
    *Quesnel v. Woodlief & al.
    [November, 1796.]
    Sale of Land — In Gross — Deficiency—Deduction from Purchase-Money — Mistake.—In 1788, W. owning: a tract of land called Sion Hill, field by fiim and his forefathers under a survey upwards of 100 years old, advertised it for sale, as containing about 800 acres ; and believing that, as it was an old survey, it would probably contain more than 800 acres, he afterwards sold it to Q., according as it had been held by him and his ancestors under the old survey, for £3200. (equal to £4 per acre,) offering to survey it, if Q. would pay, at the same rate, for the excess: which the latter, (who also believed that it contained more than 800 acres, as it was an old survey,) declined. Subsequent to the execution of the deed, Q. had the land surveyed, and found it to contain much less than 800 acres: whereupon, he filed a bill in cb ancery, for a deduction from the purchase money, proportion-able to tbe deficiency in the land ; which W. resisted, upon the ground, that the purchase was, in fact, of 800 acres, more or less. The court was of opinion, that although there was no fraud in the sale, yet as both parties acted under a mistake as to the quantity, the deficiency was too great for a purchaser, notwithstanding the sale was for 800 acres, more or less ; and therefore, decreed a deduction from the purchase money, in proportion to the deficiency, upon the ground of mistake. And W- was likewise decreed to give Q. an indemnity against all charges and incumbrances on the estate.
    Noel Quesnel filed a bill in the high court of chancery, against Woodlief and others, stating himself to be a native of France, but then a resident of the county of Prince George, in the state of Virginia. That late in the year 1786, he came to reside in the town of Blandford, in the county aforesaid, as a merchant, and soon became acquainted with the defendant Thomas Wood-lief, of Sion Hill, in the said county; and placed great confidence in him. That Woodlief grew embarrassed in his affairs, and offered his said tract of land, called Sion Hill, for sale, always speaking of it as containing 800 acres; and by public advertisement, of the 6th of March, 1788, asserted it to be that quantity, or thereabout. That the plaintiff hearing the same from Woodlief himself, entered into a treaty with him for the purchase thereof. That, upon the first mention of the subject, Wood-lief asked ^4000 for it, amounting to £5 per acre; which being more than it was worth, the plaintiff refused to take it at that price; but offered, afterwards, by ^letter of the 25th of April, 1788, (in which he mentioned that his counsel should examine the deeds,) £3200, believing, at the time, that the tract contained 800 acres. That, under these impressions, he subsequently became the purchaser of the same, for the said sum of £(3200, equal to £4 per acre, payable as follows, viz: ¿SO0 in October 1788, £500 in December 1789, £(500 in December 1790, £(500 in December 1791, .£600 in December 1792, and £■600 in December 1793; for which said several sums, (except the first,) he gave his bonds to the said Woodlief. That the plaintiff, after the purchase, intended to require a survey of the land; but, having understood that it had been, in Woodlief’s family for many generations; and, having never heard, that any part of it had been sold, he omitted to do so, determining, however, to have the deed prepared by William Davies, his counsel, as he himself was a foreigner, not well versed in the American language, and still less acquainted with conveyancing. That the contract was not finally concluded until Monday the 28th of April, 1788, when the plaintiff being at the house of Edmund Ruffin, jr. the defendant, in the said county of Prince George, a deed was proposed to be drawn for the said tract of land, by the said Ruffin, as well as a deed of trust upon the same, to secure payment of the purchase money: to which, the plaintiff at first objected, as wishing to have the aid. of his counsel, the said Davies ; but, being pressed thereto by Woodlief and Ruffin, (who declared himself capable of preparing the deed,) he at length assented, believing Ruffin to be both capable and disinterested : and the deeds for the said tract of land called Sion Hill, describing it as containing 800 acres, “more or less,” were accordingly executed upon that day, the deed of trust, however, expressing the quantity to be 800 acres, without the addition of the said words, “more or less.” That the plaintiff believed, at the time, that there were 800 acres; and, as possession was not to be delivered until a future day, he intended to have it surveyed before he occupied it; of which Woodlief was not ignorant. That *the plaintiff, immediately after the execution of the deeds, and before possession was delivered, sent for Harris, the surveyor of the county, for that purpose; but Woodlief being from home, the survey was not made until September 1788; when, to the astonishment of the plaintiff, the tract was found to contain only 510 acres, although, by an after survey, it appeared to contain 577 acres. That Woodlief, in asserting the tract to contain 800 acres, must have relied on general opinion, although he could not have been ignorant, that two parcels of land had been conveyed at different times, between some branches of the family nearly allied to him ; which having finally come into his possession, or the possession of his brother, from whom he inherited the estate, he had himself conveyed, a part thereof, to his brother Peter Woodlief, who was then in possession of 230 acres, formerly parcel of the tract; and which, added to the quantity then held by the plaintiff, would make up the 800 acres. That this was corroborated by the circumstances. For it appeared by a patent dated the 25th of July, 1638, that the ancestors of the defendant Thomas Woodlief, were in possession of the tract of land, called Sion Hill, before that period. That John Woodlief, being in possession of the said tract of land, on the 11th of February, 1737, devised his whole real estate, and the greater part of his personal, to his son. John. That the said John Woodlief, the son, (by the name of John Woodlief, senior), and Catharine his wife, on the 14th February, 1761, conveyed 202 acres to Campbell: which, from the boundaries, did not appear to have been part of Sion Hill. That the said last mentioned John Woodlief, on the 10th of March, 1761, conveyed to Peter Woodlief, his near relation, 100 acres, called Deep Bottom; which joins the land conveyed to the plaintiff, and made part of the original tract; and, on the 15th of December, 1770, conveyed, to his eldest son, John Woodlief, junior, 130 acres, being also part of the Sion Hill tract: Which two tracts of 100 and 130 acres, added to the 577, make up the 800 acres sold to the plaintiff. That the said *last mentioned John
