
    *Tucker v. Cocke, &c.
    December, 1823.
    Sale of Land — Warrant as to Number of Acres. — a conveyance oí a particular tract of land, without a specification of quantity, does not bind the vendor to warrant a particular number of acres, if there has been no false representation, and no concealment of facts within his knowledge: although there may have been an expectation in both partiés, founded on documents and other evidence known to both, that the number of acres is greater than it turns out to be, upon a subseq uent survey.
    This was an appeal from the Lynchburg Chancery Court.' The case was this:
    Tucker and Coles purchased sundry parcels of land of Edmund B. Norvell, executor of Thomas Norvell, deceased, and Ann 'Norvell, his widow. In the deed which was executed for the purpose, the land is described as “all the land lying upon Pig and Staunton Rivers, in the counties, of Bedford and Pittsylvania, and all the title, whether legal or equitable, thereto, which the said Thomas Norvell acquired, by deed from Wilson Allen and Edmund W. Rootes.” Tucker purchased three undivided fourth parts of the said land, and Coles purchased one undivided fourth.
    The negociation which ended in the foregoing conveyance, was commenced in the life-time of Thomas Norvell, *by a letter from Tucker to him, proposing to purchase the said land; and T. Norvell having died before the letter was answered, his executor, Edmund Norvell, replied to it, informing Tucker that the land was for sale; that Jesse Burton of Campbell county, was fully empowered to sell, to whom he refers him for particulars; and apprising him that there is a suit in the Court of Appeals respecting the land.
    In another letter, E. Norvell informs Tucker, that he is still disposed to sell, and that he would be glad to hear from him, “stating the price and terms on which he is willing to purchase.”
    A written agreement was entered into on the 6th of January, 1818, between the executor, E. Norvell, and Tucker, by which ' it is stipulated that the former has sold to the latter “a tract of land lying on Pig and Staunton Rivers, in the counties of Bed-ford and Pittsylvania, containing, by estimation, ten or twelve thousand acres;” and Tucker agrees to pay for the said land, twenty-seven thousand five hundred dollars; payable one third on the 1st of January, 1819; another third on the 1st of January, 1820; and the remaining third on the 1st of January, 1821; with a deed of trust on the land, to secure the payments. Norvell only stipulates to convey the interest vested in T. Norvell, and to warrant the title against all persons claiming under the said Thomas Norvell.
    Coles, though not a party to the written agreement, was a partner in the purchase to the amount of one fourth, as has been mentioned above.
    Three days after this contract, the deed was executed to' Tucker and Coles, in their respective proportions, as before described; and they thereupon executed their bonds; Tucker giving three bonds, with Coles his security, for three fourths; and Coles giving three, with Tucker his security, for one fourth. They also executed a deed of trust, according to the conditions of the agreement. These bonds and deeds of trust were afterwards assigned to the ap-pellee, Cocke.
    *Tucker paid two of the bonds; but, having had a survey of the land, which induced him to believe that there was a deficiency in the quantity, he applied to Cocke to make a deduction from the purchase money. This proposition was refused by Cocke; and Tucker exhibited a bill to the Lynchburg Chancellor, Making Cocke, Norvell the executor, and the trustees, defendants, praying that a proper deduction might be made for the deficiency of. land, and that the defendants might be injoined from proceeding on the last bond, and the deed of trust.
