
    *Weaver v. Carter.
    January, 1839,
    Richmond.
    (Absent, Brooke, J.)
    Sale of Land — Sale in Gross. — By written articles, A. agrees to sell and B. to purchase a tract of land, “bounded as expressed in the survey made by C. K. and estimated by the said C. K. at 1022%, acres; ” for which B. is to pay 25568 dollars 75 cents. This price is the exact result of the specified number of acres at 25 dollars per acre. Yet Held, upon the evidence, that the contract was for the sale and purchase of the land in gross, and not by the acre.
    Same — Sale by Survey — Allowance for Inaccuracy’.— After a sale and purchase of land by the acre, a survey made shewing 995 acres, and the contract executed by conveyance and payment according to the survey, a bill is filed alleging the quantity of the land to be but 974 acres, and another survey being made, the quantity appears thereby to be a few acres less than 995. Held, nevertheless, that equity will not decree compensation to the vendee; some allowance being reasonable for the inaccuracy inherent in the process of surveying.
    In March 1828, Jacob Weaver exhibited his bill against William F. Carter in the superior court of chancery holden at Fredericks-burg, setting forth, that in 1822 he contracted to purchase of Carter a tract of land in Fauquier county, then estimated to contain 1022% acres, at the price of 25 dollars per acre ; and the contract was reduced to writing on the 20th of November 1822, and signed and sealed by the parties. That although the written contract did not expressly mention that the complainant was to pay 25 dollars per acre according to survey, still, such was the understanding and agreement between the parties, as was necessarily inferri-ble, he conceived, from the contract itself. That the consideration agreed to be paid for the tract, namely, 25568 dollars 75 cents, was precisely the amount of 1022% acres, the estimated quantity, at 25 dollars per acre. That on the 31st of December 1823, Carter executed to the complainant a convey-anee of the tract ; and although *the deed, on its face, purported to convey only 995% acres, according to a survey thereto annexed, yet this circumstance was entirely overlooked by the complainant, who then thought, and, until after the whole price which he agreed to give for the 1022% acres had been paid, continued to think, that the conveyance was in conformity with the written agreement. That on discovering the mistake, complainant applied to Carter to refund the amount he had overpaid ; which Carter refused to do, saying that he conveyed only 995% acres. The bill therefore prayed that Carter might be compelled to answer on oath whether the agreement and understanding between the parties was not for a sale and purchase by the acre, at 25 dollars, and whether he did not receive, for 995)4 acres, 25S68 dollars 75 cents ; and that complainant might have such relief in the premises as should seem equitable.
    The agreement of the 20th November 1822, and the conveyance of the 31st December 1823, referred to in the bill, were exhibited therewith. By the agreement, Carter covenanted that he or his heirs should, on or before the first day of January 1824, convey and assure to Weaver and his heirs, “all his tract or parcel of land lying and being in the county of Fauquier, on the waters of Cedar run, Kicking run and Owl run, known by the name of the Dodge Plantation, and bounded as expressed in the survey made by Charles Kemper in March 1814, and estimated by the said Kemper at 1022% acres:” in consideration whereof, Weaver covenanted to pay Carter 12784 dollars 37% cents upon receiving the conveyance, and 12784 dollars 37% cents on the first of January 1825 ; and to secure the payment of the deferred instalment by a deed of trust on the whole tract. By the conveyance, Carter bargained and sold to Weaver, for the expressed consideration of 24881 dollars 25 cents, the parcel of land called the Dodge Plantation, “ bounded as is expressed and particularly described in a survey and plat *made by Charles Kemper junior, and dated September 6, 1823, which is hereto annexed, to be had, taken and received as a part of this deed, as fully and completely and in like manner as if the said plat had been fully recited in this indenture ; which said tract or parcel of land, according to the said plat, contains 995% acres.” The certificate of the surveyor, accompanying the plat referred to in the deed, recites that the survey was made “for messrs. William P. Carter and Jacob Weaver.”
