
    *Hull v. Cunningham’s Executor.
    Monday, April 23, 1810.
    i. Sale in Gross — Material Mistake — Deficiency—Equitable Relief.' — Though land be sold In gross, for so much, be it more or less; yet, if it be evident that both parties were mistaken in a material point, as to the lines by which the vendor held, and there was no express agreement on the part of the purchaser to take the risk upon himself, a Court of Equity will give relief for a deficiency,
    a. Same — Same—Same—Same—Heasure of Relief, — But if the purchaser do not (by eviction or otherwise) lose the land he expected to get; -but make an entry for it as vacant, and obtain a patent; the proper measure of relief is only the amount of his expenditures in procuring the patent, with a reasonable allowance for trouble therein, and actual costs of suit.
    3. Same — Same—Action on Title-Bond. — Quaere, whether, in this case, an action at law could have been maintained upon the title-bond?
    4. Same — Relief in Equity. — A purchaser who buys a tract of land as containing so many acres, more or less, and agrees to take upon himself the risk, as to lines, or quantity, (appearing, also better acquainted with the land than the vendor, against whom there is no proof of fraud,) is not entitled to any relief in equity, for a loss relating to the risk undertaken.
    Peter Hull, the appellant, brought a suit in the Superior Court of Chancery for the Staunton District, against Robert Cunningham, sen. to be allowed a deduction from certain bonds for purchase-money, on account of a deficiency in land sold and conveyed. A title-bond, dated the 29th of January, 1796, bound the said Robert Cunningham to make to the said Peter Hull “a good and sufficient deed, in fee-simple, for a certain tract of land known by the name of Crab Bottom, lying in Pendleton County, said to contain 370 acres, be it more or less, clear of all encumbrances, on or before the first day of next August, to wii, all that tract left him by his father John Cunningham, deceased.” The deed, executed the 2d of September, 1797, for the purpose of complying with the condition of this bond, was for the same tract of land, setting forth the boundaries according to certain deeds of lease and release, of record in Augusta County, from James Trimble and Sarah his wife to the defendant, dated the 17th and 18th days of August, 1761.
    The bill charged that the plaintiff had rented the said plantation and tract of land from the defendant for several years before the purchase, and had then understood that all the improvements belonged thereto ; that, before the bargain was concluded, the defendant, and the agent or person who, it was said, knew the lines, went upon the same with the plaintiff, and shewed him lines, which they said were the true lines, and which included all the buildings and improvements ; which lines would appear by a plat marked A., (dated Tune 20th, 1797, and exhibited with the bill,) containing 340 acres ; that the defendant had made him a deed for what he expected was the whole of the land purchased, but which he found by a survey marked 13. was only 2S8 acres ; being 112 less than the quantity mentioned in the bond ; leaving out ninety acres of the most 331 valuable land *shewn to the plaintiff, and the dwelling-house and other improvements ; that the plaintiff never would have purchased the said land had he known that the part to which the defendant had no title did not belong to the same. He therefore claimed a deduction from so much of the purchase-money as remained unpaid : and, by an amended bill, obtained an injunction to stay proceedings at law.
    The defendant, in his answers to the original and amended bills, denied most expressly that he ever named any certain •quantity of land ; being unable to do so, from a variety of causes, which the complainant well knew ; that the courses were procured and furnished by himself for the purpose of making him a deed. The defendant averred that he never was possessed of the courses •or plat; that the deeds from Trimble and wife had been procured by his father to be made to him when he was very young ; that he had been many years a prisoner with the Indians ; that, being involved in a lawsuit, soon after his return, about this land, his papers were filed in the office of the General Court, where they were certainly lost or •mislaid during the revolutionary war, so that, he could never exactly ascertain the quantity of the land. He positively denied his ever having shewn the complainant any lines or boundaries ; and declared that no bargain or purchase was ever made on, or within sixty miles thereof ; that he lived at a great distance from the land, and received his only information respecting its value from the complainant, who lived, from his infancy, near it, (as well as, for some years previous to the purchase, upon it,) and now holds lands adjoining'; that the complainant had frequently proposed to buy the land of him, and came to his house and commenced the bargain, which was finished at a neighbour’s house ; that the words “more or less” were inserted, because the defendant was determined not to name any particular number of acres : “that the quantity of 370 acres was named (as the defendant verily believes) by the complainant himself, as it was thought proper to mention some number in the bond of conveyance ; for which reason the 332 words “more *'or less” were expressed, to shew uncertainty with respect to quantity ; that, if the tract had contained one thousand acres, the complainant would have been entitled to the whole under the agreement, and was perfectly agreed and satisfied to receive the premises sold, at the price agreed upon.” This answer stood unimpeached, and in many parts was supported by ihe evidence.