    Woodlief, junior, being in possession of the 130 acre tract, on the 17th of February, 1775, devised, to his nephew, John Woodlief, son of Peter Woodlief, and elder brother of the defendant, Thomas Woodlief, the residue of his estates, which included the lands called Sion Hill; and, in order to re-unite the Deep Bottom tract to Sion Hill, devised to his nephew, Peter Woodlief (brother to the said last named John Wood-lief, and the defendant, Thomas Woodlief), ^250, provided he conveyed, to his brother John aforesaid, the said Deep Bottom tract of 100 acres. That the said last mentioned John Woodlief, on the 4th of February, 1777, devised several personal legacies charged (as well as the personal legacies left by his uncle, the said John Woodlief,) upon his lands; all of which he gave, by the residuary clause of his will, to the defendant, Thomas Woodlief. That the defendant, Thomas Woodlief, had never paid the £250; and had actually conveyed the said tract of 130 acres to his said brother, Peter Woodlief, who still kept the Deep Bottom tract. Which proved that the Sion Hill tract, although spoken of as 800 acres, was, in fact, but 570 acres; and was called 800 acres, only, when the said two tracts of 100 and 130 acres were united to it. That, on the 28th of April, 1788, it being suggested that the defendant Thomas Wood-lief’s estate was pledged to the defendant, Edmund Ruffin, junior, and his father, Edmund Ruffin, senior, an endorsement, by way of release, was made on the back of the deed, but no consideration was expressed. That the said Edmund Ruffin, junior, on the 3d of May, 1788, undertook to guarantee the title to Sion Hill, so far as the said incumbrances might extend: which added to the plaintiff’s confidence, that there were 800 acres, as the said Edmund Ruffin, junior, and Edmund Ruffin, senior, his father, had both lived adjoining to it. That the defendant, Thomas Wood-lief, having passed away one of the plaintiff’s bonds to Claiborne, the defendant, Edmund Ruffin, junior, gave the plaintiff notice not to pay it. That 60 acres of the Sion Hill tract had been sold by *the sheriff of Prince George for the taxes of 1787; and John Baird had a claim for 50 acres. That, on the 2d of October, 1708, a certain John Woodlief, senior, conveyed 70 acres of land to Stainback, described to be part of the manor plantation, bounded by Deep Bottom run. That, on the 27th of October, 1788, the plaintiff gave the defendant, Edmund Ruffin, junior, notice, that he would not pay the bonds, and that he claimed an allowance for the deficiency in the land sold to him by Wood-lief : Which notice he also gave to the said defendant, Thomas Woodlief, requiring that he should either make the deduction, or annul the contract. But that the said defendants, Thomas Woodlief and Edmund Ruffin, junior, had directed Harrison, the trustee named in the deed of trust, to proceed to sell the land, in order to satisfy the bonds for the purchase money. The bill, therefore, interrogating the defendants as to the matters aforesaid, and particularly whether Quesnel was shewn the boundary lines, before he purchased, prayed for an injunction, and for general relief.
    The answer of the defendant, Thomas Woodlief, states, that after having previously advertised Sion Hill for sale, he, about the month of April 1788, contracted to sell it to the plaintiff for ^3500; but, as the contract was by word of mouth only, and no witnesses to it, the plaintiff refused to comply, as he knew the defendant’s embarrassed situation ; to relieve which, he afterwards sold it to the complainant for ^3200. That he had, repeatedly, offered the said tract of land, to the plaintiff, at the supposed quantity of 800 acres; or to survey it, if the plaintiff would pay for the excess; which the plaintiff, after going over the land, refused; and has since declared, that he thought, from the boundaries, that there must be more than 800 acres in the tract. That, on concluding the bargain, the deeds drawn by col. Davies, not corresponding with the intention of the plaintiff and defendant, were rejected; and the defendant, Edmund Ruffin, jr. was requested, by the parties, to draw' others for that purpose; which he consented to do: and Monday, the 28th *of April, 1788, was fixed on, by the plaintiff, as most convenient to him, to attend at the house of the said Edmund Ruffin, jr. ; which he did, and the deeds were, there, executed, the plaintiff declaring himself better pleased with them, than with those prepared by col. Davies, whose assistance, he did not express any desire to have; and sometime afterwards, declared himself satisfied with the purchase, and wished people would suffer him to make his own bargains. That several years, before the date of the sale to the plaintiff, the defendant has listed 900 acres of land with the commissioner; and, prior to the said sale to the plaintiff, had sold the tract of 130 acres to his brother, the said Peter Woodlief; leaving the supposed quantity of 770 acres, which justified his advertising the Sion Hill tract, as containing 800 acres, or thereabout: but, at the time of the advertisement, he verily believed that it contained fully 800 acres. That the tract of 130 acres lies on the south-side of Deep Bottom run ; never was considered as part of the Sion Hill tract: and was in possession of the said Peter Woodlief, for some time, before the treaty between the plaintiff and the defendant commenced. Denies combination, &c.