    In his bill, Tucker relies upon the terms of the written agreement, executed before the conveyance, which 'States that the lands were supposed to contain from 10,000 to 12,000 acres. He states, that in the negociation, the discussion of the parties turned principally upon the price and terms of payment, and the title, then contested, by the executors of David Ross; but, that the quantity of the land was taken for granted to be from ten to twelve thousand acres and upwards; that no specific quantity, was mentioned in the deed; but, that this unusual circumstance was noticed and objected to by the complainant; but, after some consideration, the objection was deemed unimportant, and the deed was executed in its present form; that he afterwards had a survey made of the said lands, and they fell short more than two thousand acres of the quantity they were supposed to contain, by both parties, at the time of their agreement; that when he applied to Cocke to allow a deduction in the price, on account of the said deficiency, the latter insisted that the complainant purchased the land in gross, and not by the acre; that although the purchase was in gross and no particular quantity was warranted, yet, that both parties, relying that .the land had been previously conveyed, as containing about 10,000 acres, and consisted of old surveys, and upon the general reputation respecting the quantity of the said land, confidently expected that the real quantity would considerably exceed the estimated quantity; that this belief operated *on both parties in making the bargain; that the complainant is persuaded, that the said Edmund B. Norvell would not have asked so much, if he had known the real quantity; and it is certain that the complainant would not have given so much, especially as he knew he was purchasing a title which was then contested by the executor of David Ross, whose right and interest in the said land, the said Coles and the complainant have since purchased for the sum of $7,000; that upon investigation of the title papers, he cannot discover that the said David Ross, (whose title the said Thomas Nor-vell had purchased under a deed of trust,) ever had title to as much as 10,000 acres; that Thomas Norvell never paid taxes for more than 9,537 acres, which facts have come to the knowledge of the complainant since his purchase; that he had no better opportunity of knowing the quantity of the land than the said Norvell, as he lived 30 or 40 miles distant, and had never seen it before his purchase; and although he had been counsel in an action of ejectment brought by Thomas Norvell against David Ross, to recover part of the said land, yet no title papers were necessary in the said action, but the conveyance of the said Ross to his trustees, and from them to Norvell; and he does not recollect that he examined even these, till some time after his purchase.
    The Chancellor denied the injunction, hut it was afterwards awarded by a Judge of the Court of Appeals, to restrain'the trustees from selling, to the amount of $5,000 of the principal debt, with interest.
    Edmund B. Norvell, states in his answer, that when he entered into the written agreement, he had no knowledge of the quantity of the land in question, having never seen any of the title papers relative to it, and having no knowledge of the quantity of land, for which his brother had paid taxes, nor what was the amount estimated on the Commissioner’s books; but, that all that he had learned on the subject, was from vague report: that he had understood that his brother had purchased the land at the estimated "'quantity of 10,000 acres; and he had heard it as the opinion of others, that the tract would hold out more than 10,000 acres; but, whether it would exceed that quantity, the respondent had no means of judging: that he does not admit that, in the negociation, it was taken for granted, that the quantity of laud was from 10,000 to 12,000 acres; and he is confident that no such thing was mentioned at the time: that he does not admit, that a deficiency in quantity was never contemplated by the parties, and therefore not provided for; because, although the respondent did expect that there would be found more than 10,000 acres in the tract, yet, such was the vague and unsatisfactory information on which they both acted, that it was certainly in the contemplation of the respondent that there might be a deficiency, and he thinks it must have been in the contemplation of the complainant also; and he is confident that both parties intended to make provision for such deficiency, and believed that they had done so, by a contract for a sale in gross, whereby the purchaser took the risque of quantity: that the contract was written by the complainant, and the expression that the tract of land contained “by estimation, ten or twelve thousand acres,” was selected by himself, and •founded on nothing which had passed during the negociation, unless upon the great vagueness and entire uncertainty of the quantity of land sold, and was regarded by the respondent as an evidence that no definite quantity of land was intended to be stipulated for: that, by the recital of the deed from the trustees of Ross to Thomas Norvell, (which the respondent had never seen till after his sale to the complainant,) it was stated that the tract was supposed to contain 10,000 acres: that the complainant. had been employed as counsel in a suit concerning a part of the said land, in which tHe title papers must necessarily have passed under his view: that the respondent having refused to warrant the title, except against his testator, and those claiming under him, the attention of the complainant was particularly attracted to the title of the land, and, of course, *to the title papers: that the respondent considered that the sale made by him was a sale in gross, whereby the purchaser was to take the whole risque of quantity, and was to pay the whole purchase money, whether the tract held out much or little, and that whatever excess was found in the quantity, the plaintiff would be entitled to it without paying more than the stipulated price: that the exigencies of T. Norvell’s estate required an immediate sale of the land, and in such manner as to leave no ground for controversy about the payment of the purchase money: that, in consideration of these circumstances, the respondent agreed to take less for the land, than he would otherwise have taken, and much less than his testator held it at in his life-time: that, if the objection was ever made by the complainant, that no specific quantity was ever mentioned in the deed, as stated in the bill, his relinquishment of it afterwards proves that, in the opinion of both parties, the purchaser took the risque of quantity: that he had no confident belief, as the bill states, that the real quantity would considerably exceed the estimated quantity of land, as he had no data on which to form a judgment: that he believes that, during the negociation, he did express to the plaintiff the opinion, that the tract would hold out more than 10,000 acres; but he did not profess to give the complainant any information on the subject, but only founded this opinion on facts, and the opinion of others, concerning which the respondent knew more than himself: that he does not know whether his testator paid taxes for as much as 10,000 acres, having never seen the documents in relation to that subject, before the sale: that, for these reasons, he does not think that the complainant is entitled to any deduction; but, if he is, it can only be for a deficiency of the land below 10,000 acres.
