
    Staunton.
    Sergeant v. Linkous.
    September 15th, 1887.
    1. Equitable Jurisdiction and Relief'—-Vendor and Vendee—Mistake.— If in sale of land at gross price, upon estimate of quantity influencing price, mistake occurs, which if understood would probably have pre- - vented sale, or varied its terms, equity will afford relief, either by setting aside the sale or by giving a just compensation. Yost v. Mallicote, 77 Va. 610.
    2. Idem—Compensation—Measure—Rule—Exception.—In case for relief by compensation, the general rule is to abate the price according to the average value of the whole tract. This rule is subject to an exception. Where peculiar circumstances add to the value of the land retained, or lost, a departure from this rule is required. Watson v. Hoy, 28 Gratt. 698.
    3. Idem—Case at bar.—Here no circumstances exist to take the' case out of the general rule; none such being averred in the pleadings, or established by the evidence.
    Appeal from decree of circuit court of Tazewell county, pronounced in the chancery cause of Linkous against Sergeant.
    This suit was brought to enforce a vendor’s lien on a certain tract of land situate in the said county. The land was conveyed with a covenant of general warranty by Linkous, the plaintiff, to the defendant, Sergeant, and a portion thereof having been afterwards recovered of the latter by persons having a better title, the single question in the case related to the measure of compensation to which the defendant was entitled for such deficiency and eviction.
    It appears from the record that in July, 1882, the plaintiff, being the owner of a certain tract of land containing about four hundred acres, conveyed to the East Eiver Eaiiroad Company a right of way through the same, and also two acres of the same tract, to be selected by the said company, upon which to establish a station. The deed of conveyance was duly recorded. Afterwards, in January, 1883, the plaintiff sold to E. A. Miller, for five hundred dollars, “one square acre ” of the same tract to be laid off opposite the station when located. The contract of sale was in writing, and was duly recorded. In April, 1883, the plaintiff sold and conveyed, with general warranty, to J. D. Sergeant, of Philadelphia, the appellant here, 80T\f0- acres of the same tract of land for the gross sum of $8,018, reserving a lien on the face of the deed for the unpaid purchase-money.
    After the conveyance to Sergeant had been made, the Norfolk and Western Eaiiroad Company, which is the lawful successor of the East Eiver Eaiiroad Company (Acts of Assembly 1881-2, p. 138), located the station which was contemplated by the parties when the plaintiff’s deed to the last mentioned company was made, and in locating it of an acre of the land conveyed to Sergeant was appropriated by the railroad company, it having the undisputed right to do so under and by virtue of the conveyance to the East Eiver Eaiiroad Company aforesaid. After the station had been located, Miller claimed the right to have the acre of land he had purchased from the plaintiff laid off opposite the station, and this claim was sustained by a decree of the said circuit court in a chancery suit brought by Miller to enforce his rights under the recorded contract of sale above mentioned. And, in execution of the decree, one acre of land opposite the depot building was laid off and conveyed to Miller, which acre was also a part of the land conveyed by Linkous to Sergeant; so that Sergeant lost in all 1^ acres of the land be purchased from the plaintiff, and the question was, whether he was entitled to be credited for such loss at the rate of the average contract price per acre for the whole tract, as conceded in the bill by the plaintiff, or with the actual value of the land lost at the time of its purchase, as contended for by him. In other words, whether he was entitled to an abatement of the balance of purchase-money at the rate of one hundred dollars per acre, or at the rate of five hundred dollars per acre, the latter sum being the price paid by Miller for the one acre conveyed to him, and, as the evidence showed, the actual value per acre of the land lost at the time of the warranty. The circuit court took the former view, and decreed accordingly, whereupon the defendant applied for and obtained an appfeal. the first, and the third entered June 16th, 1886. The other elaims being compromised, the controversy here is only between Z. R. Lewis and Camm Patteson, trustee, with Hartsook’s administrator and A. L. Boulware, receiver. Opinion states the case.
    