    By a, survey made in the cause, it appears that the lines expressed in the deed comprehend 270 acres. To this the surveyor annexed a plat, shewing the form of 90 acres of landwhich he surveyed for the plaintiff, November 18th, 1797, except a small triangle (amounting to four acres) which was excluded ; and observed, that the boundaries thereof appear to be all old marked corners, and were supposed to be the boundaries of the lands formerly claimed by the defendant, amounting to 86 acres. The buildings sold by the defendant to the complainant were actually upon this part of the land. It appears that an entry was made by a neighbour for twenty acres of this part ; that Hull purchased the rig'ht of the locator, made a farther entry for the residue, and, as it seems, obtained a patent for the whole, amounting (together with the small triangle of four acres) to 90 acres ; notwithstanding which, he insisted that he ought not to be allowed for his reasonable charges and trouble only, but for the actual value of the land, or at least pro rata.
    Such are the principal outlines of this case. The Chancellor (July 30, 1804) was of opinion, that “the plaintiff’s relief is purely equitable, as it is believed that he could nei1 her support an action on the agreement, nor deed, in the proceedings mentioned ; but that the parties were mistaken in a material point cannot be doubted : had the plaintiff brought his bill to be relieved from his contract, and could the Court place the parties in the same situation in which they were before the contract took place, the mistake appears to be of sufficient magnitude to justify such a measure: but, inasmuch as the plaintiff has not prayed to be released 333 *from his contract, nor could the parties be placed in the situation in which they stood prior thereto ; part of the defendant’s lands and improvements, which he had held for many years, and which he might have continued to hold uninterrupted, (more especially, as, from the report of the surveyor, the boundaries of the lands, said to be vacant, appear to be marked as boundaries of the said defendant’s claim, and, as it may appear, originally were so,) are now held by the plaintiff under a different title, the Court must endeavour to place the forties in the situation they must have stood, had no mistake taken place ; which, it is presumed, is equally consonant with the principles of equity. ’ ’ The plain tiff was therefore directed to exhibit an account of his expenditures in procuring a title to the vacant lands, as also an account for his trouble therein, to be allowed him (when reported to the Court) so far as reasonable, together with has actual costs in prosecuting his suits. EVom this decree the plaintiff obtained an appeal, which, having abated by the death of Cunningham, was revived against his executor.
    Wickham, for the appellant.
    The ground for the relief prayed for is, that land was sold to Hull, to which the vendor had no title. Both parties were ignorant of this circumstance. It was generally understood in the neighbourhood that the land in question was within the reputed boundaries; when, in fact, the most valuable part of the land was vacant, but was afterwards secured by Hull. The question then is, what is the proper measure of relief ?
    The Chancellor was mistaken in supposing that our remedy was merely equitable. I contend that Hull, by the terms of the bond, could have maintained an action at law upon it: the obligor being bound to make a “sufficient deed in fee-simple for a certain tract of land left him by his father.” This could not be done without making a good title to the land, as he claimed it under his father, and ' as his father held it. Acceptance of 334 the deed was no satisfaction *of the bond; for it is not proved to have been accepted as full satisfaction ; without which, such acceptance could not be pleaded in bar. The deed was for part of the land ; conveying no more than Cunningham was entitled to. This was only part satisfaction, which Hull had a right to receive, as such, and then to resort to his action for the residue.
    If he had brought an action at law, the measure of damages would have been the value of the land. The same ought therefore to be the measure of relief in equity.
    Williams, contra.
    Brora, the evidence, it is clear that Hull knew more of the land than Cunningham, who relied on Hull alone. Jolliffe v. Hite settled the principle that the original contract is to be the rule; and that, if the vendee buys at so much, more or less, he takes the risk upon himself. The same rule prevailed in Pendleton v. Stuart,  Hull, therefore, was entitled to no compensation ; but if to any, certainly not to more than the Chancellor had given him. If he considered Cunningham bound to make good this land, he ought to have given him notice of the vacant land- before he had perfected the title himself; and he should not demand an allowance of the full value of ninety acres, with all the improvements, for what cost him not more than ten dollars.
    Wickham, in reply.
    The distinction, between this case and Jolliffe v. Hite and Pendleton v. Stuart, is, that, in each of those cases, the purchaser got all the land within the specified limits : the deficiency was only in the number of acres. But here, Hull does not get the land within the limits by which he purchased : an important part of the land contracted for was not conveyed at all; being admitted not to be the property of the vendor
    As to Cunningham’s not being acquainted with the lines ; he certainly must have supposed the houses and other improvements to have been on the tract which he held, ■ 33S and *must have contemplated conveying them to the purchaser. Nelson v. '/Matthews,  and Quesnel v. Woodlief, ;are conclusive authorities to shew that he was bound to make good the deficiency; since the boundaries expressed in his own title papers contained less than the specified quantity ; and the words “more or less” do not cover so great a deficiency as that discovered in this case, but only a reasonable allowance for small errors in surveys, and variations in instruments.” The measure of damages should be the value of the land at the time of the contract; according to the case of Nelson v. Matthews.
    The smallness of the sum paid by Hull to-save the land is a matter of no consequence. Suppose he had sued for the land, and been defeated, after spending one hundred pounds. He could not have recovered that sum, in addition to the value of the land. When, therefore, he has got the land for a smaller sum, Cunningham is not entitled to the benefit of his successful speculation.
    April 28th, 1810.
    
