
    Bedford v. Hickman.
    [November, 1804.]
    (2 Am. Dec. 590.)
    Sale of Land — “More or Less” — Fraud of Vendor -Relief. — If tRe contract Re for 900 acres, more or less, and tlie tract Re found to contain only 765 acres, tie purchaser will Re relieved, if it appear, that the seller knew of the deficiency at the time of the sale. Rut did not disclose it.
    Hickman brought a bill in chancery, in the county court, to be relieved against a judgment obtained against him by Bedford; and stated, that he had purchased a tract of land in Powhatan county, from Bedford, for 900 acres, more or less, and gave his bond for ^650, part of the purchase money, *he having previously paid him ¿650. That, since the purchase, he has discovered that a fraud was practised on him; inasmuch as it appears by the original deeds, that the tract only contained 709 acres, and, by a survey, that it contains 76S acres. That the plaintiff, at the time of the sale, was ignorant of the deficiency, although the defendant knew; as he was in possession of the deeds, and was reminded of it by Taylor, w’ho told him he ought to communicate it to the plaintiff; but the defendant said Taylor was not concerned in the business, and wished the deed suppressed. That the plaintiff has paid as much as he ought in conscience to pay, as per statement annexed ; and therefore prays an injunction.
    The answer admits the purchase of the land for ^'1300; of which the plaintiff has paid all except what now appears due on the bond. Denies fraud, as the defendant had no other knowledge of the quantity, than by the tax roll. States that the defendant sold for more or less, and would have preferred a survey, but was in a hurry to get awaj' in order to complete a contract he was treating about, for another tract in Charlotte. Denies that the defendant ever requested Taylor to suppress the deeds. States that the plaintiff saw one of the deeds, but the other could not then be found, although it afterwards was, as the defendant was informed on his return to Powhatan. That he then proposed to the plaintiff to make his election to take the land for 900 acres, or have a survey; and that the plaintiff elected to take it for 900 acres. Admits that some considerable time before the sale, he had seen two old deeds in Ta3lor’s house, but had no recollection of their contents. That he himself purchased the land of James Bedford for 900 acres.
    The exhibits are:
    1. Copies of the bond dated June 1794; and of James Bedford’s deed to the defendant for the land, which it states to be, by estimation, 900 acres, more or less, and is dated Mar-h 1792.
    *2. Copies of a deed from John Woodson to Stephen Bedford, for 350 acres, dated February 1735; and of a deed from Michael Woolf to Stephen Bedford, for 350 acres, dated April 1736.
    The deposition of a witness states, that when the parties were bargaining for the lands at his house, the defendant said he held it for 900 acres, and his lowest price was ¿£1300. That the plaintiff expressed some doubts as to the quantity; and the defendant said he thought, if surveyed, it would hold out more, but he wished to be certain as to the sum,. as he was in treaty for another place; and therefore would sell it for 900 acres, more or less, if he even lost a few pounds. That on the next morning, the plaintiff declining to purchase, unless he could see the title papers, the defendant took out James Bedford’s deed, and some sheriff’s receipts, which stated the land to be 900 acres; and said he knew of no other papers that would throw any light on the quantity. That his father had held it for 900 acres; and that he paid taxes for 600 acres, exclusive of his mother’s thirds. That the plaintiff still declining to buy without a survey, the defendant offered a survey ; at which the plaintiff paused. That the plaintiff afterwards advised with the deponent whether he should take it for 900 acres without a survey. That they then went to Taylor’s; that the plaintiff asked Taylor if he knew of any papers which could throw light on the quantity; that Taylor searched, but said he could find none; observing that it was always held for 900 acres, but he believed there were nearer 1000 acres. That he has since heard Taylor say, the defendant requested him to conceal the title papers, on his proposing to him, previous to the sale, to shew them to the plaintiff; and that that was the reason he did not produce them. That he mentioned this to the defendant, who denied it; saying that Taylor had given him the deeds sometime previous to the contract, but he had returned them to him again, and had them not in possession more than two hours. That the defendant held out an idea to the plaintiff, during the whole treaty for the lands, that *tbey were always held for 900 acres, by his forefathers; and that the two deeds for 350 and 359 acres, contained the whole tract.
    
