
    *Anthony v. Oldacre.
    [May, 1802.]
    Sale of Land — “More or Less” — Deficiency — Fraud — Purchase Money. — Although the vendor sells the tract of land whereon he formerly lived, supposed to contain 800 acres, more or less, as he bought it, yet, if he omits to disclose to the vendee that he had previously surveyed it, and fonnd it to contain less than he bought it for, the purchaser will be entitled to a deduction from the purchase money equal to the deficiency : notwithstanding he paid part after the deficiency was discovered, and gave a new bond for the balance, with only an oral declaration that he would seek compensation for the loss.
    Same — Deficiency — Chancery Practice — Purchase Money. — If a tract of land, with the growing crops, and a few articles of personal property, be all sold together for a given sum; and the land proves deficient in quantity, the court of chancery may deduct a rateable proportion of the purchase money, without directing an issue to ascertain it.
    Appellate Practice — Certiorari.—If the superior court of chancery grants a certiorari to remove a cause, and the county court proceeds to a decree ; upon appeal from that decree, the superior court of chancery may hear the appeal and certiorari together, and make the proper decree upon the whole cause.
    Oldacre filed a bill in chancery stating, that he had purchased a tract of land of Anthony, which the latter represented as containing 350 acres, and promised to add an entry of nine acres to it. That the price of the land was ¡¿350; and the defendanc gave a bond, (which is lost,) to secure the title. That the plaintiff had paid £215 of. the purchase money, and was sued for the balance. That it turns out, upon a survey, that there are 220 acres of land, only: And therefore the bill prays a return of a rateable proportion of the purchase money, and for general relief.
    The answer of Anthony states, that he shewed the boundaries of the land to the-plaintiff previous to the sale. That the bond expressed the bargain : which was that the defendant sold the tract of land whereon he formerly lived, with the crops and other property (of the value of ¿£60. 5.) to the plaintiff for ^352. 5. ; and bound himself to convey the land contained within the-boundaries aforesaid, described at large, and stated, by supposition, to amount to 300 acres more or less, but refused to warrant the quantity, as he had bought, himself, without measurement, and sold in the same manner. That, since the sale, the plaintiff mentioned the ^supposed deficiency, but, upon the defendant’s insisting on the bargain as it was made, he paid part of the purchase money, and gave a new bond for the balance. That the defendant had not deceived the plaintiff; and had tendered him a deed, which he refused to accept.
    There was some discordance in the testimony ; but it appeared by several of the witnesses, 1. That the plaintiff had, prior to the treaty, discovered by a survey which he made, that there was less than he bought it for; and there is no evidence that he imparted those circumstances to the plaintiff. 2. That the defendant, at the time of the treaty, spoke of the tract as containing about 350 acres, and that he would throw in the nine; but would not warrant more than 300 acres. 3. That the growing crops of wheat and rye, together with an apple mill and some cider casks, were to be included in the sale; and that ^350 was to be the purchase money for the whole. 4. That Oldacre, when he made the payment and gave the new bond, declared he would seek compensation for the deficiency.
    The county court ordered a survey; which being made, it appeared that there were only 219 acres of land in the tract. In consequence of which, that court, (reciting the survey, and that the plaintiff had paid ;£315 of the purchase money, which, in the opinion of the court, was £83. 10. more than he ought to have paid,) decreed repayment of the latter sum, with interest and the costs. From which decree Anthony appealed to the superior court of chancery.
    Prior to the decree, the chancellor had awarded a writ of certiorari, to remove the cause into the superior court of chancery; and had also directed a survey, by which it likewise appeared that the tract contained but 219 acres of land.
    The appeal and certiorari were heard together, and the following decree made by the court of chancery, “This court being of opinion that, in the said decree, by which the' appellee recovered against the appellant eighty-three pounds ten shillings, with legal interest thereon from the first day of May, in the year one thousand seven hundred and *ninety-one, and his costs, there is no error, unless it be, that less was recovered by the appellee than was due to him, to the loss whereof he submiteth, and that the injunction to stay execution of the judgment recovered against him by the defendant in the county court of Bedford, ought to be perpetual, doth affirm the decree and perpetuate the injunction accordingly, and order that the appellant do pay unto the appellee the costs expended by him, both in defence of the appeal, and in the prosecution of the other cause.”
    Anthony appealed to the court of appeals.
    Wickham, for the appellant.
    The land was sold by the tract, for more or less, and not by the quantity or acre; and therefore the purchaser is entitled to no deduction. Although a deception is charged, it is not proved: But, were it otherwise, still the relief granted was improper; for the deduction ought not to have been according to the acre, but to the injury actually sus-
    tained : to ascertain which an issue should have been directed.
    Randolph, contra.
    There is indeed no proof of an actual stipulation, in express words, for a sale by the acre; but the complexion of the contract looks very like it. Be that as it may, however, it is plain that the defendant imposed upon the plaintiff, and induced him to believe that there were more than 300 acres. For, concealing all the circumstances, he sent the plaintiff word by one person, and frequently declared to him, in the presence of others, that there was more than that quantity in the tract. The case contains nothing which should vary the mode of relief from that observed in ordinary cases; and, therefore, the deduction ought to be according to the acre, as the decrees have made it.
    Cur. adv. vult.
    
      
      Sale of Laud — “More or Less” — Sale in Gross or by. Acre. — The principal case is cited in Depue v. Sergent, 21 W. Va. 333 ; Crislip v. Cain, 19 W. Va. 512. In the latter case tlie court was of opinion that the principal case was decided in favor of the vendee because of the fraud practised on him by mppressio peri. See. npon this subject, extensive foot-note to-Blessing v. Beatty, 1 Rob. 287.
    
   L/YONS, Judge,

delivered the resolution of the court, that there was no error in the decree; and, therefore, that it was to be affirmed.  