    Carter answered, denying that there was any contract or understanding between Weaver and himself, other than that which appears by the written agreement exhibited by the complainant, and insisting that the sale thereby contracted for was a sale in gross, notwithstanding that the survey therein referred to was adopted by the parties as one of the means of ascertaining the gross sum which the one was willing to take and the other to give. He added, that before any payment was made, the complainant expressed his apprehension that there was a deficiency in the quantity of the land, and requested the respondent to have it resurveyed ; to which respondent, though he then considered the agreement as a sale in gross, and so informed the complainant, yielded his assent, stipulating however that the survey so to be made should be final : that this stipulation was acceded to by the complainant and a resurvey was accordingly made by Charles Kemper junior, upon which there turned out to be a deficiency : that the quantity thus ascertained was made the basis of the final arrangement between the parties; for that quantity alone the respondent received payment, and by that survey the deeds stipulated for in the agreement were made.
    Weaver’s deed of trust to secure the deferred instalment of the purchase money (which was also made an exhibit in the cause) referred to the plat made by Charles Kemper junior, and described the tract of land according to the boundaries and quantity given therein.
    *A general replication to the answer of Carter was put in by the complainant, and the cause was set for hearing.
    Afterwards the complainant obtained leave to file, and accordingly filed, an amended bill ; in which, after setting forth the original agreement and understanding of the parties, the written articles, and the effect of the whole, in the same manner as in his original bill, he proceeded to state — That Carter executed to him a conveyance of 995% acres, the quantity of land appearing to be contained in the tract by a survey made on the 6th of September 1823 by Charles Kemper junior, who was called on by the parties to make the survey. That the complainant, not doubting the correctness of that survey, went on to settle by the same, at 25 dollars per acre, paying 12440 dollars 62% cents at the time he received the conveyance, and giving his bond for a like sum payable on the first of January 1825, which he had since paid off ; the whole amount of 24881 dollars 25 cents being the precise sum that 995)4 acres would come to at 25 dollars per acre. That some time after the last payment was made, the complainant had occasion to have the land surveyed, and employed for the purpose one Zachariah Cox, a surveyor remarkable for his skill and accuracy ; when it was ascertained that instead of 995% acres, the tract contained but 974 acres 21 poles. That complainant thereupon called on Carter to refund the excess paid him, but Carter refused to do so, pretending that the sale was in gross, and not by the acre, though he well knew that the agreement and understanding was for a sale by the acre. That complainant was induced to execute the written contract, by defendant's suggestion that he would only have to pay for the quantity of land which should be ascertained by survey, at 25 dollars per acre; and if the contract were susceptible of the construction contended for by the defendant, he had practised a fraud upon the complainant, *having drawn the contract himself, and represented to complainant, who confided in his integrity, that it conformed to their verbal agreement aforesaid; at all events the variation of the’ written from the verbal contract, if not produced by defendant’s fraudulent design, arose from his negligence, haste and mistake, and ought to be corrected. That through the inadvertence of complainant’s counsel who drew the original bill, which was filed without being submitted to complainant for inspection, no mention was therein made of Cox’s survey ; and the erroneous statement that complainant had paid for 1022^ acres, instead of 995 acres the real quantity paid for, proceeded from the same cause. This bill prayed, that a survey of the land might be directed, and that, for any deficiency thereby ascertained, Carter might be decreed to refund at the rate of 25 dollars per acre; and general relief.
    The survey made by Cox, referred to in the amended bill, was exhibited therewith.
    Carter put in an answer to the amended bill, denying the fraudulent misrepresentations imputed to him ; insisting that the sale, upon the true construction and legal effect of the contract, was a sale in gross, and not by the acre; and alleging that such was the express and well understood intention of the contracting parties at the time. He admitted that the whole purchase money had been paid.' — To this answer Weaver replied generally.
    Several .witnesses were examined, and their depositions filed.
    Z. Cox deposed that his survey was made to the best of his ability, by that of Charles Kemper junior, and the boundaries therein described ; and upon calculation he found that the quantity contained did not agree with that given by Kemper.
    Marcus Russel deposed, that he accompanied Charles Kemper junior, when he surveyed the tract of land in *question. When they came to Cedar run, Weaver expressed to Carter his unwillingness to go fartherthan the middle of the run, saying he was to give 25 dollars per acre for the land, and did not wish to pay for more land than he got. Carter then agreed not to cross the run, but to run thé line up the middle of it. While they were running another line, the survey seemed likely to'embrace more than the expected quantity ; whereupon Carter observed to Weaver, that he would have done better to take the land by old mr. Kemper’s survey, for he would have to pay for more land. Deponent understood from Carter, that the land was sold for 25 dollars per acre.