      The deposition of another witness states, that he heard Taylor say, that, having- had the deeds in possession, he thought the land would not hold out 900 acres; that he put the deeds in the defendant’s hands previous ^o the sale, who returned them, and desired him to take care of them; that he asked him how he could think of selling it for 900 acres? and observed that it was his duty to tell the plaintiff; that the defendant was angered thereat, saying it was nothing to Taylor, and why would he meddle in it. That when the defendant, with the plaintiff and Clarke, went to him aboüt the papers, they had been gone but a few minutes before he recollected where they were.
    A third witness says, that the defendant never desired him to suppress the deeds; that he does not believe the defendant knew the quantity; that the defendant had the deeds in possession not more than five minutes: that he gave the plaintiff his election to take it by survey, or for 900 acres, more or less.
    A fourth witness says, that when he acted as sheriff, he received four years quit-rents of the land as 709 or 710 acres: and two others, that they received the taxes on it for the years ’80, ’81, ’84, ’85, ’87, ’88, as 900 acres. . .
    The county court granted a perpetual injunction; and the defendant appealed to the high court of chancery, where the decree of the county court was affirmed, and from the decree of affirmance, the defendant appealed to the court of appeals.
    Randolph, for the appellant.
    There is no fraud established against Bedford. He thought the land was held for 900 acres; and sold it for more or less. He took no steps to impose upon Hickman, who refused a survey, and bargained upon his own and Clarke’s judgment.
    *Call contra.
    The appellant did not disclose all the circumstances to Hickman, at the time of the contract. He only shewed him James Bedford’s deed to himself, and some receipts for taxes: But he did not inform him of the two old deeds which made it only 709 acres. He ought, however to have communicated that circumstance. For it was known to him, as the answer states he had seen them several times at .Taylor’s and he confessed to Clarke, that he had had them in possession for two hours. Besides, as Taylor.’s wife had dower in the lands, and the whole fee-simple was sold, it is evident that the contract, though nominally with Bedford only, was, in truth, for the joint benefit of both, according to their several interests:, and it is clearly proved, th'at Taylor was in pos-, session of the deeds, and pretended he could not find them when demanded before the contract was signed. To make a bargain of hazard binding, it is necessary that all the circumstances should be disclosed, so that the vendee may have a full .opportunity of exercising his judgment; otherwise, the parties do not contract on equal terms. Jolliffe v. Hite, 1 Call, 301. Therefore, every circumstance known to Bedford and Taylor, or either of -them, ought to have been communicated to Hickman: and the failure to do so, entitled Hickman to the relief he sought. Consequently, the decree of the court of chancery is right, and ought to be affirmed.
    Cur. adv. vult.
    
      
      Sale of Land — “More or Less” — Sale in Gross. — The principal case is cited in Crislip v. Cain, 19 W. Va. 537; Depue v. Sergeant, 21 W. Va. 333, for the proposition that, when a vendor sells Ry written contract a tract of land for a certain sum of money, descriR-ing it and adding to the description of the land, containing so many acres (specifying them) more or less, or estimated to contain a specified number of acres, or any other mode of specifying the quantity, which shows that its exact quantity was not intended to Re given, such contract has been invariably construed to be a contract in gross, and not by the acre, nor has such indefinite specification of the quantity of land ever been construed as a warranty of the number of acres Ry the vendor and as a contract, thus Rinding him to make it good, though the vendor has sometimes been held to make it good, because of fraud committed Ry him on the vendee Ry his false representation of the quantity.
      Same-Same — Fraud — Vendor’s Title-Deeds. — But the principal case is cited in Duvals v. Ross, 2 Muni. 294, for the proposition that, whenever it appears that the title-deeds of the vendor must have disclosed to him the true quantity of the land, he is Round to account for a deficiency to the vendee, though his deed to the vendee expressed a quantity "more or less.”
      See Nelson v. Matthews, 2 Hen. & M. 164.
      In Crislip v. Cain, 19 W. Va. 519. the court referred thus to the principal case: “The case shows, that the only question was whether the vendor had been guilty of a fraud; and it seems by the agreement of counsel, it was not even claimed, that a mere mistake in the quantity without fraud Ry the vendor would entitle the purchaser at such a sale of land in gross to an abatement. The fraud was established; and the court affirmed the judgment of the court below allowing the abatement without delivering any opinion.”
      See foot-notes to Blessing v. Beatty, 1 Rob. 287; Joliffe v. Hite. 1 Call 301; Pendleton v. Stewart, 5 Call 1.
    
   LYONS, President,

at a subsequent day, delivered the resolution of the court, that the decree of the court of chancery should be affirmed.  