    Jesse Burton states, that he had frequent conversations with Tucker and Edmund B. Norvell, during -their negociation for the land in question, and he understood that Tucker purchased, just as it stood, taking on himself all *risque as to quantity as well as title: that, from the best information he could collect from the neighbors, it appeared to be their opinion, that the land would probably hold out 12,000 acres; which opinion the witness communicated to both parties: that those neighbors did not state any facts upon which this opinion was founded, except the immense boundaries of the land: that, before the sale, the witness urged E. B. Nor-vell to ask a higher price than he seemed disposed to take, and his reply was, that he wished to wash his hands of it, and have nothing more to do with it: that he was the agent for leasing the said land, and paid the taxes: but that the plaintiff never enquired of him, upon what quantity he paid taxes, as well as he recollects: that, he is under the impression that several conversations'took place, in his presence, between Norvell and Tucker, in relation to the said land, before the sale; and he does not recollect that a less quantity was ever contemplated, than 10,000 acres.
    James C. Moorman states, that he understood from Tucker, that he was to take the interest of Norvell in the estate, supposed to contain 10,000 acres, more or less, and to give $37,500: that he was anxious to become a partner in the purchase, and should have considered himself as taking the risque of quantity: that he had offered Norvell $35,000 for the land, with general warranty; but that the latter refused, saying that he only intended to sell his testator’s interest: that the parties spoke of 10,000 acres, but, it being an old survey, they thought it would hold out more.
    The deed, from the trustees of Ross to T. Norvell, conveys the land, as “being supposed to contain 10,000 acres.” _
    _ The Chancellor dissolved the injunction; and an appeal was allowed by one of the Judges of this Court.
    *Leigh and Call, for the appellant.
    Johnson and Wickham, for the ap-pellee.
    On the part of the appellant, it was admitted, that the deed from Norvell to Tucker contained no specification of quantity, and therefore the appellant must depend upon extraneous evidence. That such evidence is admissible, is proved by the cases of Quesnell v. Woodlief, 3 Hen. & Munf. 173; Jolliffe v. Hite, 1 Call, 301; Nelson v. Matthews, 3 Hen. & Munf. 164. But, it would be improper to resort to parol testimony to explain the intention of the parties, while there is the more authentic evidence of a written contract under seal. Confining ourselves, therefore, to this document, we find that the land was conveyed as “containing by estimation ten or twelve thousand acres.” The parties contemplated a sale of land, which was to amount to at least 10,000 acres. Even if the expression “more or less” had been used, the cases of Quesnell v. Wood-lief and Jolliffe v. Hite, prove that such expression would only cover a small deficiency, not such an enormous one as occurs in this case, as 1,085 acres, according to the lowest estimate, or 1,673 acres, according to the highest. Nelson v. Matthews, confirms this principle. The case of Hull v. Cunningham, 1 Munf. 330, proves, that a mistake as to the boundaries of land will be a good ground for relief. It is a well known, principle, that when the vendor’s own title papers call for a less quantity than that which he sells, the ven-dee shall be relieved. Duvals v. Ross, 3 Munf. 390. The deed from the trustees of Ross to T. Norvell, states that the land was supposed to contain 10,000 acres; and, therefore, E. Norvell the executor was guilty of a constructive fraud in stating the amount in the written agreement, at ten or twelve thousand acres. Gross negligence is equal to intentional fraud; and if E. Norvell did not take the trouble to examine the deed, by which his testator held, he cannot protect *himself by such culpable neglect. Where there is a mutual mistake, a Court of Equity will grant relief. 13 Ves. 135, 437. Contracts of hazard are not to be encouraged; as they are, in truth, nothing more but a species of gambling. 1 Anstruth. 64; 10 Ves. 309. Here the parties never treated for less than 10,000 acres. The deed to T. Norvell called for that quantity; and it was the duty of his executor not to sell it for less. He accordingly states it at that quantity in the written agreement; but goes further, and excites an expectation, not' justified by his title papers, that it may contain 13,000 acres.