    The answer of the defendant, Edmund Ruffin, jr., states, that in April 1788, he was informed by the defendant, Thomas Woodlief, that he was about to conclude a bargain with the plaintiff for Sion Hill; and was requested to attend at Blandford, in order to see part of the purchase money paid; which Was to discharge two executions, against Woodlief, on replevy bonds, to which the plaintiff was security. That the defendant did attend; when the plaintiff refused to pay the money, unless the defendant would relinquish all claims, the defendant, or Edmund Ruffin, sen., his father, had upon the land; which the defendant readily did, as he knew there were none at that time; all such having been previously cancelled, without ever having been recorded. That the plaintiff, thereupon, paid part of the purchase money ; but, before he did so, he and the defendant went to *col. Davies, and observed to him, the variance between the actual contract, and the deeds, which the said Davies had drawn. That some conversation ensued; after which, the plaintiff and defendant left him; and returning to the store of James Campbell, the plaintiff agreed to make the payment. That it was then proposed, that the deeds should be drawn by the defendant; for which purpose, the plaintiff furnished memoranda of the terms of the bargain; and in conformity thereto, the defendant prepared the deeds. That the parties met at' the house of the defendant, on the 28th of April, 1788, (being Monday) the day fixed, on by the plaintiff himself for the purpose: at which time, the defendant delivered the deeds to the plaintiff, who, assisted by William Ragsdale, jr. (a young gentleman who wrote in the clerk’s office, and was tolerably well acquainted with conveyancing) perused them; and expressed his approbation of them, in the presence of several disinterested persons, adding that he was better pleased with them, than with those which had been prepared by col. Davies. That, while the plaintiff was perusing the said deeds with Ragsdale as aforesaid, when they came to the words, “more or less,” he asked whether Woodlief would not make a deduction for any deficiency in the quantity of land, provided, upon survey, the tract proved to contain less then 800 acres? To which Woodlief answered, that he would, provided the plaintiff would pay for the excess. That the plaintiff, who appeared not to relish the proposition, made no reply; but executed the deeds and bonds, without being pressed thereto by any person. That the defendant believes, that both Woodlief and the plaintiff thought the tract would contain more than 800 acres, from the circumstances of its being an old survey. That the defendant had no inclination, or inducement, to deceive the plaintiff, as there would have been land enough to pay him, notwithstanding the deficiency, which he did not suspect, and he had other ample securities. That the defendant believed, at the time, there were 800acres; and, under that impression, had, theretofore, taken two deeds of *‘trust upon it, as containing that quantity, more or less, as by the said deeds, cancelled previous to the sale to the plaintiff, will appear. That the tract of 130 acres, and the Deep Bottom tract of 100 acres, were no part of the Sion Hill tract, which was entailed; and therefore could not be aliened before the year 1776. That the John Woodlief, who sold the 130 acres to the said John Woodlief of Sion Hill, was no relation of that family; but was the husband of the said Catha-rine mentioned in the bill. That the defendant does not believe that Baird has any title to the said 50 acres of land referred to in the bill. That the defendant wrote the wills of John Woodlief the elder and younger; and is confident that neither of them meant to charge the real estate with the payment of the legacies; which would have been useless, as the personal estate of both was fully sufficient to pay them ; and the defendant knows that a considerable part of them has been actually paid. That the bond, in the hands of Claiborne, was withdrawn from the defendant Woodlief, under a promise to return it.
    The answer of Harrison, the trustee, admits the deed of trust; and Ruffin’s direction to him to sell the land, in order to satisfy the purchase money.
    There was a general replication to the answers; and the following depositions were taken.
    William Ragsdale, jr. says, .That, on Monday, the 28th of April, 1788, he was desired, by the defendant, Edmund Ruffin, jr. to draw a deed, from Thomas Woodlief to Noel Quesnel, for the Sion Hill tract of land; and did so.' That the plaintiff requested him to read it, to him the said plaintiff, that he might compare it, with that drawn by col. Davies, which the plaintiff held in his hand; and when the deponent had finished reading it, the plaintiff expressed his satisfaction with it; and said he liked it better than the one col. Davies had drawn. That when the deponent, in reading the deed to the plaintiff, came to the words “800 acres, more or less,” the plaintiff asked Thomas Woodlief, if there should not be the full quantity of 800 acres, he would make *a deduction from the purchase money, for whatever land might be wanting? To which Woodlief answered, he would, if the plaintiff would pay for whatever surplus land there might be at the rate of per acre. That the deponent wrote the bonds, or great part of them, for the purchase mone3; saw them executed; and heard the plaintiff express no desire, to have the land surveyed.
    James Campbell. That, on Quesnel’s telling him and his partner Wheeler, that he had purchased Sion Hill, they advised him to consult col. Davies; and have a proper right made to him. That Quesnel told them “the tract contained 800 acres; but as it was an old survey, he supposed it would contain more land, having been told that was common in old surveys.” That some time afterwards, Quesnel, Woodlief and Ruffin, jr. called at Campbell & Wheeler’s store, about the land, and the tract was said to contain 800 acres; but that there might be more or less; and the first was most probable. That Quesnel after-wards told the deponent, “he had taken the land, as Mr. Woodlief held it, for 800 acres, more or less.”
    Luke Wheeler. That Quesnel consulted him and Campbell about the purchase; and they advised him to consult col. Davies, respecting the titles. That Quesnel, at that time, informed him, there was computed to be 800 acres of land; but being an old survey, it was expected to contain more, as he understood such surveys' generally contained more than the grant expressed.”
    John H. Fitzgerald. That he was present at the execution of the deed, from Thomas Woodlief to Quesnel; and heard Quesnel say, he was better pleased with it, than with that drawn by col. Davies; and that he wished people would let him make his own bargains. That, after it had been discovered by Harris’s survey, that there was a deficiency in the land, the deponent heard Quesnel say, he -had bought Sion Hill for 800 acres, more or less.
    Francis Eppes. That he was present when the deeds for the land were executed; and always understood that Quesnel had bought it for 800 acres, more or less. *Peter Woodlief. That the sheriff and commissioner were not upon the 60 acres of land, when they were sold for the taxes. That the said 60 acres are part of the Deep Bottom tract, and of the 130 acre tract That they are not part of the Sion Hill tract; and that there was sufficient personal estate of Thomas Woodlief, on the land, at the time of the sale by the sheriff, to satisfy the taxes.
    William Davies. That Quesnel- (who appeared to understand very little of the English language advised with him about the purchase; and he drew a deed and mortgage for the land: which Quesnel, after-wards, told him were objected to by the other parties,- who required a-deed of trust; and the deponent cautioned him against the execution of it; but he did not readily understand the distinction, which the deponent endeavoured to impress upon him. That he seemed to be confident, as to the quantity of the land; and appeared to be anxious to make the purchase.
