
    Edmondson and others v. Hart, Adm'r.
    Probate sale of a tract of land, reserving a parcel contracted to be sold by the intestate, estimated to contain 185 acres; the proof was that the land sold by the intestate was -sold at one dollar an acre, that the amount sold was 357 instead of 185 acres, that it was worth 62,50 per acre, but that the balance of the land around there was not so valuable; the pro- • bate sale brought only forty cents per acre: Held, The proof was too vague and insufficient to sustain a claim for a greator abatement of the purchaso-money than 40 cents per acre.
    In the absenco of fraud or mistake tho rulo of caveat emptor applies to probate sales. (Note 101.)
    Appeal from Walker. This was a suit upon a promissory note. The defense was failure of consideration. It appeared iu evidence that the note sued oil was given for the purchase-money of a tract of land bought by the defendants ad an administration sale by the plaintiff. A map was exhibited at the sale on which the laud sold was delineated, and it was estimated to contain about 722 acres; but purchasers were apprised that it had not been surveyed, and that the exact quantity was unknown. It was bid off by the defendants at forty cents per acre. There was excepted out of the tract a smaller tract embraced in a conflicting survey, sold by the intestate in liis lifetime, estimated to contain 185 acres. It appeared that by reason of the conflict, which also was delineated on the map, being ascertained to contain 357 acres instead of 185, the tract purchased by the defendants contained less by about 172 acres than the estimated quantity. The deed for the laud embraced in the conflict and sold by the intestate was given iu evidence, and recited the consideration of one dollar per acre. A witness testified that the land included in tho conflict was worth two dollars and a half per acre; he was not acquainted with the lands out “ of the conflict, but there were other lands about there not so valuable.”
    The defendants asked the court to instruct the jury that if there were not 722 acres in the tract sold tlie defendants, and it was deficient by 172 acres, and that was much more valuable l ban any other part of the tract, they should allow as a credit upon the note whatever amount they found the. 172 acres to bo worth, which instruction the court refused. Tlie jury returned a verdict for tlie plaintiff for tho amonut of the note, after deducting1 the price of 172 acres, at forty cents per acre, on which the court gave judgment, and the defendants appealed.
    Note 101. — Crayton v. Hunger, ante, 285.
    Appellants, for themselves.
    
      Yoakum 8f Campbell, for appellees.
   Wheeler, J.

The only error assigned which requires notice is the refusal of the court to give the instructions aslced by the defendants. And in this wo are of opinion there was no error. Tlie instruction asked the court to assume facts not in evidence. There was no certain evidence of the relative value of tlie laud sold by the plaintiff and that previously sold by the intestate. Tlie fact that the former did not command as high a price at the administrator’s sale as the latter had been sold for by the intestate, o.r as it was estimated to be worth by a witness, was too uncertain a criterion of the relative value of the lands embraced in tlie several tracts to base a verdict upon of any certain present relative value. The subject was susceptible of direct and certain proof; the burden of proof was with the. defendants. It devolved on them to make out their defense by evidence so certain as to affoi'd the jury data on which to rest their verdict. This they have not done. 'There was no evidence of any misrepresentation or of any mistake as to the quality of the land purchased by the defendants. And if it had been of no value the plaintiff might well have insisted on the application of tlie maxim caoeat enuptor. But there was no evidence of the actual present value of the lands embraced in either tract. There was, in a word, no evidence which would have warranted the jury in finding that there were 172 or any other number of acres in any particular locality supposed to have been embraced, but not in fact embraced, in the defendants’ purchase, which was of greater value than that actually included in it, and the instruction, therefore, which was based upon the assumption that there was such evidence, was rightly refused. The evidence did not authorize a verdict more favorable to the defendants than that found by the jury. They therefore have no just cause of complaint. The judgment is affirmed.

Judgment affirmed.  