
    Russell &c. v. Keeran &c.
    January, 1837,
    Richmond.
    (Absent Tucker, P.)
    Question Whether the Sale of a Tract of Land Was by the Acre or in Gross.
    
    James Russell executed a title bond to Thomas Keeran in the penalty of ¿1300. conditioned to make Keeran “a good and sufficient deed or title to a certain plantation in Shenandoah county, situate on Thom’s Brook, containing 405acres, be the same more or less;” which title was to be made at the court for Shenandoah county next following the last payment for said plantation. The heirs of Keeran filed a bill in chancery, stating the contract to have been for a certain sum per acre, and not in gross. Their bill alleged that a considerable part of the purchase money had been paid to Russell by *Keeran in his lifetime, and that there had also been payments by the heirs since the death of Keeran, but that no title had been made by Russell for the land. It stated that the plaintiffs had met, on the 31st of August 1811, in Woodstock, the county town of Shenandoah, with Russell and his son John, to whom this debt was transferred, for the purpose of adjusting the claim, at which meeting Philip Williams was employed by the parties to state their accounts, and upon the settlement then had, there appeared to be due to the said James Russell or his assignee ,£316. 17. 4%. ; that id order to settle the business and obtain a title for the land, it was agreed that ¿100. should be then paid, and for the residue bonds given with good security, payable at certain specified times, upon the execution of which bonds a conveyance was to be made for the land; that in pursuance of this agreement the plaintiffs paid down the ,£100. which was received on the other side, and put into the hands of Williams to hold until the next court at Woodstock, when the bonds were to be executed and the deed received; that Williams was directed to write the deed and have it ready at court, which he did; and that at court the bonds, having been duly executed with good security, were tendered to John Russell who acted for himself and his father, and the deed demanded; but that there was a refusal to receive the bonds or make the deed.
    James Russell answered, that he sold to Keeran the tract of land on Thom’s Brook in gross, 405J^ acres more or less, for ,£650. ; that he had always supposed it contained that quantity; that he offered to have the land measured and sold to Keeran by the acre or by the lump, but Keeran preferred taking it by the lump rather than be at the trouble and expense of having it measured ; that Keeran’s agreement was to take the land and pay ,£650. for it, being more or less; that respondent was always willing to make a deed before there *was any dispute about the quantity, but it was not made, because Keeran did not comply with ' the condition of the title bond, according to which the whole money was to be paid before the deed was executed; that he believes Keeran sold 100; acres of the woodland for ,£400. and he has been informed that upon the survey of the land at the time Keeran made this sale, the quantity turned out less than 405% acres; and that since the deficiency of quantity was ascertained, no title has been made, because of the dispute which arose. He admits the meeting in Woodstock and the settlement by Williams, but says that he respondent never did receive the ,£100. ; that the bond with security was not brought to court according to the agreement, and that afterwards he thought it best to wait until it could be legally settled in what manner the deed should be made, whether for more or less, or not.
    An amended bill was filed, stating that the land which Keeran purchased of Russell consisted of two tracts, that is to say, one tract conveyed by Nicholas Dull and wife to Russell, containing 400 acres, and the other tract, containing 5% acres, conveyed to Russell by John Mack and wife; which two tracts together formed what is called in the contract “a certain plantation situate on Thom’s Brook, containing 405% acres;” that the plaintiffs require the whole of this plantation to be conveyed to them, as described in the deeds from Dull and Mack, according to the metes and bounds mentioned in those deeds; and inasmuch as the said deeds contain positive assurances that the two tracts contain the quantities of land therein mentioned, the plaintiffs assert a claim against Dull’s representatives for any deficiency which may exist in the 400 acre tract, and make them defendants.
    James Russell again answered, referring to his former answer as setting forth the real principles of the contract; stating that for the reasons given in that answer, *he considers himself not bound for any deficiency, and that if he be not bound to Keeran, it is unimportant to Keeran whether Dull be bound to respondent or not. He adds, that whether there be a deficiency or not, Keeran made a very advantageous bargain, which defendant would have no objection to rescind.
    An order was made for a survey, and the survey being returned, it appeared that of the land called for by Dull’s deed, a part is now held by Philip Wendell and others under older titles, and that the tract of which James Russell was possessed on 'Thom’s Brook contains 289% acres.
    A deposition was taken of Emanuel Wendell who married a daughter of Dull. He deposed that after Keeran had sold 100 acres of the land, and two days after the 100 acres had been surveyed, he came to the deponent’s house, and told deponent that he was sure the land which he had purchased would not hold out. Deponent said, he supposed then he would come upon Russell; to which Keeran replied, no, he could not do that; Russell had offered him very fair, that they should get the land surveyed, and if there was any more, he must have so much more, and if there was any less, he was to take so much less. There was a man there, he said, by the name of John Tipton, who took him Keeran to one side, and advised him to take it by the tract, assigning as a reason that the old surveys would all overrun, and mentioning that he Tipton had bought one of these old surveys, and that it had overrun 40 acres. Keeran said that then he agreed to take it by the tract, and not by survey.
    The deposition of Philip Williams was taken in relation to the ¿100. deposited in his hands. Being asked whether Russell was to have the money until the deed was executed, or whether, according to the agreement, he would have given up the money before the deed was made he answered, that from his understanding of the ^agreement, John Russell was to have the money at the next court, if James Russell made the deed then; but •he could not say what was the understanding of the parties in relation to the delivery of the money, if the deed was not executed at the time agreed on, to wit, the next court. He should not, he said, have given up the ¿100. to John or James Russell until the deed was madei without the consent of Dunnivan who acted for Keeran’s heirs, as there was no expression of the parties to authorize the delivery of it to Russell if the deed was not made.
    On the 13th of December 1828 the cause came on to be heard before the superiour court of chancery at Winchester, when that court declared its opinion to be, that although the sale by Russell to Keeran was in gross, it was not a sale of hazard as to quantity, and Russell was liable for any deiiciency beyond what might be accounted for by variation of instruments or calculations of survey, and that an abatement in the purchase money should be made at an average value per acre of the whole tract, according to the sum agreed to be given for the supposed quantity sold. That court was also of opinion that the ¿100. should be applied as a payment at the time it was deposited with Williams, and that Keeran should be charged with interest on any balance of purchase money due.
    The accounts between the parties were referred to a commissioner to be stated according to these principles; and on the coming in of the commissioner’s report, a final decree was pronounced in conformity with the principles so settled. From this decree an appeal was taken.
    Johnson, for appellants.
    Leigh, for appellees.
    