    Ulrick Mark. That Quesnel came to reside in Petersburg in the latter end of the year 1786, as a merchant; and was so unacquainted with English, that he stood in need of an interpreter in his commercial transactions.
    Francis Stainback. That he was overseer for John Woodlief at Sion Hill, until 1777; and, afterwards, for Thomas Wood lief, until discharged: And that he always thought the Deep Bottom tract was part of Sion Hill, “as that was the part of the land on which we lived, and where Peter Wood-lief now lives.”
    The court of chancery ordered a survey to be made by the county surveyor: And Robert Turnbull, the surveyor, on the 15th of September, 1794, returned a plat and survey; by which it appeared that the Sion Hill tract contained 608 acres, 1 rood, and 13 perches.
    The exhibits, filed in the cause, were,
    1. Thomas Woodlief’s advertisement for the sale of Sion Hill, dated the 6th of March, 1788; and describing it, as containing “about 800 acres.”
    *2. The deed, from Thomas Wood-lief, to the plaintiff, for the Sion Hill tract of land, dated the 28th of April, 1788; the consideration .£3200; and describing it as “containing eight hundred acres, more or less, being the same tract of land devised to the said Thomas, by his late, brother, John Woodlief, excepting-a small tract sold by the said Thomas to his brother Peter Woodlief.” There is a covenant in the said deed, that Woodlief had a good title to the land, free from incumbrances; had power to convey the same to the plaintiff in fee simple; would make further assurance when reasonably required; and would defend the title.
    3. The release from Edmund Ruffin, sen. and Edmund Ruffin, jr., dated the 28th of April, 1788.
    . 4. The deed of trust from Quesnel to Harrison, to secure payment of the purchase money to Woodlief, dated the 28th of April, 1788, and describes the land as “containing, by estimation, eight hundred acres, being the same land lately purchased, by the said Noel Quesnel, of the said Thomas Woodlief. ”
    5. The survey made, by Harris, on the 10th of September, 1788, making Sion Hill to contain 510 acres only.
    6. The will of John Woodlief, senior, dated the 11th of February, 1737; which, after devising some personal property to his wife, makes his son John residuary devisee of 1 ‘all the rest of his estate, both real and personal.”
    7. The deed from John Woodlief, senior, and Catharine his wife, to John Campbell, dated the 14th of February, 1769, for 202 acres of land; which the bill admits does not appear, from the boundaries, to be any part of the Sion Hill tract.
    8. The deed from John Woodlief to Peter Woodlief, dated the 10th of March, 1761, for ‘ ‘one hundred acres of land commonly called and known by the name of Deep Bottom, and now in possession of the said Peter Woodlief, and is the tract of land which he now lives on.”
    This is the tract of land conveyed by Poythress to John Woodlief, by deed of the 12th of November, 1754; *which describes it, as “one hundred acres of land, more or less, commonly called and known by the name of Deep Bottom, situate, lying and being in the said parish of Martins Brandon and county of Prince George, and is bounded as followeth, on the north side by Deep Bottom run; on the south side by Richard Bland’s land; on the east side by John Woodlief’s land; and on the west side by Thomas Poythress’s land.” Which necessarily shews it was not part of the Sion Hill tract, then owned by the said John Woodlief.
    9. The deed from John Woodlief, senior, and Catharine his wife, to John Woodlief, jr., for 130 acres, dated the 15th of December, 1770.
    This John Woodlief, senior, the answer of Ruffin says, was no relation of the Sion Hill family. Consequently, these 130 acres never were part of the Sion Hill tract, which had been entailed for ages; and, therefore, could not be aliened prior to the year 1776.
    10. The will of John Woodlief of Sion Hill, dated the 17th of February, 1775; which devises as follows, “if my nephew Peter Woodlief, shall, so soon as he has attained the age of twenty-one years, make a good and sufficient deed to his brother John Woodlief, for that tract of land and plantation known by the name of Deep Bottom, which land was devised to the said Peter Woodlief, by the last will and testament of his father Peter Woodlief deceased, then, and in that case, I give and bequeath to my said nephew Peter Woodlief two hundred and fifty pounds.” And, after some personal legacies to his other nieces and nephews, devises “all the rest and residue of his estate both real and personal to his nephew John Woodlief.”
    11. The deed from Thomas Woodlief to Peter Woodlief his brother, dated the 21st of July, 1787, for the 130 acre tract of land.
    12. Ruffin’s obligation to repay the first payment to Quesnel, if the Sion Hill tract should appear to be incumbered.
    *13. Quesnel’s notice to Ruffin, on the 27th October, 1788, that he would not pay the full amount of his bonds for the purchase money, as the land, upon a survey made, had proved deficient in quantity.
    14. A notice by Quesnel, in the newspapers, on the 28th of October, 1788, to the same effect.
    15. The alleged memorandum of the proposition of Quesnel to Thomas Woodlief, to purchase the Sion Hill tract of land at ^3200; which requires the land to be surveyed, and warranted not to contain less than 800 acres.
    This paper is without date, is not signed, nor in any manner authenticated; and the answer denies it.
    16. The letter which the plaintiff alleges he wrote to Woodlief on the 25th of April, 1788, in these words, “Mr. Woodlief, you tendered me at Mr. Armstead’s some propositions for acticles of agreement between you and me, respecting the purchase of your land. You have signed them, but before I either agree to them or sign them, I wish to have them or a copy to take counsel upon them, as I am not well acquainted either with the language or the laws of the country. If I like them, I will inform you, if not, I will return them to you some time this evening or to-morrow morning, if you will let me know where to find you in town. I am desirous to purchase your land, and am only anxious to be safe in what I am doing. I wish to have the business concluded as soon as possible, as delays are inconvenient to me, and no doubt disagreeable to you.”
    This paper is not signed; nor, in any manner, authenticated.