    Paul Day deposed, that he lived with mr. Carter as overseer, and understood that the land was sold for 25' dollars per acre. He thinks it is probable that he heard this from mr. Carter himself, as he does not remember who else could have told him so.
    Charles Kemper junior deposed, that his survey of the land in question was made in the presence of both parties; that he was then the deputy surveyor of the county; that he made the survey with great care, and reexamined his work before he presented his report to the parties; and that, to the best of his knowledge, his survey was deemed final by them.
    At the hearing, the chancellor dismissed the bill, with costs: and the complainant appealed to this court.
    In the argument here, by Stanard and Harrison for the appellant, and Johnson for the appellee, one of the questions discussed was whether the court of chancery had jurisdiction of the case ? Johnson contending that the plaintiff had a plain remedy at law, and as complete as in equity : that supposing the case to be, as the plaintiff alleged it was, a sale by the acre, a mistake in the survey, and a consequent deficiency in the quantity of land sold, then his remedy was an action of covenant *upon the deed, if the deed contained a covenant for quantity ; or, if it did not, an action on the case for money paid by mistake, to which, he insisted, the execution of the deed would have presented no impediment. — But this point was not considered by the court.
    Stanard and Harrison said, the original contract in this case was for a sale by the acre, and not in gross ; and this was evident both from the terms of the contract itself, and from the deed executed in pursuance of it. Carter, it is true, alleges in his answer, that although the sale was in gross, yet at Weaver’s instance he consented to a survey of the land, which was accordingly made by Kemper; and that both parties agreed that this survey should be final. But this was affirmative matter in the answer, which must be proved ; yef it was not proved; there was no proof of any agreement that Kemp-er’s survey should be definite as to the quantity of the land. The case, then, was that of a sale by the acre ; a survey made, according to which the quantity was 995X acres ; and that survey erroneous, in making the quantity 21 acres more than the tract contained. The survey was only a mode of carrying the contract into execution, and if there be a mistake in that survey, it cannot bind the party contrary to his contract; otherwise, in every case of contract for a sale by the acre, the mere execution of the contract would estop the vendee from alleging deficiency in the quantity. Quesnel v. Woodlief, 6 Call 218, 2 Hen.&Munf. 164, note, and Jolliffe v. Hite, 1 Call 329, were cases in which, after the execution of a deed conveying a certain number of acres, more or less, deficiency of quantity was alleged : andin the latter case, where the principles applicable to this subject were discussed, it was decided .that wherever the primary contract is for a sale by the acre, though it be carried into execution by a deed conveying a certain quantity, more or less, the vendee is not precluded from claiming for deficiency, *nor the vendor for excess. The case here is stronger: it is a case where the parties estimate the price by a given measure — 1022^ acres, according to the existing survey, at 25 dollars per acre — and then adopt a new measure of the price, by agreeing to a new calculation of the quantity ; and. the conveyance executed is for the quantity appearing by that new calculation, the new survey of Charles Kemper junior, unqualified by the terms more or less, while the price expressed in the deed is the exact amount of that quantity at 25 dollars per acre. Nor does the agreement to have the land surveyed make the case like that of Fleet v. Hawkins, 6 Munf. 188. That was a case of contract for a sale by the acre, and a deed executed conveying 372 acres, more or less: the bill claimed compensation for an alleged deficiency : but it appeared by the answer and proofs, that the parties having agreed to have a survey of the land, the vendor offered to abide by the old survey, and the vendee accepted the proposition ; so that the original contract for a sale by the acre was converted into a contract of sale in gross. Here, there was no agreement to abide by Kemper’s survey ; no new term introduced into the contract. The survey was made not in change of the contract, but in execution of it : the contract was for a sale by the acre; the survey was only to ascertain the quantity ; and there is a mistake as to the quantity. If Carter’s answer were sustained by proof, the case would be clear in his favor ; but his answer is unsupported by either the contract or the proofs. The chancellor, instead of dismissing the bill, ought to have directed a survey (for Cox’s survey was ex parte, and only exhibited as prima facie evidence of deficiency) and then to have decreed compensation for the deficiency so ascertained.
