
    *Walsh v. Hale.
    June Term, 1874,
    Wytheville.
    1.In December 1862 H sold to W two hundred and sixty-five acres of land, more or less, known as Knob Pork, purchased by H of B, and bounded by the deed of B, for $3,250, of which W paid 82,000, and gave his bond for $1,250. On a survey of the land by W, it was found there was but one hundred and ninety-nine acres, and twenty-seven acres of this was recovered by V upon a superior title— Held :
    1. W is entitled to an abatement for the deficiency of sixty-six acres.
    2. For the twenty-seven acres the value of the land recovered, whether more or less than the average of the whole tract, is to be abated.
    3. For the remainder of the deficiency, the abatement is to be according to the average price per acre of the whole tract.
    4. Confederate Contract. — The contract having been a Confederate contract, the amount of the bond is, under the circumstances of this case, to be scaled according to the value of the Confederate money at the time of the contract.
    On the 18th of December 1862, Peyton G. Hale executed a bond in the penalty of $3,250, with a condition that whereas the above bound Peyton G. Hale has this day bargained and sold unto John Walsh two hundred and sixty-nine acres of land, more or less, and known as the tract of land called Knob Fork, that P. G. Hale purchased of Samuel J. Bourn, and bounded by the deed that said Bourn made, to Peyton G. Hale; and the said John Walsh has paid in hand two thousand dollars and executed a bond for twelve hundred and fifty, as agreed upon by the said P. G. *Hale and J. Walsh; and the condition of this is such that whenever the said John Walsh pays to said Hale the twelve hundred and fifty dollars above specified, then the said Hale binds himself, his heirs, executors, administrators, &c., to make to the said John Walsh a good and lawful title to said land, and forever warrant and defend from my heirs, all other persons, &c.
    At the time this contract was made, there was an action pending by Robert Vaughan against Hale, to recover twenty-seven acres of this land; and after the contract was made the case was decided in favor of Vaughan. Walsh then had the land surveyed, and the survey showed that the tract contained but one hundred and ninety-nine acres, including the twenty-seven acres recovered by Vaughan.
    In March 1867 Walsh instituted a suit in equity in the Circuit court of Grayson county against Hale, claiming compensation for the twenty-seven acres of land recovered by Vaughan, and also an abatement of the purchase money on account of the deficiency in the quantity of the land in the tract. He afterwards amended his bill and enjoined Hale from collecting the bond.
    Hale answered, admitting the plaintiff’s right to compensation for the twenty-seven acres; but insisting that the land was sold by the boundaries of the tract, and not by the acre; and that he was not liable for any deficiency of quantity. It was admitted bj* I Hale that the price of the land was to be I paid in Confederate money.
    
      There was a report by a commissioner, and much testimony was filed as to the value of the twenty-seven acres; and this court was of opinion that it was of about the same value as the other part of the land.
    The commissioner reported the whole tract as worth *at the time Hale sold to Walsh, $2,500 in good money, and deducting the value of twenty-seven acres, which he fixed at $324, there would remain $2,176 as the value of the land held by Walsh. To this report Walsh excepted.
    The cause came on to be heard on the 4th of October 1873, when the court overruled the plaintiff’s exceptions, and confirmed the report; and being of opinion that the value of the real estate at the time of the sale, in a sound currency, afforded the most equitable rule and standard by which to scale the debt due from complainant to defendant; and that from the report of the commissioner, the real estate sold by the defendant to the plaintiff, was, at the time of the sale, worth, in a sound currency, the sum of $2,500; and that plaintiff was entitled to an abatement from the purchase money of the sum of $324 on account of the loss by superior title of twenty-seven acres of land; and adopting the rule above named to ascertain the scaled value of $1,250, the court fixed the same at $961.53, with interest from the 18th of December 1862, subject to a credit of $324 as of that date. It was therefore decreed that Hale should recover of the plaintiff the said sum of $961.53, with interest from the 18th December 1862, subject to the credit of $324 as of that date, and his costs. From this decree Walsh obtained an appeal to this court.
    Slater and Gilmore, for the appellant.
    Terry and Pierce, for the appellee.
   ANDERSON, J.,

delivered the opinion of the court.

On the 18th of December, 1862, G. P. Hale, the appellee, sold to John Walsh, the appellant, two hundred *and sixty-five acres of land, more or less, for the consideration of $3,250, of which $2,000 were paid down, and a bond given for $1,250, the balance. By a survey made since the purchase, it has been ascertained that there are only one hundred and ninety-nine acres, showing a deficiency of sixty-six acres, and that of the one hundred and ninety-nine acres, there was a better outstanding title in one Vaughan for twenty-seven acres. It is conceded that the appellant is entitled to an abatement from the price for the value of the twenty-seven acres; but for the deficiency the appellee insists that it was not a sale by the acre, but in gross, and that the purchaser is not entitled to an abatement.