    17. A copy of a declaration, for the benefit of Peter Woodlief, upon the guardian’s bond given by Thomas Woodlief, as guardian of the said Peter Woodlief and George Woodlief. But the date of the suit, or whether it was still depending, does not appear.
    18.The notice from Edmund Ruffin, jr. to Quesnel, not to pay the bond in Claiborne’s hands.
    '*19. A certificate from the commissioner of the land tax, that Thomas Woodlief, in the year 1786, listed his lands, as containing 900 acres.
    20. Ruffin’s receipt to Woodlief, dated 8th August, 1788, for Quesnel’s bonds for the purchase money; which was to be applied to the discharge of debts due to Ruffin and his father.
    21. Copy of a bill in chancery filed by John Cox and Hannah his wife, late Hannah Woodlief, against Thomas Woodlief, (as residuary devisee of John Woodlief,) Noel Quesnel, Edmund Ruffin, jr., and Edmund Harrison, claiming payment out of Sion Hill, of a legacy of ¿500, left the said Hannah, by the said John Woodlief. But there is no certificate, or other evidence, that the suit is still depending.
    22. A paper purporting to be articles of agreement between Thomas Woodlief and Noel Quesnel, dated the-day of April, 1788, stating, 1 ‘That Thomas Woodlief hath bargained with and sold to Noel Quesnel, a tract of land lying on James river, whereon the said Woodlief now resides, for the sum of three thousand two hundred pounds, to be paid, &c.”
    This paper is not signed by the parties, or otherwise authenticated. There is, however, endorsed upon it, what purports to be a release by the two Ruffins, dated the 28th of April, ’88, and signed by them, with the initials of their names; but it is without any witnesses, or other authentication.
    23. A copy of the auditor’s certificate, relative to the sixty acres of land sold for taxes by the sheriff of Prince George county.
    24. A paper purporting to be a bond from Woodlief and Ruffin, jr., dated 28th April, 1788, for the indemnity of Quesnel, in case Sion Hill should prove to be incumbered by deed or mortgage.
    25. A copy of the deed from Peter Poy-thress to John Woodlief, dated the 12th of November, 1754, for the Deep Bottom tract of land of 100 acres.
    *26. An old cancelled mortgage, or deed of trust, dated the 21st of October, 1784, from Thomas Woodlief to Edmund Ruffin, senior, and Edmund Ruffin, jr., upon Sion Hill, which it describes as “containing 800 acres, more or less.”
    27. The patent to John Woodlief, (probably the father of him who afterwards sold the'202 acres to Campbell, and who was no relation of the Sion Hill family,) for 200 acres of land.
    28. Deed from John Woodlief, senior, to William Stainback, dated the 2d of Octo^-ber, 1708, for 100 acres of land; which it describes as part of the plantation on which Woodlief then dwelt; and as being “part of a tract of land taken up and patented by my father captain Woodlief deceased; and by my eldest brother Mr. George Woodlief, conveyed and made over to me, ye 15th September, 1671, bounded on the north side of the running water of the Deep Bottom; west on the dividing bounds between Mr. Poythress’s lands and mine; east on the lines it parts my cosson John Woodlief’s land and mine; south to the said Deep Bottom running water, on the line that parts Mr. Bland’s land and mine, bearing by patent 100 poles in breadth ; t>3 estimation seventy acres-more or less.”
    29. The deed of mortgage, (drawn by colonel Davies), from Quesnel to Woodlief, to secure payment of the purchase ■ money; which describes the land, as “all that tract of land lying in the county aforesaid, containing eight hundred acres, more or less, bounded on the east, by the land of Richard Bland, on the south by the land of Peter Woodlief, on the west by the land of Edmund Ruffin, senior, and on the north by James river, being -the same tract or parcel of land conveyed by deed of indenture by the said Thomas Woodlief to the said Noel Quesnel, bearing even date with these presents.”
    The deed (drawn by colonel Davies) from Woodlief to Quesnel, is not in the record, although called for by Ruffin’s answer. ^There is no evidence that Baird, or any other person, ever set up a claim to the fifty acres mentioned in the bill.
    The high court of chancery dismissed the bill, upon a hearing, with costs; and Ques-nel appealed to the court of appeals.
    Wickham, for the appellant.
    There was direct fraud practised upon Quesnel, who was a foreigner, and unacquainted with the language and customs of the countrj: Whereas Woodlief was a native, resided on the land, and was well acquainted with the title and boundaries, of which Quesnel was ignorant. Woodlief both advertised and spoke of the land, as containing eight hundred acres; but the surveys which have been since made, prove that there was much less. Campbell says, that Woodlief and Ruffin, at the meeting at his store, spoke of the tract as containing eight hundred acres, and probably more, as it was an old survey; which is not produced: And the vendor must have known, that there was less than that quantity; for his own possession, added to his familiar acquaintance, must have convinced him of it; and his deed to his brother, Peter Woodlief, had taken off 130 acres. The circumstances, which took place, at Ruffin’s, when the deeds were executed, ■ shew that there was a misgiving, in the mind of Quesnel, as to the quantity; and that, bereft of the aid of his counsel, he fell a victim to the influence of his adversaries.
    But, if there was no actual fraud, there was, at least, misrepresentation without guilt; that is to say, such a representation as, though not fraudulently made, misled the appellant; and that produces the same Consequences. For the purchaser acted under delusion, and contracted under ignorance of the true circumstances: Which ought to have been unfolded to him, and opportunity given to consult his counsel. But as this was not done, he is not precluded from relief; for the deficiency in the land is excessive; and he ought not to have been exposed to the hazard of it, without *all the time to deliberate and consult his counsel, which a man, in his isolated situation, had a right to require.
    Besides, there was a concealment of an important fact; for Quesnel was not apprised of the sale of the sixty acres, by the sheriff, for the taxes: And whether this arose from design, or inadvertence, will make no difference; for either way,- it was a fact, which Quesnel was interested in knowing; and therefore, he ought to have been informed of it.
