
    *Seamonds v. M’Ginnis.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    Sale of Land — Case at Bar. — E. M. being' the owner of a tract ol land supposed to contain 390 acres, but which in fact contains 430 acres, and which is contained in a survey of 350 acres granted to K 3f., sells to ,/. II. 150 acres from the south end of the tract, and a line A B, is believed to be the north line of this tract. E. M. then makes a contract with W. At, which says: “That the said E. M. hath this day sold to W. S. a certain parcel of land at the north end of a survey of 350 acres granted to S. M., and the part of said survey hereby sold is all the residue thereof lying on the north side of the part of said survey which the said E. M. sold to J. II. And the land hereby sold is supposed to contain abont one hundred and forty acres, be the same more or less. In consideration of which said 140 acres, the said W. <S. has paid the said E. if. 113 dollars, and executed his note for 187 dollars.' This contract is made under the belief by both the vendor and vendee that the line A B is the north line of the tract sold to J. II. Held :
    1. Same — Contract of Hazard — Compensation.—This is a contract of hazard; and neither party is entitled to compensation for any excess or deficiency.
    2. Same — Same—Same.—The north line of the land of J. II., not extending to the line A B, W. S. is not entitled, under his contract, to the land south of the line A B; nor is he bound to take it, and make compensation therefor.
    Previous to the year 1814, Samuel M’Gin-nis obtained from the Commonwealth a patent for three hundred and fifty acres of land lying on Four Pole creek in the county of Cabell. This land lay in a narrow strip from north to south. In 1814, he sold and conveyed to Cardwell sixty acres of this land on the south end of the tract; leaving, as was supposed, about three hundred acres. In 1819, he conveyed to his son Edmond M’Ginnis the southern moiety of the tract, supposed to be one hundred and fifty acres. It having been the purpose of Samuel M’Ginnis to give the other moiety of this land to his son John W. M’Ginnis, but *he having died without executing a deed to John W., his heirs carried out his intention, and conveyed to him all the .tract.not previously:conveyed to Edmond M’Ginnis. The dividing line between Edmond and John seems to have been fixed by them, as running from corners designated on the plat filed in the cause, and referred to in the opinion of this Court, as A and B. And this line, which runs east and west, seems to divide the tract into nearly equal moieties.
    In 1833, Edmond M’Ginnis sold and conveyed to Holderby one hundred and fiftj acres of his land, commencing at one of the southern corners, and running north to a point which, extending across the tract, would include the quantity. No survey was made of this land at the time of the sale; but it seems to have been supposed it would include all the land south of the line A B. Subsequently, Edmond M’Ginnis purchased of his brother John W. M’Ginnis his part of the land embraced in the patent to rheir father; and which embraced all of that land that had not been previously conveyed by Samuel M’Ginnis to Cardwell, and Edmond M’Ginnis. This purchase lay north of the land which had been convej’ed to Edmond.
    In September 1836, Edmond M’Ginnis and William R. Seamonds entered into a written agreement, whereby the said Edmond covenanted to sell to the said William R. “a certain tract of land lying and being in the county of Cabell, containing one hundred and fifty acres, for the sum of 300 dollars, and payment in addition to that, for the improvements made on said land.” Some dispute arising as to the contract, especially whether M’Ginnis had sold one hundred and fifty or one hundred and forty acres, Edmond M’Ginnis, in May 1837, executed another paper, which was in the form of a title bond. In this bond the contract of sale is stated to be: “that the said Edmond M’Ginnis hath this day sold to William R. Seamonds a certain *parcel of land lying in the county of Cabell, at the north end of a survey of 3S0 acres granted to Samuel M’Ginnis; and the part of said survey hereby sold, is all the residue thereof lying on the north side of the part of