      
      Sale in Gross — Mutual Mistake — Deficiency—Equitable Relief. — In Crislip v. Cain, 19 W. Va. 438, the subject of abatement of the purchase money on the sale of land because of a deficiency in the quantity is discussed at great length, .lunaii Gbeen, who delivered the opinion of the court, makes an exhaustive review of the Virginia cases on the sub ■ ject and criticises the decisions made therein. The conclusion reached by the court may be found in foot-note to Watson v. Hoy, 28 Gratt. 698; foot-note to Pendleton v. Stewart, 5 Call 1; foot-note to Quesnel v. Woodlief, 6 Call 218. In this case (Crislip v. Cain, 19 W. Va. 438), the principal case was cited and discussed on pp. 515, 516, 517, 518, 527, 535, 537, 538. Judgií Gbken remarks that the syllabus in the principal case is apt to mislead. He then states the facts in the case and, after quoting from the opinions of .Ittdsks Tcckkr and Roanu, concludes (p. 518): “The court (i. in the principal case) obviously affirms the principles of Pendleton v. Stewart, 5 Call 1, which distinctly decided, that when there is no fraud in the vendor but simply an innocent and mutual mistake, in which neither party is more to blame than the other, as to the quantity of the land, and the sale is a sale in gross, there can be no abatement of the purchase-money because of a deficiency in the quantity. It further decides, that if the title to any part of the land is defective, and the vendee being in possession of it is put to expense in fortifying the defective title, he is entitled to be compensated for his actual cost and trouble in thus fortifying the defective title of the vendor. Surely there is nothing in the case, which gives any countenance to the idea, that an abatement for a deficiency in the number of acres, when the land is sold in gross, can be made in favor of the vendee, simply because there has been a mutual innocent mistake by the parties as to the number of acres in the tract. The very reverse of this, as I understand the case, was decided. And I presume, that this was one of the cases intended to be referred to in Tucker v. Cocke, 2 Rand. 67, where the court said, if Quesnel v. Woodlief (6 Call 218), was to be construed as deciding, that such an abatement for a deficiency was to be made on a sale in gross became of such a mutual mistake, then it had been repeatedly overruled.”
      To the point that, where a sale of land is clearly one in gross, without reference to its quantity, whatever the deficiency, no allowance is made to either party even when the deficiency is great, the principal case is cited in Caldwell v. Craig, 21 Gratt. 137; Allen v. Shriver, 81 Va. 183; Cunningham v. Millner, 82 Va. 531; Farrier v. Reynolds, 88 Va. 145, 13 S. E. Rep. 393. But the court will always require clear proof that the vendee did agree to take the hazard of deficiencies on himself. Russell v. Keeran, 8 Leigh 14, citing principal case. See principal case also cited in Russell v. Keeran, 8 Leigh 17.
      On this subject (i. «., sale in gross and sale by acre) many foot-notes of some length have been written in this series of reports. In addition to those cited above, see foot-notes to Jollife v. Hite, 1 Call 301; Pendleton v. Stewart, 5 Call 1; Keyton v. Brawford, 5 Leigh 39; Russell v. Keeran, 8 Leigh 9; Blessing v. Beatty, 1 Rob. 287; Caldwell v. Craig, 21 Gratt. 132.
