
    CURATOR OF GRAFTON vs. WELLS ET AL.
    APPEAR PROM THE COURT OP THE SIXTH DISTRICT, THE JUDGE OP THE DISTRCT PRESIDING.
    A tract of land, part of an estate, bounded on three sides by other plantations and a bayou, sold at probate sale as the last residence of G, and as containing three hundred and eighty arpens, for three thousand dollars, is a sale per aversionem; and although it is ascertained the plantation actually contains but two hundred and eighty arpens, the purchaser cannot obtain a diminution in the price proportioned to the diminution of the quantity sold, below that actually found within the limits.
    The plaintiffs sue for the recovery of three, thousand dollars and interest, as the price of a plantation adjudicated to the defendant T. J. Wells, at a probate sale of the estate of T. & E. Grafton.
    The defendants admit the sale and adjudication to one of them, but say the plantation was described in theproces verbal as containing three hundred and eighty arpens, and warranted to contain that quantity, and for which they purchased it; that it in fact only contains two hundred and eighty arpens, which is all that has been delivered, and is in fact all it contains; they aver that they are entitled to diminution in price in proportion to the diminution in quantity.
    The proces verbal of sale states that the land “lies on the left bank of bayou Rapides, in descending, and adjoining lands of P. Lamothe on one side, and lands of Wells on another side, &c., containing the quantity of three hundred and eighty arpens, and was offered and adjudged to T. J. Wells, he being the last and highest bidder, for the price of three thousand dollars.”
    There was judgement for the whole amount claimed, the defendants appealed.
    The only question relates to the right of the defendants to a diminution in price proportioned to the diminution in quantity less than they actually purchased.
    
      
      Rigg, for the plain tiffs: ° r
    1. Referred the court to a decision at its last term, where the same principle was decided that is now invoked for the plaintiffs in this case. See Johnston vs. Quarles, 3 Lou. Rep.
    
    2. The purchasers in this case were well acquainted with the premises before they bought at the probate sale of Grafton’s estate. They knew the boundaries of the tract of land which comprised this plantation, and must be considered as purchasing with reference to those boundaries.
    
      Dunbar and Boyce, for defendants-.
    1. We contend that in this case there ought to be a diminution in price equal to the diminution in quantity. To prevent a diminution in price, something more definite and certain is required than a mere designation of the adjoining lands, than which nothing could be more vagueand uncertain, unless the lines had been previously established by actions of boundary or actual survey.
    2. The boundaries as well as the adjoining tenements must have been described in the act of sale, to prevent a diminution in price. Civil Code, art. 2471.
    3. The seller is presumed to know the quantity and situation of the property he owned better than the purchaser, so that the construction of the sale must be against the seller.
    4. The legal definition of boundary is totally different from that presented in this case. Lou. Code, art. 822.
    5. The probate judge acted in error in selling more land than the title papers of the succession called for, and that a court of equity should grant relief.
   Ports», J.,

delivered the opinion of the court.

A tract of land, part of the estate of one Grafton, was sold as containing three hundred and eighty arpens, situated on the left bank of bayou Rapides, in descending, and adjoining lands of P. Lamothe on one side, and lands of Wells on the other, being the last place of residence of the deceased. The quantity actually contained within these limits is two hundred and eighty arpens. The plantation has been opened fpr many years, and fences on each side marked the dividing lines between it and the adjoining tenements. The purchaser lives in the immediate neighborhood, and it is proved was well acquainted at the time of sale with the tract purchased. The land was not sold at so much per arpent, but for one entire sum; in other words, it was a sale per aversionem.

A tract of land, part of an estate, bounded on three sides by other plantations and a bayou, sold at probate sale as the last residence of G, and as containing three hundred and eighty arpens, for three thousand dollars, is a sale per avcrsionem; and although it is ascertained the plantation actually contains but two hundred and eighty arpens, the purchaser cannot obtain a diminution in the price proportioned to the diminution of the quantity soldbelowthat actually found within the limits.

The action is brought to recover the price which the defendants agreed to pay for the lands; and the defence is that they are entitled to a diminution for the difference between the quantity actually found within the limits, and that enumerated at the probate sale.

It is difficult to distinguish this case from that of Johnston vs. Quarles, 3 Lou. Rep. 92; and we believe that case was correctly decided. Fraud is not proved or alleged. Error cannot be believed. The plantation had been under fence for years, and purchased by a person who had lived in its vicinity, and was well acquainted with it.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.  