    Johnson, contra,
    said, that upon the original agreement, and the pleadings and proofs in the cause, this was not a contract of sale by the acre, but a contract of hazard. #The original agreement, according to its just construction, imports a sale by boundaries, the quantity of land being estimated at so many acres by reference to an existing survey, and the price, at 25 dollars per acre upon that estimate, amounting to a gross sum of 25568 dollars 75 cents. A new survey was then agreed to, and was accordingly made ; and from this circumstance, if left unexplained, it might perhaps be inferred that according to the real intent and understanding of the parties, the contract was for a sale by the acre. But the circumstance is not left unexplained ; for the amended bill charges that the written agreement was different from the verbal understanding of the parties, and this charge is directly denied by the answer, which alleges that the ex-pressunderstanding and intent of the parties was, as upon the written agreement it appears to be, a sale in gross, and that after-wards the vendee proposed and the vendor assented to a new survey, which was to be final and conclusive as to the quantity. Kemper’s deposition corroborates the answer in this respect, and there is no proof to the contrary. Whether a sale was in gross or by the acre, is always a question of intention. Key tons v. Brawfords, 5 Heigh 39.
    But suppose the contract was for a sale by the acre, and that the survey was made merely to ascertain the quantity, with no stipulation or intent that it should be conclusive in that respect, whether right or wrong ; still the vendee is not entitled to relief. The survey was made in the presence of both parties, and carefully made ; it was satisfactory to both of them ; and the contract was carried into execution according to it. After all this, the vendee files a bill alleging deficiency in the quantity — that instead of 995% acres, there are only 974; and the proof of inaccuracy in Kemper’s survey is the affidavit of Cox, who surveyed the land for the vendee. It would be a mockery of justice to attempt relief in such a case as this. Did any one ever ^believe that a survey, however carefully made, does or can ascertain the true quantity of the land ? After the contract is executed, it is not enough to shew merely error or inaccuracy, for error and inaccuracy are incident to the very nature of the transaction ; but in every such case the true question is, whether there be such a mistake as will justify a court of equity in unsettling what the parties had deliberately settled for themselves. Mere uncertainty in the survey will not be enough to set it aside; to produce that result, a plain mistake must be shewn, of some substantial amount. Jolliffe v. Hite, 1 Call 329 ; Nelson v. Carrington & others, 4 Munf. 332 ; Tucker v. Cocke, 2 Rand. 51; Keytons v. Brawfords, 5 Leigh 39 ; Koger v. Kane, Id. 606; Bierne v. Erskine, Id. 59 ; Eolley v. M’Keown, 4 Leigh 627. The principle of the case of Jolliffe v. Hite is, that upon the sale of land by the acre according to survey, and a deed executed conveying the estimated quantity, more or less, the party will be entitled to compensation for such difference only as cannot be accounted for by the difference of instruments, and the like causes ; in other words, that surveys are only approximations to certainty, and a reasonable allowance ought to be made for inaccuracies. Here the alleged deficiency is but 21 acres in a tract of nearly 1000 — scarcely more than 2 per centum of the whole. This is greatly within the allowed limits of uncertainty. There is no case where the court has ever interfered on account of a deficiency so trivial as this.
    The case of Fleet v. Hawkins, 6 Munf. 188, rules this case, if the parties here agreed to abide by Kemper’s survey. That they did so agree, is proved by Carter’s answer, by Kemper’s deposition, and by the fact that the contract was executed according to that survey. The only difference between Fleet v. Hawkins and the case at bar is, that there the agreement was to abide by the existing survey ; here, to make a new survey, and to abide by it when made.
    
      
       SaIe of Land — “More or Less” — Contract of Hazard*— The principal case is cited in Allen v. Shriver, 81 Va. 188, for the proposition that when the real contract is to sell a tract of land for so many acres as it may contain, more or less, fully understood to he so, the purchaser takes the tract at the risk of gain or loss, hy deficiency or excess. The principal case is cited in this connection-in Crislip v. Cain, 19 W. Va. 538. See Fleet v. Hawkins, 6 Munf. 188. Upon this subject, see foot-note to Blessing v. Beatty, 1 Rob. 387.
    
   *TIJCKER, P.