      
      A. J. & 8. J). May, for the appellant.
    
      Henry & Graham, for the appellee.
   Lewis, P.,

(after stating the case) delivered the opinion of the court.

The decree is in conformity with the rule which was recognized and enforced in Yost v. Mallicote’s Adm’r, 77 Va. 610, where many of the previous decisions were reviewed by Judge Lacy, who delivered the opinion of the court. And this rule, as wise and just as it is well settled, governs in all cases except where particular circumstances, clearly established, require a departure therefrom.

In Sheffey’s Ex'or v. Gardiner, 79 Va. 313, the latest reported case on the subject, the judgment was reversed, because the circuit court refused to instruct the jury to apply the rule above referred to, in assessing the damages sustained by the purchaser, if any, in that case, unless they believed from the evidence that when the purchase was made a special value, per acre, was put upon the land in controversy different from the average value of the whole tract. On the other hand, in Watson v. Hoy, 28 Gratt. 698, which was a ease of deficiency, the rule without modification was not applied, because there were fisheries and costly buildings on the land, and certain valuable appurtenant privileges, which greatly added to the value of the land, and all of which the purchaser got and retained. See also Blessing's Adm'rs v. Beatty, 1 Rob. 305; 2 Min. Insts. 650, and cases cited in Watson v. Hoy.

In the present case no circumstances are shown which take the case out of the general rule. The land purchased by the appellant lies near the recently founded and incorporated town of Graham, and is divided by the Norfolk and Western Railroad into two nearly equal parts. It was used as ordinary farming land when sold to the appellant, and had no improvements upon it. But that portion of it lying near the railroad is, and was at the time of its purchase, more valuable than that which lies remote. In the petition for appeal it is alleged that the land was purchased with a view to building a town upon it, and consequently that the appellant, attaching a special value to so much of it as lies “ near the railroad,” gave for the same a higher price, per acre, than the average contract price of the whole tract. But this position is not supported by the evidence, nor is there any such averment in the pleadings. The answer of the defendant, which is prayed to be treated as a cross-bill, avers that the land lying “immediately on the line of the railroad ” is more valuable than that which is “some distance” therefrom. But it does not aver that when the land was purchased any one portion of it was valued higher than another, nor does it aver what proportion of the land adjoins the railroad, or how much, in the opinion of the respondent, lies “some distance” therefrom. Nor is the defendant’s deposition any more explicit on these important points than his answer. And the evidence of the witness, Graham, who, it seems, was interested with the appellant in the purchase of the land, and who negotiated the purchase, is equally vague and unsatisfactory.

One of the witnesses, it is true, testifies that on one occasion, several months before the purchase, Graham remarked to him that he and his associates expected to buy land upon which to lay off a town, and to erect furnaces and other structures. But the evidence does not show that this remark related to the land afterwards purchased by the appellant from Linkous, and even assuming that it did, the record furnishes no basis upon which the court could safely proceed were it to depart from the general rule. The evidence shows that the land lying near the railroad was worth at the time of its purchase as much as $500 per acre, while that lying remote was worth, as averred in the answer, not less than from thirty to fifty dollars per acre,—the former, as the appellant says in his deposition, being suitable for business and building purposes, while the latter “may not come into the market for years.”

Now, if the latter is valued at forty dollars per acre, then the average price per acre for which the whole tract was sold was only two and a half times greater, while it was just one-jifth of the real value per acre of the land lying near the railroad. But how much of the land lies “ near the railroad,” and is therefore worth $500 per acre, and how much is remote, and therefore worth less than that sum per acre, or how the land is to be valued as it recedes from the railroad, are questions upon which, the record is silent; which shows at a glance that the contention of the appellant cannot be sustained. Besides, the land was purchased with notice of the prior conveyance to the railroad company, and also of the Miller contract; yet the appellant, with his eyes open, omitted to stipulate as to the measure of his compensation in the event any part of the land should be lost.

Under all these circumstances, the general rule as to compensation for deficiency was rightly applied by the circuit court, and the decree must be affirmed.

Decree affirmed.  