      Same — What Constitutes — “More or Less.” — The decisions in Virginia and elsewhere have uniformly held that when a vendor sold by written contract a tract of land for a certain sum of money, describing the land and adding thereto, “containing so many acres more or less,” specifying them, or any other mode of specifying the quantity, which shows that its exact quantity was not intended to be given, such a contract or deed has been invariably construed to be a contract in gross, and has not been construed to be a contract by the acre, nor has such indefinite specification of the quantity of land ever been construed as a warranty of the number of acres by the vendor and as a contract, thus binding him to make it good. Judge Green, announcing the opinion of the court in Depue v. Sergent, 21 W. Va. 332, 333, after quoting these words from Crislip v. Cain, 19 W. Va. pp. 526, 527, continues by saying: “This construction of such a contract, that it is a sale in gross and that there is no warranty in such a contract of the quantity, by the vendor, has in most cases been assumed and acted upon by the court as clear and indisputable, and no comment has generally been made on the subject: such contracts are not regarded in these respects as being in any degree ambiguous.” Judge Green cites a long line of cases to sustain this assertion, among them, the Virginia cases of Jollife v. Hite, 1 Call 301; Anthony v. Oldacre, 4 Call 489; Nelson v. Matthews, 2 Hen. & M. 164; Hullu. Cunningham, 1 Munf. 330; Grantland v. Wight, 2 Munf. 179; Bedford v. Hickman, 5 Call 236. To the same effect, see the principal case cited in Trinkle v. Jackson, 86 Va. 242, 9 S. E. Rep. 986; Graham v. Larmer, 87 Va. 229, 12 S. E. Rep. 389; Stebbins v. Eddy, 22 Fed. Cas. 1195.
      Sale of Land — Deficiency—Equitable Relief — nistake. —It is now well settled that a mutual mistake of the parties in a matter which is part of the essence of the contract and substance of the thing contracted for, will be corrected by a court of equity and may be good ground for rescinding the contract or executing it on equitable terms of compensation, according to circumstances, even'though the contract be in writing and required to be so by the statute of frauds. Leas v. Eidson, 9 Gratt. 278, citing principal case.
      And the principle upon which equity gives relief in cases of deficiency or excess in the estimated quantity upon the sale of lands, is that of mistake; whether the mutual mistake of the parties, or the mistake of one of them, occasioned by the fraud or culpable negligence of the other. Blessing v. Beatty, 1 Rob 298, 299, citing, among others, the principal case. See also, foot-note to Blessing v. Beatty, 1 Rob. 287.
      The principal case is also cited in Cabell v. Roberts, 6 Rand. 582.
      Same — Same—Abatement—Rule.—The general rule in the case of an abatement on account of deficiency in the quantity of land sold, is to allow for the deficiency the average price of the whole land. Depue v. Sergent, 21 W. Va. 345, citing principal case; Nelson v. Matthews, 2 Hen. & M. 164; Lowther v. Com., 1 Hen. & M. 202; Blessing v. Beatty, 1 Rob. 287; Crawford v. McDaniel, 1 Rob. 448; Nichols v. Cooper, 2 W. Va. 347; Stockton v. Union Oil & Coal Co., 4 W. Va. 273.
    