The object of the bill in this case is to recover compensation for an alleged deficiency in the quantity of a tract of land sold by the appellee to the appellant, and which the- latter contends he had purchased by the acre. He therefore calls upon the appellee to say “whether the agreement and understanding between the parties was not for the sale and purchase by the acre at 25 dollars.” To this the defendant answers, that by the true construction of the agreement, the sale contracted for was a sale in gross ; that the survey of Charles Kemper, referred to by the contract, was the datum on which the estimate of quantity was made; and that both parties agreed finally to abide by that estimate, as, he insists, appears clearly by the agreement. In his answer to a similar interrogatory in the amended bill, he again insists on the same construction of the contract, and avers that “ such was the express and well understood intention of both contracting parties at the time of entering into it.” I concur with the defendant in his construction of the contract, and am clearly of opinion that though the purchaser here contracted to pay a sum which is the exact multiple of the estimated quantity of land, and in that sense may be said to have purchased by the acre, yet the survey of Kemper, and his estimate of the quantity, was referred to as the basis of the contract, and must be considered as settling between the parties the number of acres to be paid for. If this were at all doubtful from the terms of the agreement, it is placed beyond doubt by the answer of the defendant, which herein is directly responsive to the bill. Talcing this then to be the true construction of the contract, it was a contract of risque, and the appellant was bound to abide the deficiency. The case, in this aspect, may be regarded as ruled by Fleet v. Hawkins, 6 Munf. 188, the principles of which appear to me unquestionable. *The appellee, however, agreed to have another survey, upon Weaver’s insisting that he had bought by the acre and suspected a deficiency. Whether this agreement was gratuitous or not, it was binding, since it was in the nature of a compromise of conflicting pretensions.

What this agreement was, must be taken from the answer of the defendant. Put it out of -the case entirely, and then we have seen that the case is with him. Consider it as founding a new basis, and_we must take it as he has stated it, because the plaintiff himself has no where set it forth, — because he has offered no proof in relation to it, and because the proof, such as it is, shews that that survey was to be final, and to settle the rights of the parties definitively. This is not only proved by Kemper to have been his impression, but it is strongly inferrible from the survey having been made (as upon its face it purports to be) for both parties, and in the presence of both, as Russell proves. It is also inferrible from the execution by one, and the acceptance by the other, of a deed agreeable to that survey, and by the execution of bonds and a deed of trust by the appellant, and his acquiescence for four years ; all of which facts go decisively to evince the finality of the transaction, and the understanding of parties that that survey should be binding. Four years after, however, the appellant has a new survey made, ex parte, and not by the county surveyor, and now alleges a mistake in Kem-per’s calculation. I do not think we should disturb the transaction upon such a pretence. The calculation of the quantity of a tract of land is a matter that does not admit of absolute certainty. Though the science according to the principles of which it is made is one of the exact sciences, the subject on which it operates offers very frequently insuperable obstacles to exactness. Uneven ground, the meandering of water courses, and the impediments of timber land are among these obstacles ; while the carelessness and inattention of 'markers and *chain carriers perhaps yet more contribute to variations in surveys. Hence our courts have wisely said, that even in sales strictly by the acre, no compensation is to be made for deficiency, where the supposed deficit may fairly be presumed to arise merely from the variations of instruments or of mensuration. In one case it is said that a deficiency of 8 acres in 552 was not too great to be set down to the account of such variations. In this case the deficit is very little more, and on this ground ought not to be regarded. But, in fact, we are not left without some means of accounting for the difference between the surveys here. In the mensuration of the first line of the survey, which is about a mile and three quarters long, the surveyors differ two poles in length. Now it cannot be doubted that one pole or S% yards in a mile is a small variation in measurement; yet these two poles, in a survey averaging 288 poles in width, make a difference of about 3acres. Then, in Cox’s calculation table, he sets down his 9th line 5 poles short of his own measurement. This, on the width of 246 poles, makes more than acres. And lastly he does not run the line by which the conveyance was made, for he runs down the middle of the stream and cuts the island in two, although Carter has conveyed the whole bed and the whole island, and is responsible for them both. According to my calculation, this will account for three acres more ; making, in the whole, 14 acres, and leaving the residue of some 7 acres to be accounted for from other trivial variations of instruments and measurement.

In every view of the case, I am of opinion to affirm the decree.

The other judges concurring, decree affirmed. 
      
      In the copy of the record which the reporter had, the mistake here mentioned by the president did not appear.
     