said survey which the said Edmond sold to James Holderby, and which is now claimed by Samuel Blankinship. And the part of the land hereby sold is supposed to contain about one hundred and forty acres, be the same more or less; it being all that part of said survey of three hundred and fifty acres lying north of the one hundred and fifty acres claimed by Samuel Blankinship, as aforesaid; in consideration of which said one hundred and forty acres, the said William R. Seamonds has paid the said M’Ginnis 113 dollars, and executed his note for 187 dollars; one hundred thereof payable on the 25th December 1837, and 87 dollars on the 25th December 1838.”
    After the contract between Edmond M’Ginnis and Seamonds was made, Blank-inship, who claimed under Holderby, procured the land to be surveyed, when it was ascertained that the lines of the patent to Samuel M’Ginnis included five hundred lacres, •,instead of ■ three .'hundred' and fifty,as had been supposed. This survey ascertained that after laying off one hundred and fifty acres for Blankinship on the southern part of Edmond M’Ginnis’ tract, the north line of Blankinship’s tract was considerably south of the line A B; and that between these two lines, there was between sixty and seventy acres of land. It also appeared that the part of the original tract lying north of the line A B, contained about two hundred and thirty acres. In this state of things, Seamonds claimed all the land lying north of Blankinship’s one hundred and fifty acres; Blankinship claimed up to the line A B; and Edmund M’Ginnis insisted that he had sold but one hundred and fifty acres on the south of his tract to Holderby, and but one hundred and forty acres on the north end of the tract to *Seamonds; and that the land above these two quantities lying in the middle of the tract, had not been sold by him. He therefore refused to convey to Seamo.nds the land that the latter claimed.
    Hpon the refusal of M’Ginnis to execute the contract, Seamonds filed his bill in the Superior Court of Cabell county for a specific execution of the contract; to which he made Edmond M’Ginnis, and William Top-pin, who had purchased Blankinship’s interest in the land, parties defendants. After setting out the contract, he stated that he had tendered to M’Ginnis the purchase money remaining unpaid, but that M’Ginnis refused to take it.
    M’Ginnis in his answer, insisted that he had sold to the plaintiff but one hundred and forty acres of land; and he denied that the plaintiff had tendered to him all the purchase money due. He admitted the tender ' of 87 dollars, but he stated, and so it appeared on the proofs, that the plaintiff had given him an order on some man in the State of Mississippi, for 30 dollars 90 cents, which had not been paid. Topping answered, claiming the line A B.
    Among the exhibits in the cause was a plat of the whole tract included in Samuel M’Ginnis’ patent, marked B, on which the line A B was laid down, and the part lying south of that line was shaded green, and the part lying north of that line was shaded red. o
    When the cause came on to be heard the Court below held that the defendant Toppin was only entitled to one hundred and fift3 acres ; and that the plaintiff was entitled to all the residue of the tract lying north of Toppin’s land; but that he was bound to make compensation to the defendant M’Ginnis for all over one’hundred and forty acres. And commissioners were appointed to ascertain the quantity of land for which the plaintiff should make compensation, and the value thereof, taking the contract price of the one hundred *and forty acres as their guide in fixing the value. The commissioners made their report; and the cause coming on again to be heard, the Court made a decree, that M’Ginnis should execute a deed to the plaintiff conveying to him the whole of the tract lying north of Toppin’s line, of which there was ascertained to be about three hundred acres; and that the plaintiff should pay to him the sum of 339 dollars 10 cents, with continuing interest on 260 dollars 92 cents, from the 20th of April 1842, till paid. From this decree Seamonds applied to this Court for an appeal, which was allowed.
    B. H. Smith, for the appellant.
    Summers, for the appellee.
    