    But waving all this, and coming to the actual contract between the parties: Ques-nel alleges, that he meant to give ^3200 for eight hundred acres; and that he never intended to pay that sum for less: Which is not contradicted b3 any testimony in the cause: for if he did not agree, at Ruffin’s to Woodlief’s offer to survey, he did not disagree;- and the insertion of the words more or less in the deed, is not important, for they are the usual language ■in all conveyances, and are confined to small deficiencies.
    The diminution of the land is so great, that it produced such an inadequacy in the contract, that, if there had been no deed, a specific performance, upon a bill filed by the vendor, would not have been decreed, without a correspondent deduction from the purchase mone3: And the conveyance is but a form, which only changes the' plaintiff into a defendant, but does not bar the equit3; for the same principle exists, and entitles the vendee to relief, notwithstanding the deed. 2 Ves. 1SS; Pow. Contr. 1S2, 156.
    But there was an actual defect of title in the vendor; for the land was liable to the legacies left by the two Woodliefs: which are not proved to have been satisfied: So far from it, Cox’s suit shews, that that due to his wife never has been paid; and whether the rest have been discharged, does not appear.
    Call, contra.
    There was no fraud prac-tised upon Quesnel, who has the benefit of the contract, precise^, as be made it. For there is not the slightest proof of any deception. Woodlief never spoke of any thing, but the Sion *Hill tract: which he honestly believed to be more than 800 acres ; advertised it, as containing about that quantity; and offered to survey it, which Quesnel declined. The execution of the deeds was mutually voluntary; and Quesnel was under no embarrassment; for the whole subject had been previously discussed and settled in Blandford, after a conversation between himself, Ruffin and col. Davies, relative to the nature of the contract, and the provisions of the deeds: And he met, according to his own appointment, at the house of Ruffin, to execute those that were to be drawn by that gentleman; which are as well and faithfully drawn, as any counsel could have drawn. Nor did he ask for time to deliberate, or consult his counsel, but declared himself better satisfied with them, than with those prepared by col. Davies; which he held in his hand, and compared with the new deeds, prior to the execution thereof. After which, it is in vain to say, that he was imposed upon, or that he stood in need of time to deliberate, Or consult his counsel.
    Neither was there any misrepresentation. For the whole communication on the part of Woodlief was, that it was the ancient family seat, which had been held for a long; succession of generations, under the old survey; and the whole of this proves to be true. Under these circumstances, and with a full knowledge of every thing, Ques-nel purchased upon his own view of the area; for the bill interrogates the defendants, whether the plaintiff was “shewn the boundary lines of the tract of land, previous to his purchase?” And the answer of Wood-liei, which is responsive in that respect, expressly states, “that the complainant went over the land, seemed well satisfied both with the quality and quantity, and rejected the offer of having it surveyed, as had been proposed by the respondent; and has since declared, in the presence of several persons, that he thought, from the boundaries, that there must be a greater number than eight hundred acres.” He purchased, therefore, upon his own judgment, after an inspection of the premises, the extent of the boundaries, and a perfect knowledge of every thing relating *to them, which it was in the power of the vendor to communicate. This, necessarily, bound him; for it is a general rule of law, that when the vendee purchases upon his own judgment, after a view of the subject to be sold, the vendor is not responsible for defects, 2 Esp. Nis. Pri. 629, cites Chandelor v. Lopus, Cro. Jac. 4.
    There was no concealment on the part of Woodlief, who disclosed every thing he knew. 1. Because the 60 acres of land, sold by the sheriff for taxes, were not part of the Sion Hill tract, but of the 130 acres sold to Peter Woodlief. Besides, the sale was utterly void, on account of the irregularity in conducting it: for it was not duly advertised, nor made upon the premises, in the presence of the high sheriff; and there was personal property enough to pay the taxes. Acts October Session 1787, ch. 42. 2. Because it is proved, that the Deep Bottom tract, Stainback’s 70 acres, and the 130 acre tract, were not part of the Sion Hill tract. The two first never; the last for a short time only; and excepted in the deed from Woodlief to Quesnel, being at that time the residence of Peter Woodlief, as Stainback’s deposition proves; and which, therefore, the plaintiff must have seen, when he inspected the land, before his purchase.
    There has been no departure from the contract: which the plaintiff, as before observed, enjoys, precisely, as he made it, 1. Because Ragsdale, Campbell, Fitzgerald and Eppes prove that he purchased the land, for 800 acres, more or less; and the two first, that he declined a survey, when it was offered him, at the time of executing the deeds. Wheeler, too, says, that, on the day that he and Campbell advised him to consult col. Davies, he reasoned upon the probability of an excess, from its being an old survey. 2. Because the deed of mortgage, drawn by col. Davies, is for 800 acres, “more or less,” without any provision or a deduction from the purchase money, in case of a deficiency of the land; and he must have drawn it according to directions; which is corroborated, by the confidence which he says, in his deposition, Quesnel afterwards shewed, as to the quantity. 3. Because the deed, to the plaintiff, executed at Ruffin’s, is*also for “more or less;” without any provision for deduction, from the price, in case there were not 800 acres: And it was accepted by Quesnel, after a discussion whether there should be any such deduction, and after his declining to accept the offer of a survey. 4. Because the whole proceedings shew, that the plaintiff purchased according to the old survey, and the long possession of the Sion Hill family under it. It is no objection, that the original survey is not produced, because it was not called for by the bill, and the title to the land was not controverted; nor could have been controverted after a possession, which the bill states to have been upwards of a hundred years. The argument of the appellant’s counsel, upon the words more or less, has no weight; for whatever may be their effect in common deeds, they were meant, upon the present occasion, to exclude responsibility for quantity.