    
      
      Sale in Gross — Material Mistake — Deficiency—Equitable Relief — Measure of. — See principal case cited in Schilling v. Short, 15 W. Va. 798; Humphreys v. McClenachan, 1 Munf. 500.
    
    
      
       1 Call, 301.
    
    
      
       MS. April, 1804.
    
    
      
      
        2 H. & M. 164.
    
    
      
       Ibid. 174.
    
   The Judges delivered their opinions.

JUDGE TUCKER

(after stating the case) observed. This case in many of its circumstances so nearly resembles that of Pendleton v. Stuart, that the same reasons which governed in that case appear to apply to this, in part. In both, the purchaser had a much better opportunity of knowing the lands than the seller. Here the words of the bond do-not amount to a warranty of the quantity inasmuch as, in speaking thereof, there is this caution used ; “said to contain 370 acres, be it more or less, to wit, “all that tract left him by his father John Cunningham, deceased.” These circumstances indicate a contract in gross, and not by the specific number of acres. Neither the seller nor the buyer appears to have had access to any title-deeds. The old marked lines and corners noticed by the surveyor may have misled them both ; or may, in fact, be the true lines-of the original survey, or patent, lost 336 or mislaid among *the records of the General Court; and, if so, Cunningham was entitled, perhaps, to a patent for the surplus under the 46th section of the land-law. Be that as it may, here has been no actual eviction or expulsion of Hull from the lands not comprehended within the lines of Cunningham’s deed. What then is the damage he has sustained ? Exactly what the Chancellor has supposed. Had he brought a suit at law upon the bond, after he had taken-up and patented the lands, and thereby secured them to himself, a Jury .could not have given him more than the Chancellor’s decree probably allows him. Having elected to come into a Court of Equity, he certainly cannot have vindictive damages. Compensation for his trouble, and actual expenses in-securing his title, seems to me to be the just measure that he is entitled to. Perhaps the decree ought to have directed that Cunningham should execute a release of the lands which he has taken up and patented; inasmuch as, by possibility, the original patent may be found, and the lines thereof comprehend the whole tract, which Hull now holds. But I lay no stress upon the omission, as that possibility seems very remote. Upon the whole, I think the decree ought to be affirmed, and the cause remanded to be proceeded on to a final decree, with this further direction, that Hull should be decreed to deliver up the title bond given him by Cunningham, and enjoined from bringing suit thereon.

JUDGE ROANE.

The grounds of the decision of this Court in the case of Pendleton v. Stuart, are decisive of the present case, and •even go beyond it. That was a judgment upon a written agreement, whereby Stuart agreed to sell Pendleton “1,100 acres of land, more or less,” for 3001. A bill to enjoin the judgment was brought by the defendant, stating a pro rata sale, and also a deficiency of 160 acres appearing by an ex parte survey. There was no evidence, however, supporting the allegation of the bill, as to 337 *the pro rata sale, or varying the contract as appearing upon the face of the written agreement. The bill of injunction was dismissed by the Chancellor, and his decree of dismission affirmed, pro tanto, by this Court ; though the same was corrected as to an omission in the decree, to provide for procuring a title to the land actually contained within the patent. One of the judges was of opinion, that, if the case had stood upon the written agreement merely, he should probably have been of opinion, on the authority of Jolliffe v. Hite, to allow for the deficiency, as that deficiency was greater than was reasonably imputable to the variation of instruments ; and this the rather, because the agreement was not to sell “a tract of 1,100 acres,” but to sell “1,100 acres of land but that the bill having asserted a pro rata sale, and the answer which was substantially responsive thereto, having stated a verbal communication, in which the buyer agreed to take the risk upon himself, (there being no contrary proof or circumstances,) he was of opinion to affirm the decree upon the merits. Another judge lays great stress upon the contiguity of Pendleton’s residence to the land, and his better knowledge of the quantity than Stuart’s ; circumstances which emphatically exist in the case before us.