In Blessing’s adm’ors v. Beatty, 1 Rob. R. 287, 302, it was said by Baldwin, J. that “the question of compensation usually arises, not in sales by the acre, but in sales for a gross sum.” And Eord Chancellor Sugden lays it down as a general rule, where the land is neither bought nor sold professedly by the acre, and a misrepresentation is made as to the quantity, though innocently, “that it is the right of the purchaser to have what the vendor can give, with an abatement for so much as the quantity falls short.” And it seems now to be settled that the purchaser, if the quantity be considerably less than was stated, will be entitled to an abatement, although the agreement contain the words “more or less.” 1 Sug. Vend., top, p. 489 to 494, bott. 324-5; Blessing’s adm’ors v. Beatty, supra.

In Portman v. Mill, 2 Russ. R. 370, cited by the same eminent jurist, the lands were described as containing three hundred and forty-nine acres, “or thereabout, be the same more or less;” and although- it was expressly stipulated in the contract that the parties should not be responsible for any excess or deficiency in quantity, *but that the premises should be taken by the purchaser at the quantity, more or less — the actual number of acres was less by one hundred — Eord Eldon said, “that as to this stipulation he never could agree that such a clause (if there was nothing else in the case) would cover so large a deficiency in the number of acres. ” This subject was considered in a case decided at this term, Hendricks v. Gillespie, and the rulings of the court in Blessing’s adm’ors v. Beatty approved.

There is nothing upon the face of the contract in this case which indicates an intention to make a contract of hazard. It is in fact a sale of two hundred and sixty-five acres of land, for, it is true, a sum in gross. The land is described as the tract known as “Knob Pork;” and reference is made to the deed of Samuel J. Bourn to the appellee for its boundaries. But whilst the land is so described, it is a sale of two hundred and sixty-five acres. It is true, it is added, ‘ ‘more or less. ’ ’ But such language is understood to apply only to small deficiencies or excesses, attributable to variation of instruments and the like, as it has been repeatedly judicially construed. When used, it rather repels the idea of a contract of hazard, and implies that there is no considerable difference in quantity, either in excess or deficiency, from that which is stated, and that the purchaser gets substantially the quantity of land he contracts for. In this case the parties evidently believed the one, that he was selling, and the other, that he was buying, two hundred and sixty-five acres, but that if there should be a small deficiency or excess of that quantity, it should not affect or vary their contract. But that there was so great a deficiency, as was afterwards shown to be, was not contemplated by either of them. There was nothing to suggest such a thought. The deed from Bourn to the *appellee, represented it to be two hundred and sixty-five acres. Both parties believed it to be as represented, and never thought of hazarding anything as to quantity. Both parties were innocently mistaken. But the quantity as represented evidently influenced the price. It is clearly a case for compensation.

As to the measure of compensation. I*or the deficiency of sixty-six acres, there can be no other measure of compensation than the average or pro rata price agreed to be paid for the whole. But for the twenty-seven acres which was sold to the appellant, and which had been recovered by Vaughan by a better adversary title, having lost it, he is entitled to its value, whether it be of greater or less value than the average value of his purchase. He has lost an identical part of the land he purchased, and he is entitled by his contract to have it restored to him, or to receive its value as a compensation. The evidence with regard to its value is conflicting. The court is of opinion, from a view of the whole case, that it is not of greater value than the average price agreed to be paid for the whole, and that such average price will be a fair compensation to the appellant for its loss. It is therefore unnecessary that any discrimination should be made between the rate of compensation allowed for the loss of the twenty-seven acres and for the deficiency of sixty-six acres.

The court is therefore of opinion that the appellant is entitled to an abatement for ninety-three acres, at the average price which he agreed to pay for two hundred and sixty-five acres, which, together with the cash payment made of $2,000, subtracted from $3,250, the whole price, will leave the balance due from him in Confederate money as of the 18th of December 1862; the scaled value only of which is due from him to the appellee. And as the balance is very inconsiderable, *and the evidence as to the value of the land is conflicting, it should be scaled according to the gold value of Confederate currency, as of the date of the contract; and further, that the injunction to the judgment which the appellee obtained against the appellant, of which he complains, except as to such balance, should be perpetuated; and that upon the payment by the appellant of such balance the appellee should be required to make him a deed with general warranty by metes and bounds, for the lands as shown by the surveys made in this cause, containing one hundred and seventy-two acres. The court is of opinion, therefore, to reverse the decree, with costs, and to enter such decree as should have been made by the Circuit court.

Decree reversed. 
      See 2 Min.Inst. [4th Ed.] 703.
     