
    Joel Parker vs. Robert Walker.
    
      Measure of Damages — Deceit.
    In an action of deceit for knowingly selling and conveying to plaintiff more land than defendant had title to, the true measure of damages is the pro rata value of such portion of the land as plaintiff finally lost, and the expenses he incurred in perfecting his title to another part.
    BEFORE O’NEALL, J„ AT BARNWELL, SPRING TERM, 1859.
    This was an action of deceit for selling to plaintiff land.to which defendant had no title.
    Defendant sold and conveyed to plaintiff one hundred and twenty acres of land at the the price of two hundred and thirty-seven dollars. It turned out that defendant owned but fifty-four acres of the tract he had conveyed — fifty-six were vacant and ten were covered by an older grant. The plaintiff took out a grant and perfected his title to the fifty-six acres which were vacant.
    His Honor instructed the jury that if they found for the plaintiff, they might find the pro rata value of so much of the land as defendant had no title to. The jury found for the plaintiff one hundred and thirty dollars and thirty-five cents.
    The defendant appealed, and now moved this Court for a new trial on the grounds:
    1. That the verdict was without evidence on the question of deceit.
    2. That, under any circumstances, the plaintiff was entitled to recover, no more than the value of the ten acres of land which he had lost, and the expenses Incurred in taking out the grant.
    Owens, for appellant,
    cited Ward vs. Bevel, 3 Eich. 427 ; Moore & Nesbit vs. 'Lanham, 3 Hill, 299 ; Scott vs. Woodsides, Car. Law Journal, 178; Wesibrooh vs. McMillan, 1 Hill, 357 1 Hill, 302; 1 Strob. Eq. 166.
    
      Hutson, Aldrich, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The first ground of appeal cannot be sustained : Eor there was proof both of misrepresentation in the sale of the land, and also that the defendant knew it. This constituted enough to maintain the allegation of deceit. To say there was opposing proof is no reason why this Court should interfere. It belonged to the jury to' weigh the evidence, and according to their judgment of the preponderance, to decide.

The second ground was not brought to my notice at the trial. The whole case was argued on the question of deceit.

I think, if it had been put to the jury as a mere question of damages from the deceit without any measure to ascertain them, and they had found as they did, that the verdict might have been sustained. But without adverting to Ward vs. Revel, 3, Rich. 427, I directed them to allow a pro rata for the whole land not covered by Walker’s title. This, according to that case was wrong; and all which the plaintiff ought to have recovered was for the ten acres covered by an adverse title, the Pan ton grant, and the cost of the new grant obtained by the plaintiff. This was stated by the defendant’s counsel to be ten dollars. The pro rata of the consideration for the land (ten acres) covered by the adverse title (the Panton grant) is nineteen dollars and seventy-five cents. Having thus the means of correcting the verdict and doing justice between the parties, we will pursue that course.

A new trial is, therefore, granted, unless the plaintiff shall, within sixty days after notice of this order, enter upon the record a remittitur of so much of the verdict as shall exceed twenty-nine dollars and seventy-five cents.

Wardlaw, Glover, and Munro, JJ., concurred.

Motion granted nisi.  