
    BARTON v. BIRD.
    A sells to B a tract of land supposed to contain 1000 acres, and agrees that if there should not be that quantity, a deduction from the price shall be made in proportion to the quantity deficient—it is afterwards discovered that there is not 
      the quantity contracted for, and also that a part of the land intended to be sold, is not included within the lines of A’s grant, upon which he procures it to be amended, so as to include that part; and also other land not intended to be purchased, making in the whole 1000 acres. A shall be compelled to convey all the land intended to be sold, which he has a tititle to under his amended grant, and to deduct for the quantity which may then be deficient, & B shall not be compelled in lieu of this deduction to accept of the land included within the lines of the amended grant but not intended by the parties to be included in the original contract.
    
      Equity.—The plaintiff purchased a tract of land of the defendant on the north side of the river Holston, including a bend called the steep rock, at four dollars an acre, estimating the tract at a thousand acres ; bonds were exchanged on the ninth of May 1798.
    The plaintiff gave his bond, payable in two instalments, 15th March, 1799, and first of April, 1800.
    The defendant executed his bond to the plaintiff for a title to the tract of land on which he then lived, containing 1000 acres lying in one body on the north side of Holston river, as described in the patent for that quantity. Possession to be given at the time of the first payment, and the deed to be made on the day of the second payment.
    
      This bond binds the defendant to warrant a thousand acres in the tract, but if there should not be that quantity, a deduction to be made in proportion to the purchase money which is four thousand dollars.
    The Bill was filed in June 1800.
    The plaintiff states that previous to his purchase, the defendant shewed him the land lying in the bent.
    
      
    
    They went to a sugar tree corner marked C. at the lower part of the land, thence up the meanders of the river, around the bent until they came to a poplar, gum and hickory, marked A, from which the defendant told the plaintiff, that the tract ran north 140 poles, and from thence to the beginning.
    That he saw the grant under which the defendant claimed, which seemed to accord with the description.
    The grant which was offered in the course of the hearing, appeared to have been altered by the Secretary of North Carolina, on the 10th of February 1801,, agreeably to an order of the county court.
    The land included in the grant as appeared from the plat of the first survey, took in the bent of the river, and accorded with the land shewn to the plaintiff. But the courses called for in the surveyor’s certificate did not; nor did such certificate, or the original grant, call for the meanders of the river at all, which the surveyor intended from his plat.
    Upon trying these courses, it appeared they did not include the land as described in the plat, but, that contained within the lines marked, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13. The quantity of land contained in the figure, C, A, B, by survey in this cause, is 763 acres 1 quarter and 30 poles, on the north side of the bent ; between the river and the courses of the grant, 101 acres.
    The figure C, A, D, E, F, G, represents the courses of the grant, as it stands altered and contains 1000 acres. The bill states that the land shewn was what the plaintiff expected to purchase, and was the inducement to the contract.
    It also charged that the plaintiff having ascertained that there was a deficiency of 236 acres two quarters and two poles: and having paid the first instalment, when the 2nd became due, demanded of the defendant, a deed for the quantity, as ascertained to be in the tract; to deduct for the deficiency, and he would pay the balance agreably to the bond.
    This the defendant refused, alledging that he would get land of Gilbreath adjoining, and would make up the thousand acres that if the plaintiff did not choose to take it so, he would not convey 101 acres, which lay in the bent, and was not within the courses of the grant.
    The defendant, filed his answer on the 30th of March, 1801. He admits that he shewed the land to the plaintiff, but says that he was then mistaken, with respect to the land included in the grant as appeared afterwards, when the courses were tried. The original grant was dated the 15th of December, 1791, No.131.
    He states that it was his understanding of the contract, that he should deduct not at the rate of four dollars an acre, for the deficiency, but in proportion to the value of what should be deficient, and concludes with an averment, that he has been ready to convey since the alteration of the grant, which rectified the mistake of the surveyor, and now includes the land shewn upon the sale, and called for by the bond.
    There was evidence on both sides, but the plaintiff’s bill appeared to be, in every material point supported by proof.
    The defendant proved that he had offered the plaintiff a deed for the land contained in the grant as rectified, containing 1000 acres.
    The principle point for the consideration of court was, whether the plaintiff could be compelled to receive a deed for the whole land contained in the grant as altered, or for only 763 acres, 1 quarter and 30 poles.
    Campbell for the plaintiff.
    —A court of equity will not compel a person to take a doubtful title. Donelson claims the land above, on the river, Gilbreath on the north of the tract shewn.
    The plaintiff had the defendant’s title, and the land shewn, in contemplation. He should not be turned over to rest his title on Donelson’s or Gilbreath’s claims.
    
      The contract as intended by both parties, ought to be carried into effect, nor can the court go beyond it. 
    
    He insisted, from a fair construction of the bond given for the title, that the defendant could not compel the plaintiff to take land, not originally in contemplation of the parties, though the grant was since rectified, or rather altered so as to include 1000 acres ; as to the construction of contracts, he cited 1 Pow. C. 373, 3 Vez. Junr. 692, 3.
    Whiteside for the defendant.
    —If the plaintiff claims the strip of land on the river of 101 acres, which is on the north side, not included in the grant before its alteration, and within the courses of the grant rectified; it must be predicated upon the rectification of the grant; for it was not included as it originally stood. He ought to take the grant altogether as it stands corrected, or not at all. The court will not surely say that the plaintiff shall be permitted to point out such part as may suit him in the rectified grant, and say such other part in the same grant I will not take. He ought to be confined to the grant as corrected altogether, or in like manner to the original before alteration. 
    