    As to the depositions of Moorman and Burton, they are inadmissible. Parol evidence cannot be received, to explain a written contract under seal, except in certain specified cases, none of which apply to the present case The only question is, whether, under the words of the contract, the vendor sold any precise quantity, or made a representation, which turns out to be untrue. But, these depositions, if admitted, are very far from supporting the appellee’s pretensions. Moorman only proves a contract for 10,000 acres, more or less. It has been often decided, that these words only cover a small deficiency in quantity. As to Burton’s deposition, he gives his inferences instead of facts. His-opinions are formed upon Norvell’s representations.
    As to the presumption of information in Tucker, from his vicinity to the land, and from his being employed as counsel in an action of ejectment for part of this very land, the first is unfounded in fact, and the other is refuted by Tucker’s declaration in his answer, that the suit in which he was engaged as counsel, did not require any other title paper than the deeds from Ross to his trustees, and from them to Norvell; and, that in point of fact, he had never seen any other title paper. _
    _ For the appellee, it was said, that it appeared by the bill of the appellant himself, that he had no shadow of right to a decree in his favor. By his own statement, the contract *was a bargain of hazard, by which he took the chance of loss, if the land should prove deficient; and, of gain, if there should turn out to be an excess. The bill admits that Tucker bought the land in gross, it is not pretended that Norvell knew more than Tucker about the land. A deed was executed without any specification of quantity. This omission was objected to by Tucker before the execution of the deed; but, after some discussion, it was waived, and the deed suffered to remain without any mention of the number of acres. And yet, the appellant contends, that the ap-pellee warranted a certain quantity; by which, he would have the benefit of any excess, while the vendor would not derive advantage from any deficiency. Such a contract would be highly improbable in any man, and much more so in an executor, who was to derive no personal benefit to himself, and miglit sustain a personal loss.
    But, it is contended, that we may resort to the written contract to explain the deed, while we are precluded from relying on the parol evidence. But, the contract itself, cannot be resorted to, upon the mere ground of variance between it and the deed; because, in that case, it will be presumed that the variance was intentional, and that the parties thought fit to change the terms of the contract before the execution of the deed, as is clearly proved by the decisions respecting marriage articles. Legge v. Goldwire, Forrester 30; Fearne’s Co lit. Rein. 4th edit 134; 1 Foub. 190, n. p.
    If, however, we resort to the written contract, it proves nothing but a sale in gross. It describes the land as a tract of laud “containing by estimation 10,000 or 13,000 acres;” that is, the "Same land that T. Norvell purchased of the trustees of Ross; and, that Norvell, the executor, is only to convey the interest vested in the said T. Norvell to said land, and to warrant the title against all persons claiming under the said T. Norvell. These expressions can convey no other meaning than that of a sale in gross, without responsibility in the vendor for any defi-cieucy, *and without right to gain by any excess. The vagueness of the quantity mentioned shews, that those expressions were mere terms of description, and not conditions of the agreement.
    But, if we go beyond the deed, we are at liberty to look into the parol evidence, as well as the written agreement. All the cases which have been cited on the other side, prove, that there is no exclusion of parol evidence, if a proper case -made out for admitting evidence extraneous to the deed. If the depositions are admitted, they place the subject beyond doubt. Burton proves that he was present during the negociation, and that he understood the contract to be such, that Tucker took the risque of quantity as well as title. Moor-man’s testimony confirms Burton’s in this particular, and proves Tucker’s declaration, that he bought the land for more or less. When these words are coupled with the phrase by estimation, they amount to a sale in gross. A mistake in both parties, as to a matter of opinion, has never been considered a ground for relief. There is no case of a bargain of hazard made upon equal terms, where the losing party has been relieved. Tn most of the cases, the vendor lias more information than the ven-dee, and either makes a false representation, or suppresses’ that which he ought to communicate; but., in this case, Tucker had at least as much information as Norvell, if not more. The parties in this case both speculated on the probability of an old survey being short of the actual quantity. Their bargain was formed on the idea of this uncertainty. The grounds of opinion were open to both. No fraud, no suppression of facts can be imputed to either. It was, in short, like the ordinary case of insurance, where the event is doubtful to both parties.