These principles are decisive of the present case, unless we say that a party is not as competent to take upon himself a risk, with respect to the manner in which the lines of a tract of land may run, as with respect to the actual number of' acres contained in the tract. In the case before us it is fully proved, that that risk was taken upon himself by the appellant, and that there was no concealment, fraud, misrepresentation, or deception, on the part of the appellee. It is also evident, that the appellee was not only as ignorant of the actual lines of his tract, as the appellant, (and probably more so,) but sold the land by the gross, and was particularly careful not to lay himself responsible for any particular boundaries or number of acres. Unless, therefore, we are prepared to say, that it is immoral and inequitable for a man to pay, and another to receive, money 338 *for more land than the one parts with and the other gets, under all possible circumstances whatsoever, (thus excluding the competency of a contracting party to take upon himself any risk as to lines and quantity,) a position that was negatived in the said decision of Pendleton v. Stuart, and by the opinion of Judge Pendleton and the Court in the said case of Jolliffe v. Hite, the appellee was entitled to recover the stipulated price in the case before us.

My opinion is, that the decree should be affirmed.

JUDGE ElvEMING.

This is a very plain case. The decree is right, and I am not for disturbing it.

Decree affirmed by the unanimous opinion of the Court. 
      
       1 Call, 301.
     
      
      Note by the Reporter. Prom this and other cases it appears that, where a purchaser is entitled to relief in equity on the ground of a deficiency, the measure of relief depends upon circumstances. If the deficiency he very considerable, and the parties can he put in statu quo, the contract should he rescinded, if the purchaser request it. If the parties cannot he put in statu quo, or the purchaser do not apply for a rescission of the contract, an allowance should he made for the loss sustained; which allowance is, in general, the value of the land at the time of the contract, with lawful interest; (Nelson v. Matthews. 2 H. & M. 164;) the purchase-money furnishing- (as it seems) a proper standard of that value, where the actual value does not appear to he different; Lowther v. The Commonwealth, 1 H. & M. 201, and Judge Fleming’s opinion, 2 H. & M. 179; hut it seems, the actual value, when appearing to he greater than the purchase-money, is to he allowed. Nelson v. Matthews, Tucker’s and Roane’s opinions, 2 H. & M. 175, and 177. In this case, the actual loss sustained by Hull being only his expenses and trouble in getting the patent, and actual costs of suit, the court allowed him no more; the circumstances of his case making it an exception to the general rule.
      It seems from Judge Tucker’s opinion in Nelson v. Matthews, 2 H. & M. 177, that if the purchase-money has been paid, and the purchaser he evicted, by a superior title, the measure of relief is the value at the time of the eviction, and not at the time of the contract. But Chancellor Taylor, in Lowther v. The Commonwealth, 1 H. & M. 202, decided otherwise. Ideo quaere.
      In case of a deficiency in land purchased., the sum to he allowed as the actual value, is, in general, to be estimated by the average value per acre of the whole purchase, and not by the relative or intrinsic value of the part lost; (which rule may, however, be varied by circumstances;) 2 H. & M. p. 178; hut, in case of an eviction of part, the proper estimate of damages is the actual value of the partlost; ibid. p. 177; in estimating which, I presume, its relative as well as intrinsic value, should he considered.
     