
    The Commissioner in Equity vs. W. Thompson.
    Where the defendant bought at the sale of (he Commissioner in Equity a tract of land sold for the purposes of a division, and described as “ all that tract said to. contain 449 acres, more or less, situate, ■ lying and being, &c. &c &c. it was held that the purchaser could not set up by way of discount to a suit on. his note given for the purchase money, that upon a re-survev ilicro was a deficiency of 29 acres.
    There is no implied warranty at the sale of a public officer and no deduction will be allowed for a deficiency, unless it amounts to a failure of consideration, or defeats the great object of the purchaser, or furnishes satisfactory evidence of a total mistake in the character of the land.
    Where a tract of land is sold in gross, and the number of acres mentioned merely as a part of tbe description, without any warranty or representation by which the purchaser is misled, no deduction pro tanto, will be allowed for a deficiency of acres.
    Too easy an ear should n it bo lent to defences of this sort in cases of public sales.
    This was an action of assumpsit on a promissory note given hy defendant for the purchase of a tract of land sold by plaintiff under the order of the Court of Equity to effect partition among tbe heirs of Thomas Cobb, deceased.— The defence was, deficiency in the number of acres sold. The deer! from plaintiff to defendant described the land as iC all that tract of land said to contain 449J acres, moro or less, situate lying and being on Wilson and Ninety Sis Creeks, waters of Saluda River, and bounding oh the E. and N. by Sami. Wardleswortb and on the W. and S. by Larkin Griffin and Sami. Wardleswortb.” U pon a re» survey it was found to contain - only 420 acres included within the metes and bounds. The land was not sold by plaintiff according to any plat. It was admitted by the Commissioner that six acres-had .been'sold to. a former purchaser.. The _ auctioneer was interrogated whether the land was sold in gross or, for a particular number of acres, but the testimony was rejected by the Court on the ground that the deed contained the best evidence of the vendors’représentations.. . ...
    The jury under the charge of Mr. Justice Gantt,’ found a verdict allowing defendant a rateable deduction for 29¿ acres.
    The plaintiff now moved for anew trial on the grounds
    That there was no misrepresentation at the sale..
    That the deed contains no warranty of the number of acres, and'evidently shows that the land was sold-in gross, -without minute regard to the quantity.
    That the Court refused to receive the testimony of the auctioneer as to the terms published at the sale.
    Wardlaw, for the motion,
    cited Barkley vs. B.arkley, Harper’s L. ,R. 441. Barksdale vs. Toomer, Harper 2901 Taylor vs. Partridge, decided at Columbia.
   Cuma per

Nott, J.

The land in question was .sold by the Commissioner in Equity pursuant to an order of that Court, and I take it to be a well settled rule that the law never implies a warranty on the part of any-person acting merely as its organ for the purpose of transferring property from one hand to another. A public officer is never liable under such circumstances unless he makes himself so by an express warranty, which he is never required to make, or by some misrepresentation, as where both purities are misled by an intentional misrepresentation or mistake. Such was the ease of the State vs. Gaillard and others, 2 Bay’s Sep. 11. That was anaetion of debt on a bond given to the State for lands sold by the Commissioner of forfeited estates under the confiscation act.— • It appeared that at the sale a plat was produced which the Commissioner supposed to be correct, that represented the tract of land to contain five hundred acres more than were included in the grant and to contain a valuable mill seat, which was equally untrue and which was the principal object of the purchase. The Court held that such a misrepresentation furnished a good ground of defence, either for a deduction or for a rescission of the contract. So in the case of Tunno and Fludd, 1 M'Cord, 121, where a plat was exhibited at tbe time of sale representing the tract of land as containing 547 acres, which upon re-survey was found to contain only 460, the surveyor having made a mistake in the length of some of the lines, the Court allowed a deduction to be made pro tanto on account of the misrepresentation, although the land was sold by the Commissioner in Equity under an order of that Court; but I do not think that such a defence has ever been sustained where íhé land was sold in gross and the number of aeres mentioned merely as a part of the description, without any warranty or representation by which the purchaser has been misled. The description of the land in this case is u a tract or plantation of land said to contain four hundred and forty nine acres more or less ” The situation of the land was truly described, but no such description of the precise number of acres was given as was calculated to deceive the purchaser. The quan'iiy was hypothetically represented and the purchaser left to obtain such further information on the subject as he might think necessary. 1 am of opinion therefore that he must have purchased at his own risk. If the deficiency had been so great as to have amounted to a failure of consideration or to have defeated the great object of the purchaser, - or to have furnished clear and satisfactory evidence- of a total mistake in the character of the land I think the defendant would have been entitled to relief. But none of those grounds exist in this case.

There are other reasons why .too easy an ear ought not tobe lent to a defence of this sort in cases of public sales, In the first place the officer selling is not supposed to be better acquainted with the property than the purchaser, and in most eases not so well, having .neither .the means nor the inducement to obtain such information. Secondly, property thus sold is most frequent for the benefit of iamilies, many of whom are minors, and who thereforo receive their proportions as the installments become due where the ■ payn nts are made in that way which is most usually required The elder distributees therefore who receive the dividends out of the cash payments, receive their full-proportions, -while the whole loss by subsequent deductions may fall 'altogether upon those -who are the least able to sustain it. There is another reason for not favouring such á defence.' It is not unusual to see a good deal of competition at such sales. A deduction, therefore, afterwards made is ..not uiifre-quently allowed to the last bidder, which another perhaps might not have required. I think that the jury might have allowed a'deduction for the part of -the land which had been previously sold. ' But beyond that I am of opinion they ought not to have gone. ■ A new trial must therefore be granted. ’ Neio trial granted.  