    The case of Jolliffe v. Hite, 1 Call, 301, is in strict conformity with these ideas, and establishes the principle, that in a sale in gross, the parties take the risque of quantity; and, that in such a bargain, the words more or less cover any deficiency, however great. Indeed, in a sale *in gross, those words are superfluous, the contract implying the same thing without them.
    Nelson v. Matthews, 3 Hen. & Munf. 164, is not applicable to this case. That was the case of á sale of land as containing a certain number of acres, when the vendor’s own title deeds called for less than such specified quantity. The case did not turn on the words more or less, but upon the constructive fraud.
    The case of Hull v. Cunningham, l Munf. 330, is no authority against the appellee. That was a sale in gross, and a mistake was committed as to the boundaries of the land. Relief was very properly granted to the purchaser in that case, because he had bought a particular tract, and an error having been committed as to its boundaries, he could not get the specific thing he had purchased.
    As to the case of Quesnell v. Woodlief, 3 Hen. & Munf. 173, it is incorrectly reported. It turned on the ground of fraud. Quesnell was a Frenchman, ignorant of our language, customs and laws. The vendor sold by the acre. He represented that there was an old survey, that, called for a certain number of acres, which was not true. On the ground of these circumstances of imposition and false * representation, Quesnell obtained relief. But, here it cannot be pretended that Norvell made any false representation.
    The case (>f Duvals v. Ross, 3 Munf. 390, simply affirms the principle of Nelson v. Matthews.
    The case of Bedford v. Hickman, 3 Munf. 294, (reported in Judge Roane’s opinion in Duvals v. Ross,) is also a case of constructive fraud; the vendor having conveyed land as containing a greater number of acres than his title deeds warranted.
    Nelson v. Carrington, 4 Munf. 333, was a sale of land by the acre, and therefore not applicable to the present case.
    Fleet v. Hawkins, 6 Munf. 188, belongs to that class of cases which affirm, that a sale in gross does not bind *lhe vendor to convey a certain number of acres, even although a number of acres be mentioned, by way of description.
    As to tlie taxes, Norvell avers in his answer, that he did not know their amount; and no man consults Sheriffs’ receipts to ascertain the quantity of his land.
    December 4.
    
      
      Sale of Land —'Oeficiency—Mutual Mistake — Equitable Relief. — Many notes on this subject have been written in this series of reports and the cases citing the principal case on the point have been collected therein. Bee, citing principal case, foot-note to Hull v. Cunningham, 1 Munf. 330; foot-note to Russell v. Keeran, 8 Leigh 9; foot-note to Pendleton v. Stewart, 5 Call 1: foot-note to Quesnel v. Woodlief, 6 Call 218: Blessing v. Beatty, 1 Rob. 287, 299, and foot-note: Allen v. Shriver, 81 Va. 174: Fearon, etc., Co. v. Wilson. 51 W. Va. 30, 41 S. E. Rep. 139: Crislip v. Cain, 19 W. Va. 509, 514, 518, 537. In this last case, Judge GreeN, who delivered the opinion of the co urt, made an exhaustive review of the Virginia cases on the subject and criticises the decisions therein. The conclusion reached by the court in this case was that where there is no fraud, concealment, or misrepresentation in the vendor, but simply an innocent, mutual mistake as to the quantity of land, in which neither party is more to blame than the other, and the sale is a sale in gross, there can be no abatement of the purchase money because of a deficiency in the quantity.
      As a case in which equitable relief was denied, though there was a deficiency in the quantity of land sold, the principal case is cited in Caldwell v. Craig, 21 Gratt. 137; Camp v. Norfleet, 83 Va. 381, 5 S. E. Rep. 374; Farrier v. Reynolds, 88 Va. 146. 13 S. E. Rep. 393.