    The supposed inadequacy of the contract has no influence. Eor it is not true, that Quesnel would not have been compelled to a specific performance, without a deduction from the purchase money: because it was a bargain of hazard, and fair upon both sides. If the land held out more than 800 acres, the purchaser was to gain; if it fell short of that quantity, he was to lose. It was what the civilians call Emptio spei; that is to say, it was a purchase of the contingency as to the excess; which, according to several authorities, is a good ground of contract; for the hazard is mutual; and, if there be a full disclosure of the circumstances, as there was in this case, neither can complain.
    The supposed inequality of the situation of the parties has no weight. For, in point of fact, Quesnel was the more sagacious man of the two. He spoke English intelligibly ; and wrote it better than Woodlief could, as the papers written by him, in the record, shew.
    The alleged defect of title consists in the supposed lien for the personal legacies, but Ruffin’s answer affirms that he knows most of them have been paid; and the bill only states, that the plaintiff is informed, that “one of the legacies” remains unsatisfied. The suit of Cox is neither referred *to in the proceedings, nor is it certified to be still depending; and therefore the probability is that it has been discharged.
    Cur. adv. vult.
    
      
      Sale of Land — “More or Less” — Sale in Gross. — The principal case is cited in Crislip v. Cain, 19 W. Va. 488, as authority for the proposition that, a contract to convey or a deed conveying a specified tract of land for a fixed price, even where that price is a multiple of the number of acres, which the contract or deed states as the number of acres “more or less” in the tract, is a contract in gross to sell the entire tract at the specified price and not a contract to sell by the acre. The principal case is cited in Keytons v. Brawfords, 5 Leigh 49.
      Same — Same—Same—Deficiency—Abatement of Purchase-Money — Hutuai Innocent Mistake. — in Crislip v. Cain, 19 W. Va. 484, the rule stated by Judge Green is, that where there has been a sale of the tract of land in gross, equity can give norelief by an abatement from the purchase-money for a deficiency in quantity, simply because there has been a mutual innocent mistake by both parties as to the quantity of the land in the tract. To justify such relief there must he fraud, concealment or misrepresentation by the vendor. On page 484, of Crislip v. Cain, Judge Green enters into a lengthy discussion of the principal case, and attempts to reconcile its decision with the above rule. He says, on page 502, that in his judgment, it was really based on the principle that a court of equity can make an abatement of tbe purchase-money for a deficiency because of the legal fraud in the vendor in representing the quantity as of his own knowledge, when he really had not such knowledge, and not because of a mutual and innocent mistake of both parties.
      In Crislip v. Cain, 19 W. Va. 509, the court said: “The mere fact, that there was a mutual innocent mistake as to the quantity of the land sold, for which mistake the vendor was no more responsible than the vendee, would, be no ground for a court of equity to make any abatement from the purchase-money for a deficiency in quantity, if the written contract or deed on its face showed, that the sale was in gross of the entire tract for a certain price, and three out of four judges who satin the case of Quesnel v. Woodlief, 6 Call 218, declare, that in the decision in that case they did not intend to announce a contrary doctrine.” See Jolifiev. Hite, 1 Call 301.,
      And this position taken by Judge Green, in Cris-lip y. Cain, that" the principal case was decided as it was because of the fraud of the vendor, is reiterated in Pendleton v. Stewart, 5 Call 9, 10 ; Joliffe v. Hite, 1 Call 314, 315, 324. In the latter case Quesnel v. Woodlief is distinguished ; the grounds for which, clearly show that the court proceeded on the assumption that fraud was the basis of the decision in the principal case.
      Same — Same— Same — Same—Same—Same—Contrary View. — In Blessing v. Beatty, 1 Rob. 298, 299, Judge Baldwin, seems to take the opposite view, for he says that the principle upon which equity gives relief in cases of deficiency or excess in the estimated quantity upon the sale of lands is that of mistake, whether the mutual mistake of the parties, or the mistake of one of them, occasioned by the fraud or culpable negligence of the other. This he says was the expressed and sole ground of decision in Quesnel v. Woodlief.
      
      In Bierne v. Erskine, 5 Leigh 63, Judge Tucks® said that he considered the original contract between the parties, as having been entered into under an innocent mistake of both as to the quantity of land contained in the tract conveyed, but that against this innocent mistake on both sides, either was entitled to relief according to well received principles, and on the authority of Quesnel v. Woodlief, 6 Call 18. The principal case is cited in Watkins v. Elliott, 28 Gratt. 380 ; Joliffe v Hite, 1 Call 317.
      Bnt however this may be, if the principal case can be construed as deciding, that there can be an abatem ent of the pnrehase-money i'ora deficiency on a sale in gross, because of a mutual innocent mistake as to the number of acres in the tract, then it has been repeatedly overruled. Por this proposition, the principal case is cited in Crislip v. Cain, 19 W. Va. 490, 512, 518 ; Tucker v. Cocke, 2 Rand. 67.
      Same — Same—Same—-Parol Evidence —In Caldwell v. Craig, 21 Gratt. 138, Judge Staples says : “Many cases have been before this court involving the doctrine of compensation upon contracts for the sale of real estate. In many of them, parol evidence was received of the true understanding of the parties, whether a sale in gross or by the acre was intended, notwithstanding the existence of written articles evidencing the contract. In Joliffe v. Hite, 1 Call 313 ; in Quesnel v. Woodlief, 6 Call 218 ; in Fleet v. Hawkins, 6 Munf. 188 ; and in Grantland v. Wight, 2 Munf. 179, suck evidence was admitted without obj ection.”
      But in Depue v. Sergent, 21 W. Va. 338, Judge Gbben, in reference to this opinion of Judge Staples said, that those cases, cited by that judge, made no exception to the general rule, that no parol evidence can be received to contradict a written contract whenever the question involved was, whether the contract was for the sale of land in gross or by the acre, as an examination of them will show. But that in these and other cases, parol evidence was received as a matter of course, not to contradict, as Judge Staples seems to think, the written contract for the sale of land, but to prove that the vendee relied on the statement of the vendor as to the quantity of the lands, and was thereby induced to purchase the tract at a certain price, which resulted in his inj nry.
