a warrantee deed within twelve months, for the east half of a 5000 acre tract, granted to John Rutherford, on Forked Deer river; or in lieu thereof, another tract of equal value. Consideration is stated to be §1250. The deed was not procured; suit was brought, and damages and judgment recovered- for §7000, at the. April term of the Williamson county court, in 1820. In November 1820, Rutherford filed his bill in chancery, to be relieved from said judgment, and for injunction, &c.; alleging that Pillow, after beginning the suit,' visited him, professed friendship, declared that there should be no advantage taken, &c., and that he beguiled him into a false security, and then took judgment against him for §7000. He only put in his plea, and did not produce evidence which he would have done but for Pillow’s pretences of friendship and fairness. He would have cerlioraried the judgment afterwards, but Pillow apologized; repeated that no advantage should be taken, and received a conveyance of 1000 acres of land, another tract, and gave his receipt therefor, acknowledging that he received that 1000 acres in compliance with and in part payment of the contract, and bound himself to credit on the bond or judgment the value of the 1000 acres, agreeably to the •true intent and meaning of the bond, and the quality as well as quantity of the land: this was in June 1820. Pillow, after it was too late to certiorari, took out execution without crediting for the 1000 acres. Rutherford obtained an injunction, and gave Sanders and Hadley as security. Pillow answers, denying all the fraud, &c., but admits the giving of the receipt for the 1000 acres, and that it was not credited. The cause is set for hearing upon bill, answer and replication, and is heard without proof.
    The court was of opinion there is no fraud shown to have been practised by Pillow, either to obtain the judgment or to prevent the removal of it to a higher tribunal; but it appearing that Pillow received 1000 acres of land afterwards, to be credited on the bond or judgment, according to the true intent and meaning of the bond, and the quality and quantity of the said 1000 acres, it is decreed that the bill be dismissed, so far as it seeks to impeach said judgment at law, but that Pillow be perpetually enjoined from the collection of the value of said 1000 acres from the eleventh of August 1818, with interest thereon until the time judgment was rendered at law; and that that sum be defalcated from said judgment, and that the injunction be dissolved as to the residue; and it is referred to the clerk and master to ascertain the value of the said 1000 acres in 1818, with interest up to the time of giving judgment at law. At the same court, the clerk reports the value of the land and the interest at $1237 50.
    The report was made on the eleventh of February 1823, and not being excepted to, was confirmed on final hearing, and judgment rendered against Rutherford, Sanders and Hadley, for the balance of said judgment.
    In April 1823, Rutherford filed his bill, complaining of the interlocutory decree as erroneous and unjust, and that the clerk’s report was irregular in being made at the same term; that he was absent arid his counsel'absent'; and that Pillow fraudulently procured it to be done; and that the land was valued at too little, and thereupon obtained an order for injunction. Afterwards he filed a supplemental bill, stating that after he obtained said order for injunction, Pillow and he, after various attempts to settle, came to an agreément which Pillow proposed in writing. It was, thafPinson and Williams should, as soon as it could be done, go and examine John Rutherford’s 5000 acre tract, the east half, and also the 1000 acre tract, and say what is the relative value of the two tracts, in order to decide how many acres of Rutherford’s is the 1000 acres worth, and the judgment should be credited therefor, at the price allowed on the trial; or they may say what the 1000 acres were worth in 1818, and that sum should be credited on the judgment; that Rutherford accepted the proposal; that Pillow afterwards issued execution and recov-ed part, and by false representations got Sanders and Hadley to pay him and take judgment over against him; that he was first informed of Pillow’s intention to disregard the last agreement by the executions, but that he then got Pinson and Williams to go on the 1000 acres, and the east half of the Rutherford tract, and value them. They think the 1000 worth 1750 acres of the other tract.
    Pillow demurs to so much of the bill as relates to the interlocutory decree; pleads the final judgment'in bar, averring there was no fraud, &c. and answering as to the matters in the supplement, denying all fraud and false representations, admitting that he made the proposals stated in writing, and .that Rutherford took them and pocketed them, but denies that he accepted them. He only said it was probable that he would accept. Pillow often urged, but never could prevail on him to do or say any thing decisive on the business, until at length he took' out execution, and was partly satisfied. He afterwards got the balance from Sanders and Hadley, who took judgment over against Rutherford’, who never till after that procured Pinson and Williams to go to value the land. That was done without notice to Pillow; the land was shown by Rutherford alone. They were of opinion, from what Rutherford showed them, that 1000 was worth 1750 of the east half of Rutherford’s tract, upon the supposition that it contained a share of the surplus on that side; the surplus was 2500 acres. Rutherford never bound himself to abide by the proposals, and defendant insists that he was not bound to stand by his proposals forever. The cause was set for hearing on bills and supplement, demurrer, plea, answer and replication, and the valuation of Williams and Pinson decreed to be conclusive and binding upon Pillow, and that Rutherford should have a credit for that amount. From this decree the defendant appealed to this court.
    
      O. B. Hayes and J. 8. Verger, for complainant.
    
      F. B. Fogg, for defendant.
   Green, J.

delivered the opinion of the court.

The only objection to the decree in this case, consists in assuming that the valuation of the one thousand acres comparatively with that of the two thousand and fiv e hundred acres, as made by Williams and Pinson, was conclusive. The agreement of the parties stipulated that the valuation was to take place immediately; but instead of that, it was postponed more than twelve months, and was then made at the instance of Rutherford, without any communication with, or notice to Pillow, and without the valuers having any information as'to the boundaries of the tracts to be valued, other than that communicated by Rutherford. They had none of the title papers before them, and they do not pretend to know whether they were shown the tracts in question or not. Their evidence, therefore, as to the identity of the tracts valued by them, with those m controversy, is hearsay from Rutherford, , , , , , , , , . and ought not to have been held as conclusive upon Pillow.

«As to the manner in which the valuation was made, there is no objection. The original contract is not to be understood as a sale of the half of John Rutherford’s tract, taking into view quality and quantity. The stipulation, that the part sold is understood to be “the east half of the above mentioned tract, ” ^conclusive to show that it -was the intention of the parties to divide the number of acres in the tract equally, assigning the east half to Pillow. So Pillow understood the contract, when he made the proposition of the twelfth of June 1823, to have,jt valued. For he stipulates in that paper, that Williams and Pinson were to value “the east half.” If he had understood that he had contracted for an average half of the whole tract, he would have used some language to indicate that they were to ascertain the comparative value of the one thousand acres with the whole, and not the east half only, of John Rutherford’s tract. The construction Pinson and Williams put upon this agreement, was, therefore, the correct one; but because it does not-appear that the lands shown them by Rutherford, and by them valued, were the tracts mentioned in the agreement of the twelfth of June 1823, the decree will be reversed, and the cause remanded to the chancery court, for another valuation to be had, with due notice to the parties.

Judgment reversed.  