      Contrae! — Rescission—Mistake.—it is well settled that, though there be no fraud, or default on either side, yet the mutual error of the parties, if that error be a matter which is the cause of the contract, that is, in the substance of the thing contracted for, is a good ground for rescinding even an executed contract. Glassell v. Thomas, 3 Leigh 125. citing principal case. Where there is an agreement for the purchase of an estate, and the purchase money has been paid, if it turns out that the estate was the vendees’ the court will order the purchase money to be refunded. Thompson v. Jackson. 3 Rand. 507, citing the principal case as laying down the doctrine.
      See further, monographic note on “Contracts” appended to Enders v. The Board of Public Works, 1 Gratt. 364.
      Same — Coiaytriaction—Declarations oi Parties. — When the language of a written agreement is susceptible of more than one interpretation, that is to say, is on its face ambiguous, the courts will look to thesur-rounding circumstances existing when the contract was made, at the situation of the parties and the subject matter of the contract, and will sometimes even call in aid the acts done by the parties under it as affording a cine to the intention of the parties; but the court never resorts in such a case to the verbal declarations of the parties either before, at the time or after the execution of the contract to aid it in'giving a construction to its language. Crislip v. Cain, 19 W. Va. 483, citing principal case. See further, on thus subject, foot-note to Midlothian Coal Mining Co. v. Finney, 18 Gratt. 304.
    
   JUDGE GREEN,

delivered the following, as the unanimous opinion of the Court:

If the appellant, provided he had not accepted the deed, would have been entitled to the relief for which he asks, his acceptance of the deed ought, not. to preclude him from claiming it now. The mistake in the quantity of the land, was not, and could not be ascertained, until after the execution of the deed. That was executed only three days after the execution of the contract. The deed may be evidence of the then understanding of the parties, as to the terms of the agreement, but not a bar to relief, if a proper case for relief in other respects, were made out.

Whether the circumstances of this case would or would not authorise the admission of parol evidence to explain the written agreement, it is unnecessary to decide. Tf the written contract be mistaken or equivocal as to its terms, the parties may explain it according to their real and original intention, either by a new instrument of writing, or by their admissions of record. The contract in this case was, upon its face, equivocal, and of doubtful construction. But, the appellant’s bill states the real terms of tli’e agreement, to the same effect as the parol proofs in the cause. It states, that “both parties, relying that the lands had been previously conveyed as containing about 10,000 acres, and consisting. of old surveys, and upon the general repudiation respecting the quantity of the said land, confidently expected that the real quantity would considerably exceed the estimated quantity, and that this belief operated on both parties in making the bargain;” and that “during the whole negociation for the purchase, which continued several *days, the . .discussions of the parties turned . principally on the price and terms of payment, and especially the title, which was then controverted by the executor of D. Ross; but that the quantity of land was taken for granted, to be from 10 to 13,000 acres, and upwards; and that a deficiency was never contemplated by the parties, and, consequently, was not provided for;” and that “his purchase was in gross, and no particular quantity was warranted.” This last declaration is equivalent to an assertion, that the purchase was not by the acre, or of any particular quantity of land; but of a tract of land in bulk, for a price in gross, upon the belief of both parties, that it would turn out 10 or 13,000 acres, or more; but, without regard to what it might actually turn out to be, and without contemplating a responsibility of either party, in case of an excess or deficiency. For, a sale by the quantity would have been in effect a warranty on the part of the vendor, of the quantity sold. This accords with the cotemporaneous construction given by the parties, in executing and accepting a deed for the entire tract of land, without the specification of boundaries or quantity. If 10 or 13,000 acres of land had been the subject of the contract, and the quantity had been considered as material, it would have been stated in the deed; the object of the deed being to convey what had been sold. The written contract is fairly susceptible of the same construction. If quantity was the real object.of the purchase and sale, although the parties had not the means of ascertaining that truly, they would have stated, upon conjecture, a specific quantity; so as to afford some rule for the measure of compensation for the deficiency or excess, when ascertained. The indefinite expression of 10 or 13,000 acres afforded no such rule, and shews that the subject of quantity was not really in the contemplation of the parties, as one of the terms of the contract. It was an expression, apt enough as one particular of the description of the “tract of land” sold, and was probably introduced for that purpose only. This conclusion is warranted by the *terms of the contract, and is rendered certain by the admissions in the bill. The purchaser took upon himself the risque of quantity and title; and although both parties were influenced, in their agreement as to the price, by the belief that the tract of land contained more than the estimated quantity, as stated in the conveyance from Ross’s trustees tjo Norvell; yet, the hazard of loss to one party, in the event of an excess, and to the other, in case of a deficiency, which, although not expected, was possible, would also influence the parties in fixing the price. It cannot be known or presumed, that if Tucker had insisted, that Norvell should warrant that the tract contained 10,000 acres, he would have consented to do so, upon any terms, or that he would have taken the price which he agreed to take, upon the contract in question.