      Same — Construction of Words “More or Less.” — The words “more or less” are not construed to mean “as estimated,” “as supposed,” but are construed to mean about the specified number of acres, and cover only small deficiencies or excesses, attributable to variations of instruments and the like, and not important deviations. In support of this proposition, see the principal case cited in Crislip v. Cain, 19 W. Va. 488, 500; Blessing v. Beatty, 1 Rob. 303.
      Same — Cases Proper for Compensation. — As to the three classes of cases proper for compensation on account of deficiency or excess in the quantity of land sold, see the principal case cited in Blessing v. Beatty, 1 Rob. 301. See the principal case cited in Crislip v. Cain, 19 W. Va. 540.
      See foot-notes to Blessing v. Beatty, 1 Rob. 287 ; Pendleton v. Stewart, 5 Call 1.
    
   LYONS, Judge,

delivered the resolution of the court as follows:

The bill charges, that a fraud was prac-tised upon the plaintiff, in the sale of a tract of land called Sion Hill; which it asserts the defendant Woodlief, fraudulently misrepresented, as containing 800 acres, although he knew that to be more than was actually comprehended in the tract at that time, as several parcels had been previously conveyed to other persons, without that fact being' disclosed to Quesnel, who purchased under a belief that there were actually 800 acres; but that upon a survey, since made, there appears to be much less. The fraud and misrepresentation are denied by the answers; and the evidence does not support the allegations of the bill with respect thereto; but proves clearly, that the parcels conveyed were not parts of the original Sion Hill tract; which was the estate Wood-lief contracted to sell; and which there is every reason to believe, he actually thought contained, at least, 800 acres. 3?or the land had been the family seat for ages, and Woodlief supposing it to be held under an old'survey, which he and his predecessors had always estimated to comprehend 800 acres, advertised it as containing about that quantity; and Quesnel relying upon those circumstances, purchased it, under a belief, that there were that number of acres in the tract. Both parties, therefore, appear to have acted innocently; and there is, consequently, no cause for relief, upon the ground, either of fraud or misrepresentation. But, as both vendor and vendee proceeded under mistake, each believing that the tract, _ certainly, contained 800 acres, and perhaps more; that constitutes a proper ground for relief in equity: which adjusts and equalizes contracts, according to the exigencies of the case. The mistake, therefore, ought to be rectified, and a deduction made from the purchase *money, proportioned to the deficiency of the land. But, as the original survey is not produced, the court is unable to ascertain, what the real quantity contained in the Sion Hill tract was, further than the record shews; and, by that, the survey, made under the direction of the court of chancery, reduces it to 608 acres, 1 rood, and 13 perches: which is too great a loss for a purchaser to sustain, under an agreement for an estimated quantity,, not withstanding the words “more or less,” inserted in the deed; which ought to be restricted to a reasonable, or usual, allowance, for small errors in surveys, and for a variation in instruments. A correspondent deduction, from the purchase money, is consequently to be made. And Quesnel ought moreover to be indemnified against the claim of Cox and wife, and all other existing incumbrances, if any: which is not only agreeable to the general principles of equity, but the deed of Woodlief to the plaintiff, expressly covenants, that he has ,a good title; and that he will make further assurance, and defend it. So that there was no necessity, as the appellees’ counsel contended, to suggest that suit, or any in-cumbrance, specifically in the bill; for a reasonable apprehension, appearing at the trial, was, upon the principles of quia timet, sufficient. In conformity to these ideas, the following decree has been prepared by the judges, and is to be entered as- the judgment of the court: '

239-240

“The court is of opinion, that the appel-lee Woodlief, not having surveyed the tract of land in the bill mentioned called Sion Hill, before he advertised the same for sale, or sold it to 'the appellant, but that supposing there has been an old survey, which he has not produced, or referred to, and does not appear in the proceedings in this cause, under which the land had been long held, as he suggested, by the former proprietors of the said land, and estimated, by them and him, as containing eight hundred acres, he advertised it as containing about that quantity, and the appellant was thereby induced to purchase it, expecting it would contain that full quantity; and the appellee Woodlief having, after-wards, asserted his belief thereof, occasioned the appellant to accept *of a deed for the same as containing eight hundred acres, more or less, and it appearing from the survey made by Robert Turn-bull and returned to the high court of chancery, pursuant to an order of the said court, in this cause made, for ascertaining the exact quantity of land in the said tract called Sion Hill, that the same contains only six hundred and eight acres, one rood and thirteen perches, so that both parties were mistaken in the quantity and number of acres contracted for, the said mistake ought to be rectified in a court of equity, and the appellant allowed a deduction, from the price agreed by him to be given for the said, land, for the deficiency in quantity, that deficiency being too great for a purchaser to lose under an agreement for a reputed quantity, notwithstanding the words, ‘more or less,’ inserted in the said deed, which should be restricted to a reasonable, or usual, allowance, for small errors in surveys and for variations in instruments; the value of the deficiencj', when ascertained under the direction, and to the satisfaction of, the said high court of chancery, to be deducted from his bonds for the purchase money in the hands of the appellees Woodlief and Ruffin, or either of them, -if sufficient to satisfy the same; and, if more than sufficient, the injunction to be dissolved for the residue, but if not sufficient, the appellee' Woodlief to be decreed to refund it, with interest, and also to secure and indemnify the appellant from the suit and claim of John Cox and Hannah his wife, in the proceedings mentioned, and from all charges or incum-brances on the said land made by himself, or by any other person or persons, from or under whom he derives his title to the said land, before the said injunction be dissolved ; and that the said decree is erroneous : Therefore it is decreed and ordered that the same be reversed and annulled; and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here; and it is ordered that the cause be remanded, to the said court of chancery, for a final decree to be entered therein, according to the principles of this decree.”  