
    [Sunbury,
    June 28, 1826.]
    M‘DOWELL and another against COOPER and others, Administrator's of MITCHELL.
    IN ERROR.
    The vendee of a tract of land, to whom a deed has been executed, and who has given a bond and mortg-age for the purchase money, is presumed, in the absence of evidence to the contrary, to have accepted the deed; and, in an action on the bond, he is not entitled to an abatement, on account of a small deficiency after-wards discovered in the quantity of land conveyed.
    On a writ of error to the Court of Common Pleas of Mifflin county, it appeared that this was an amicable action of debt, in which John MlDowell and Robert M‘Clelland were plaintiffs, and Robert Cooper, James Chrisioell, and David Mitchell, administrators of William Mitchell, deceased, defendants, to recover the balance due upon a bond given by the defendants’ intestate to the plaintiffs, dated the 29th of March, 1813, and conditioned for the payment of six hundred and forty-five dollars and fifty cents, on the.- 1st of April, 1818. ,
    This bond was given for part of the.price of a tract of land, which the plaintiffs, by articles of agreement, dated the 19th of February, 1812, contracted to convey to the said William Mitchell, and which was described as containing four hundred and twenty-nine acres and ninety-nine perches. On the 29th of March, 1813, a deed was executed by the vendors, conveying the premises contracted for, by courses and distances, and describing them as containing the same number of acres as were mentioned in the articles of agreement. ■ Bonds for the purchase money, together with a mortgage, were on the same day given to the vendors by the vendee, to whom the deed was delivered, for" the purpose of being recorded. It was recorded on the same day. The title papers were afterwards given to McClelland, to enable him to obtain a patent in the name of Mitchell, and a patent was obtained on the 15th of December, 1815. It did not appear that either Mitchell or his representatives had ever been in' possession of the patent; but it was proved, that Mitchell had often said, that he would not lift the papers until all the money was paid; and when they were offered to"him he said, that he believed they were as safe in MClel-land’s hands as in his own.
    On a survey being made, on the 15th and 16th of December, 1819, in pursuance of the directions of, an inquest, on a writ of partition between this and other lands, it was discovered that the tract conveyed by the deed of the 29th of March, 1813, contained only four hundred and twenty acres and one hundred and thirty-seven perches; and, on this ground, the defendants claimed an abatement from the bond upon which this suit was brought, in proportion to the deficiéncy in the quantity of land -conveyed to their, intestate.
    The President of the Court of Common Pleas, charged the jury as follows:—
    “As you have heard that this cause was tried before, and the opinion of the Supreme Court has been read, I shall only tell you, that the opinion of the Supreme Court is conclusive on this court and you. This, however, is only the case where the facts are the same. It is alleged, that they are different here from what appeared to the Supreme Court. There was no return of survey in the office, at the time of the sale, embracing exactly the land sold. There was.of one tract; but of part of the other, the return appears to have' been made in November, 1S15.
    “ There was no patent when the deed was made, nor for two and a half years afterwards. The deed and patent, to this hour, are in possession of the plaintiffs. The defendant gave'his bonds and mortgage. Why he did not first accept the deed and then the patent, the parties differ. [His Honour here read the evidence.]
    
      “Two cases in the Supreme Court, Crotzer v. Russell, (9 Serg. & Rawle, 78,) and this case, (13 Serg. & Rawle, 143,) settle the law in one respect. But if you believe that Mitchell was never satisfied; that he would not and did not accept these papers, because something was still remaining to be done, it leaves the articles in full force; and, if you believe Robinson, there is a deficiency of eight acres, for which the defendant is to have an allowance. But if you believe the deed was in effect received at the time the bonds were given, and both parties then considered all settled, the matter ought not to be opened.”
    The counsel for the plaintiffs excepted to the opinion of the court. '
    
      Hale, for the plaintiffs in error,
    observed, that the judgment in this case had been reversed by the Supreme Court, and a venire de n'ovo awarded. The same, or nearly the same evidence, had been given on the second trial, and the.cause has come up again. The court below ought to have charged the jury according to the opinion of the Supreme Court; instead of which, they erroneously left it to the jury to decide, whether Mitchell had accepted the conveyance from the plaintiffs, notwithstanding be gave them his bonds, accompanied by a mortgage. The court,.moreover, charged positively, that, if the jury believed Robinson, who proved that the land fell short eight acres, the defendants'were entitled to an allowance for the price of the eight acres.
    