The estimation of the quantity was made by both parties, upon the same facts, which were equally known to both. Norvell did not take upon himself, to make any affirmation or representation in respect to quantity. He only declared his real opinion, founded upon the very same information which Tucker had, and in which the latter concurred with him, • without being influenced by the opinion of the former. He concealed no fact within his knowledge, which could, in any degree, influence that opinion. He had not seen the receipts for taxes, and he was guilty of no negligence (if that were material) in not searching for them, and examining them, as a means of ascertaining the quantity. The source of information on that subject, which he would naturally and reasonably resort to, was,, the conveyance under which his testator claimed; and being informed that the conveyance called for about 10,000 acres, he had no motive for further enquiry; and if he had, he could not have expected any thing like accurate information, from the Sheriff’s receipts for taxes.

This was, therefore, a contract of hazard, without any fraud, concealment, misrepresentation, or negligence, on *the part of the vendor. The error in respect to the quantity of land, was mutual, and was not in relation to the substance of the thing contracted for, but in relation to the very hazard contemplated by the parties. The question is, whether the disappointed party is, in such case, entitled to relief; and this was the question which the appellant, with perfect frankness, intended to submit to the judgment of the Court.

There are cases in which the mutual error of the parties, without default in either, may be a just ground for rescinding a contract. As, if the error be in a matter which is the cause of the contract, that is, in the substance of the thing contracted for, so that the purchaser cannot get what he bargained for; as in the case of a purchase of military lands on Paint Creelc, stated to be located under specified warrants, and the warrants were located elsewhere; and of the purchase of an obligation at the risque of the purchaser, and the paper turned out to be forged, or the ob-ligor to have been previously discharged from the obligation, under the statute of bankruptcy. In such cases, the contract ought to be vacated, even if it had been executed; and, if both the parties, in the first case, verily believed that the warrants were located on Paint Creek; and, in the other, that the obligation was genuine and the party bound by it; the object, in the first case, being to buy lands on Paint Creek; and, in the other, to buy a valid and subsisting obligation, the error would go to the substance of the matter contracted for. Chamberlayne v. Marsh, 6 Munf. 283; Armstrong v. Hickman, Ibid. 287. But, if in che one case, the warrant had really been located on Paint Creek, and the parties had both been of opinion, from the general character of lands on that Creek, that the lauds were of great value, and it had turned out that they were of very little value; or, if in the other, the obligation had been genuine and still binding upon the obligor, and both parties believed that he was in affluent circumstances and able to pay, and it turned out that he was, at the time of the contract, utterly insolvent; *the purchaser, in neither case, could have relief, since he has gotten that which was the cause of the contract, and the error was in relation to the very hazard, which the purchaser took upon himself. If relief could be given in such a case as the case at bar, a fortiori it should be given, if the vendor knew of the deficiency and concealed it. So that, in both cases, when the vendor knew, and when he was ignorant of the deficiency, relief being given, there could no longer be a contract, in which a purchaser could fake the risqtie of quantity effectually upon himself. The Court of Appeals have uniformly recognized the validity and obligation of such a contract, and in all cases in which they have given relief, it has been founded on circumstances either of fraud, misrepresentation or concealment; or mistake in part, or in whole, in relation to the substance of the thing contracted for. It is possible, that the case of Quesnell v. Woodlief, 3 Hen. & Munf. 173, does not fall within this observation; but, the grounds of the judgment in that case are so uncertain, some of the Judges who decided it, the Reporter and the counsel on both sides, who argued the cause, differing so materially in their statements of the reasons upon which the judgment was founded, that it cannot be considered an obligatory authority to the point now under consideration; and, if it were so considered, it has been repeatedly overruled.

The Court is unanimotisly of opinion, that the decree is right and ought to be affirmed.  