    The contract as to the conveyance of 1000 acres ought not to be invalidated, because there was a mistake in the original grant; for where both parties are equally under a mistake, which appears to have been the case, a court of equity will not avoid the contract.
    It is not material whether the defendant was able to convey the whole 1000 acres at the time of the bond or not, provided he was able at the time the contract was to be fulfilled, or is now able. 
    
    It was further insisted, that one of the witnesses proved, that the defendant claimed a cabbin and the land upon the river, above the poplar, gum and Hickory, which, together with the averment in the answer to the same effect, is sufficient to authorise this court to consider it as extending the length of including the whole 1000 acres.
    
      The plaintiff from this proof has certainly claimed over the lines which he pretends were shewn him; this is evidence, that the contract included the whole amount of 1000 acres. 
    
    The alteration of the grant is conclusive upon all parties, that a mistake was committed by the surveyor in running out the land originally, and that the grant as it now stands, is really such as it ought to have been. Our act is for the correction of errors of this kind.
    
      
      .) 1 Pow. Cont. 371. 2 Pow. Cont. 38.
    
    
      
      .) 4 Hen. & Mun. 184.
    
    
      
       2 Pow. on cont. 263, 267, 2 Atk. 562, 2 P. Wm. 630.
    
    
      
      .) 1 Ver. 161, 1 P. Wms. 53-2 Atk. 19.
    
   Per curiam.

(White J. had been employed and consequently was absent.)

The assent of parties to a contract is essentially necessary to its obligation force. The minds of parties having an equal view of the subject matter, should concur,; where this concurrence is complete in all material points, the contract should be inviolable. To discover this concurrence, respecting the subject of the contract under consideration, is the first object of the court.

The statement made by the plaintiff in his bill, seems to us to be materially correct.

The plat annexed to the grant which the defendant held at the time of the purchase, and which was then in his possession, exhibits a view of the land as being entirely on the north side of the river, and nearly as represented to the plaintiff when shewn to him, as proved by several witnesses.

The defendant states in his answer, that at the time of the contract he did not know of the mistake in his grant. The grant as it originally stood, calls to run certain courses up the river, which the plat shewed was to a poplar, gum and hickory; then north 140 poles, and from thence to the beginning. It is manifest that the defendant considered these as the bounds of the land, at the time he made the contract; and it is proved to the satisfaction of the court that he shewed them as such.

Under these circumstances the bond should for a title was given for land on the north side of the river, agreeably to the patent. What patent? It was answered the grant as it then stood, in the understanding of both parties, and as it was shewn. This was beginning at the sugartree running up the river, with its meanders to the poplar, gum and hickory; North 140 poles, and thence to the beginning.

Within these bounds, it was the intention of the defendant to sell, and of the plaintiff to purchase; and what proves it more decisively, if possible, is that the defendant carefully provided in his contract, that if there should not be 1000 acres, there should be a proportionate deduction in the price, or purchase money.

Attempts have been made to shew that the plaintiff designed to purchase the land where the cabbin is situated above, near the river; and without these lines, but no effort to prove that he ever agreed to take or consider the land on the north boundary as part of this contract.

It is on this boundary, the part of the deficieney lies, which the defendant now insists the plaintiff shall take. It is clear that none of the land without the limits, as described by the plats of the original grant was within the contemplation of the parties.

The intention of the parties must be carried into effect, but in doing this, it is objected that we shall contravene principles of practice. That by decreeing to the plaintiff 101 acres, without the course of the defendant’s original grant, we admit the correction of the grant as to that; and consequently ought as to all; or be inconsistent.

This argument may seem plausible, but is not sound; for it is admitted by the defendant’s counsel, which we think correct, that it is not material whether a party to a contract, is able to comply with it, at the time of its formation, or not; provided he is afterwards in capacity to do it.

Now it is of no consequence with this court, whether the defendant’s grant was altered or not, nor whether it were properly altered. The plaintiff has proved his contract, and we will specifically give him the benefit of it, as far as the defendant is able; but we cannot say, that the plaintiff shall recover lands which neither he nor the defendant had any idea of at the time of making the contract.

The rectification of the defendant's grant, could not enlarge or alter the contract made with the plaintiff. It was a particular piece of land, then in the view of the parties, which was the subject of the contract; and not the land which would be included in a grant thereafter to be rectified.

The alteration of a grant, cannot possibly be conclusive upon any person, except an individual with whose land it may interfere, after having notice agreeably to the act of assembly; and on the state making the alteration where the land was vacant.

Viewing the contract as stated, let it be decreed, that the plaintiff pay the defendant the balance of the price of the 763 acres 1 quarter and 30 poles, at four dollars an acre, and no more; and upon his so doing that the defendant convey to the plaintiff in fee simple, with general warranty, all the land in the bent of the river, beginning at the sugar tree, running up with its meanders to the gum, hickory and poplar, North 140 poles, and from thence to the beginning. Containing 763 acres 1 quarter and 30 poles.

The defendant to pay all costs.

Note. A question was made whether the attendance of witnesses could be taxed before the cause was set for hearing.

Per Curiam.

Campbell, J. and Overton, J.

The setting a cause for hearing in Equity, places it in a situation similar to making up an issue at law. It is a well known practice, that witnesses who attend previous to issue on the law side, must be paid by the party summoning, and cannot be taxed against the opposite party; so it would seem to us in equity, with respect to setting the cause for hearing. The attendance of such witnesses must be paid by the party at whose instance they attended. 
      
       See 1. John 595. Pow cent. 266. 7 Bro.C c 332. 2 P. W. 629. 10 Vez. Jr. 315.
     
      
       See Acts Mar. 1796 c. 20. 1801 c. 14.
     