
    NEWTON J. NEAL v. JAMES P. ALLISON ET AL.
    (S. C., Thomp. Cas., 210-212.)
    Nashville,
    December Term, 1859.
    1. LAND SALES. Abatement for deficiency, when sold by the acre.
    Where there is a sale of land by the acre, and not by the tract or in gross, and it turns out that there is a deficiency in the number of acres, an abatement of the purchase price will be decreed in equity to the extent of the value of the deficiency, though there was no fraud, but mutual mistake simply. [In sales by the tract or in gross, there is no abatement or liability for deficiency or excess in the number o£ acres mentioned, if no fraud. See notes 66-79 under sec. 3142 of the Code; Barnes v. Gregory, 1 Head, 230; Horn v. Denton, 2 Sneed, 132; Henson v. Bridgeman (syl. 3), ante, p. 45-1
    Cited and distinguished: Miller v. Bentley, 5 Sneed, 671; Allison v. Allison, 1 Yer., 16; Meek v. Bearden, 5 Yer., 466; Horn v. Denton, 2 Sneed, 132 [see also Barnes v. Gregory, 1 Head, 230]; Sugden on Vendors, 294, 295; 2 Eq. Ca. Abr., 688.
    2. SAME. Contract, and not deed, governs as to whether sale is by the acre or in gross.
    Where there is a valid contract of sale by the acre, and a deed, in execution thereof, is afterwards made in the form of a sale and conveyance in gross or by the tract, the terms of the contract prevail over those of the deed, and the sale is by the acre, and not in gross.
    Cited with app7-oval: Miller v. Bentley, 5 Yer., 672, 674; Horn v. Denton, 2 Sneed, 132.
   Cakuthers, J.,

delivered tbe opinion of tbe court:

Tbis is a bill for tbe abatement of tbe price given for a tract of land, sold at public auction, on account of a deficiency in quantity.

Tbe defendant, James P. Allison, as executor of bis father, proceeded to sell bis lands in Bedford county, under tbe directions of tbe will. After due notice by public advertisement, tbe land was sold November 25, 1852, and tbe complainant became tbe purchaser, executed bis two notes at three and four years, and received a deed. It is .very clearly proved that tbe sale was by tbe acre, and it was struck off to complainant as tbe highest and best bidder, at $13.80 per acre. A plat made upon a recent survey of tbe land was exhibited to tbe crowd and submitted to tbe inspection of the bidders, and all parties believed the estimated quantity to be correct.

The defendants insist that the purchaser was to take the land at the quantity represented in the plat, and such is the proof of one witness, perhaps the auctioneer.

But the proof preponderates against that condition.any further than it might be implied from the exhibition of the plat, and the sale of the whole to the same purchaser.

Our conclusion as to the fact is, that the sale was not of the whole, but by the acre. The amount for the consideration for which the notes were given was ascertained by calculating the number of acres represented by the plat, 1,035, at $13.80 per acre, making $14,285. The deed executed described the whole tract sold by metes and bounds, according to the survey, and it is distinctly proved that there is a deficiency of sixty-eight acres and some poles. The chancellor decreed an abatement of the consideration, which is not yet paid, of $1,115.69, and the defendants appealed.

Is this decree sustained by the authorities? In our latest case, Miller v. Bentley, 5 Sneed, 671, we held that where a sale of land is in gross, and not by the acre, and the boundaries are correctly given, without some stipulation as to quantity, or the existence of fraud, there can be no relief for a deficiency, unless it is so great as to create a presumption of fraud. This was in conformity to the cases of Allison v. Allison, 1 Yerg., 16, and Meek v. Bearden, 5 Yerg., 466. But in that case we allowed an abatement because the sale was by the acre, although the deed afterwards made was in the form of a sale and conveyance in gross. The case of Horn v. Denton, 2 Sneed, 132, recognizes the same doctrine, although the case turned upon a different ground, and the question was upon an excess, for which an additional compensation was demanded and allowed.

That was a partition among heirs, some of them being under disability.

There was a distinction made in the books as to the right to an abatement for a deficiency, where the words “more or less,” or “by estimation,” are used between actual conveyances and agreement to convey. It is allowed in the latter case where it would not be in the former. Sugden on Vendors, 295.

But that is not the case in judgment now. This is a case of sale by the acre. The deed is not in the record and we cannot tell what are its terms, nor is it material, as according to the case of Miller v. Bentley, before cited, this question must be determined by the contract of sale, and not the form of the deed.

In addition to our own cases already referred to, it is laid down by Sugden, 294, sustained by a case in 2 Eq. Ca. Abr., 688, that “If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number by an old survey.”

In this case the tract was estimated by an inaccurate re*cent survey, to contain 1,035 acres, but it turns out that there is a deficiency of sixty-eight acres.

We think there can be no doubt that the complainant is entitled to an abatement of the price- to the extent of the value of this deficiency. There is no fraud, but mutual mistake, and the sale was by the acre, and not by the tract. The complainant’s notes were taken for more acres than he gets, and in equity and conscience, he is entitled to relief.

The decree will be afiiimed.

Decree affirmed.  