      Potter, for the defendants in error,
    contended, that the court below did not go in opposition to the opinion of this court. The judge told the jury, that if Mitchell accepted the deed from the plaintiffs, and the parties considered the transaction as settled, the plaintiffs were entitled to recover. But the defendants contended • that the deed was not accepted, but retained by the plaintiffs in order to procure a patent; and, until the patent was obtained, the business was not closed. The defendants gave some evidence that the deed was not accepted, and whether it was or not the jury were the proper persons to decide. The deed was made to Mitchell, in order that a patent might be taken out in his name. The fact of acceptance was fairly submitted to the jury, and they have found for the defendants.
   The opinion of the court was delivered by

Duncan, J.

This case comes up again, I think, in no material respect different. The deficiency of eight acres in a survey of four hundred and twenty-nine acres, is no more than a purchaser may reasonably expect. It is, however, unnecessary to decide, whether on articles executory the vendee would not be entitled to a deduction for this deficiency in an action on the articles, for that is not this case. It is an action of debt on the bond, where a conveyance had been accepted and bonds and mortgage given for the purchase money. There was nothing to be left to the jury. The bonds and mortgage prove the acceptance of the conveji-ance. The man who executes a mortgagee to the vendor for the payment of the purchase money, must be presumed to have accepted the conveyance. There was nothing in the parol evidence to rebut this presumption — no allegation of fraud or concealment, or refusal to accept, or Conditional acceptance. The parol evidence fortified the presumption. It was, that the conveyance was delivered to Mitchell the day it v?as executed, to be recorded, and- that it was recorded according-ingly,; Mitchell declaring he would not lift the papers until the money was all paid, and, on the same day, he gave the bonds and mortgage. All were simultaneous acts. The conveyance, after being recorded, was given to the vendors to enable them to takeout the patent in Mitchell’s name, which was done accordingly. Mitchell did not refuse to receive back the papéis- on account of any deficiency in quantity or quality, for. it was not then known, or any defect of title, for there was none; but because, (and it is the reason assigned by himself,) he thought they would he as safe in McClelland’s hands as his own. . And they were so, for the conveyance was recorded, and the patent stood in his own name. If Mitchell was entitled to an abatement pro rata of these eight acres, I can see no good reason why, if he had received the money, he might not recover it back, when, at any time thereafter, the discovery should,be made, or why, if there was this small surplus, Mitchell might not be compelled to pay for it. If the law was so, it would prove a source of great disquietude and litigation. It is not so. The articles had discharged their office when the conveyance was accepted, and the bonds and mortgage given. There being no warranty as to quantity, the quantity would-be matter of description., not a covenant that the described land should contain the exact quantity to one acre or to eight acres, in a conveyance of four hundred acres. I do not speak of a deficiency to a great amount, entering from its magnitude into the very heart and essence of the contract; but these small quantities, deficient or exceeding, the deficiencies or surplus, which both parties, vendor and vendee, might naturally expect. The discovery of a deficiency was not until seven years after the sale, and possession, six years after the conveyance and mortgage, more than fifteen months after the last instalment became due, and six months after the greatest part of that instalment had been paid, and was made on a survey directed by a jury, or inquest on a writ of partition, and on running a line between this and other lands. I therefore think there was error in the court leaving it to the1 jury to decide whether there was any thing, any fact in the cause trying, to make it an exception from the general rule of law, that the conveyance and bonds conclude the. parties; because there was no evidence of any fact which could vary it from the common case, of the execution of the articles by accepting a conveyance and giving bonds and mortgage; any thing which would leave the articles in full force, and thereby entitle the purchaser, in an action on the bonds, to an allowance for these eight acres, to be deducted from the bond, in the same manner as he might be in a suit on the articles.

Judgment reversed, and a venire facias de novo awarded.  