      
      Sale of Land — Contract of Hazard. — On this subject the principal case is cited in Green v. Taylor, 10 Fed. Cas. 1133. See foot-note to Caldwell v. Craig, 31 Gratt. 133, and Watson v. Hoy, 28 Gratt. 698.
    
   ALEEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that it appears from the deed of Samuel M’Ginnis to his son Edmond, it was intended to convey to said Edmond one equal moiety of so much of the tract of 350 acres patented to said Samuel, as remained after the sale of a portion thereof to Cardwell. That the said Edmond, and the other members of the family supposed that the moiety so intended to bé conveyed to him would include all that part of the survey designated in the diagram filed in the papers, and marked B, -by the lines shaded green. That said Edmond, when he contracted to sell 150 acres to the said Holderby, supposed the tract so agreed to be sold, would embrace all the land within said lines shaded green; and that the line A B, on said diagram, would constitute the northern boundary of the tract: and that this mistake, under which all parties laboured, was owing to the fact that the lines of the grant included 500 acres instead of the 350 acres called for; and as the line A B, divided the residue of the tract after deducting the part sold to Card-well, into nearly equal moieties, the parties naturally supposed that each portion contained about 150 *acres ; thus making up the quantity of 350 acres supposed to be embraced by the patent.

The Court is further of opinion, that it sufficiently appears, when the said Edmond acquired from his brother John his interest in the residue of the tract, the parties supposed that the land so acquired was the land included within the bounds of the original survey north of the line A B, on said diagram. And when the said Edmond after-wards contracted with the appellant to sell him all the residue of the said survey lying on the north side of the part of said survey which the said Edmond sold to James Hold-erby, it clearly appears he agreed to sell, and the appellant to purchase, with reference to the said line A B, and under the belief thát the said line would be the true dividing line between the 150 acres to which Holderby was entitled under his prior contract, and the residue of the land within the surve3 north of said line; and which the parties supposed would be about 140 acres. The Court is therefore of opinion, that the said line A B, was the true southern boundary of the land intended to be sold to and purchased by the appellant; and under his contract, he is not entitled to claim any of the land to the south of said line A B; nor can he be required to receive a conveyance therefor, and to pay for the excess. And although upon an actual survey, it turns out that the ISO acres to which Hold-erby was entitled, does not include all the land embraced within the lines shaded green on said diagram marked B, the mistake of the parties on this point cannot affect the rights and liabilities of the appellant; provided, he gets all the land he was purchasing, and which it was intended to sell to him.

And the Court is further of opinion, that the contract between the appellant and the said Edmond, was a contract of hazard, and not a sale by the acre; or the sale of a tract supposed to contain a specific quantity for a gross sum. That by the terms of the agreement, the *said Edmond sold, and the appellant purchased all the residue of the land embraced within the boundaries of the survey of said Samuel M’Ginnis, lying north of the said line A B, the supposed boundary of the 150 acres previously sold to Holderby; and the contract was for the land contained within said boundaries at a gross price, and without reference to the quantity; and neither party was entitled to compensation for any excess or deficiency, though the quantity within said boundaries should exceed or fall short of 140 acres.

The Court is therefore of opinion, that the Circuit Superior Court erred in holding that the appellant was entitled under his contract, to any portion of the land shaded green in said diagram marked B, south of the said line A B; or that the agreement was for a sale by the acre, or for a specific quantity of land at a certain price, and therefore a proper case for compensation for the excess upon the ground of a mistake as to quantity. Therefore reversed with costs; and this Court proceeding, &c., doth adjudge, order and decree, that the said Edmond M’Ginnis, do execute and deposit with the clerk of said Circuit Superior Court, a conveyance to the appellant, in fee simple, for all that part of the tract of land embraced within the boundaries of said grant to Samuel M’Ginnis for 350 acres, and ljing north of the said line A B, on the said diagram marked B ; with covenants of general warrantee, and the relinquishment of the right of dower of the wife of said Edmond; and with proper certificates of acknowledgment of said deed and relinquishment, for the revocation thereof.

And it is further adjudged, ordered and decreed, that the said Edmond M’Ginnis, recover of the appellant the sum of 117 dollars 90 cents, the residue of the purchase money, being the amount of the note for 87 dollars, and the order for 30 dollars 90 cents, with interest on said sum of 117 dollars 90 cents, from the 25th of *December 1836, until paid, and his costs by him about his defence in this behalf expended. And it is ordered, that upon the payment of said debt, interest and costs to the said Edmond, or a deposit of the amount thereof with said clerk for the said Edmond, he deliver the said deed to the appellant, retaining a copy thereof, to be filed amongst the papers of the cause. And if the appellant shall fail to pay, or deposit the amount aforesaid, within 60 days after entering this decree in said Circuit Court, it is further adjudged, ordered and decreed, that the sheriff of said county, after advertising, do proceed before the courthouse, on some court day, to sell said tract of land embraced by the deed hereinbefore decreed to be executed, on a credit of 6 and 12 months, taking bond with security, and retaining a lien on the land for the security of the purchase money, and report, &c.  