      
      He bad been of counsel for one of the parties. After bis appointment as judge of the superiour court of chancery, he entered, pro forma, the Anal decree in the cause, conforming to the principles settled by judge Browne, who sat for him when the cause was heard.
    
    
      
      Contracts of Hazard — Sales in Gross. — A sale in gross, when applied to the thing sold, means a sale by the tract, without regard to quantity, and in that sense is ex m termini a contract of hazard.
      The principal case is cited for this proposition in Yost v. Mallicote, 77 Va. 616; Yost v. Geisler, 1 Va. Dec. 549; Blessing v. Beatty, 1 Rob. 301; Shoemaker v. Cake, 83 Va. 5, 1 S. E. Rep. 387; Barrier v. Reynolds, 88 Va. 146, 13 S. E. Rep. 393.
      Same — Same — Deficiency — Compensation. — And where the contract is for a tract or parcel of land in gross, without reference to its quantity; whatever the deficiency, no allowance is made to either party, even where the deficiency is great. See the principal case cited, in support of this proposition, in Allen v. Shriver, 81 Va. 183; Cunningham v. Millner, 82 Va. 531; Caldwell v. Craig, 21 Gratt. 137; Camp v. Norfleet, 83 Va. 381, 5 S. E. Rep. 374.
      In Caldwell v. Craig, 21 Gratt. 132, there was a deficiency of two hundred acres in a conveyance of one thousand acres, more or less.
      In Tucker v. Cocke, 2 Rand. 51, the lands fell short more than two thousand acres of the quantity they were supposed to contain.
      Pendleton v. Stewart. 5 Call 1. and Hull v. Cunningham, 1 Munf. 330, are also cases in which a gross deficiency appeared.
      In all these cases, however, compensation for the deficiency in the quantity of land was refused.
      In Russell v. Keeran, 8 Leigh 9, the deficiency amounted to one hundred acres in a tract supposed to contain four hundred and five acres.
      It is true that this is a very considerable deficiency, but, as we have seen, it is not greater than other cases of a like character have exhibited, in which compensation has been refused.
      
        Same — Same—Same—Same—Rule Stated. — The principle upon which all these cases were decided is, that where the real contract is to sell a tract of land for so many acres as it ma.v contain, more'or less, fully understood to be so, the purchaser takes the tract at the risk of gain or loss by deficiency or excess in the manner of acres contemplated. See Allen v. Shriver, 81 Va. 183; Caldwell v. Craig, 21 Gratt. 137.
      upon this subj ect, the principal case is further cited and approved in Trinkle v. Jackson, 86 Va. 841, 243, 9 S. E. Rep. 986; Graham v. Larmer, 87 Va. 229, 12 S. E. Rep. 389.
      In Caldwell v. Craig, 21 Gratt. 140, the court said: “ In the present case the contract is for the sale of a tract of land ‘ supposed to contain one thousand acres, more or less. ’ Such language cannot, upon any fair and reasonable construction, be understood as a positive affirmation of quantity. That it is to be regarded as a mere matter of description, and not of itself giving the character of the contract is settled by the case of Russell v. Keeran."
      
      Same — Same—Regarded with Disfavor. — Courts of equity, however, look with disfavor on a contract of hazard. The presumption is against them; and while such presumption may be repelled, it can only be done by clear and cogent proof, Watson v. Hoy, 28 Gratt. 704, citing Jollife v. Hite, 1 Call 301, 308; Hundley v. Lyons, 5 Munf. 342; Nelson v. Carrington, 4 Munf. 332, 340; Keyton v. Brawfords, 5 Leigh 39; Russell v. Keeran, 8 Leigh 9; Blessing v. Beatty, 1 Rob. 287, 303; Caldwell v. Craig, 21 Gratt. 136; Triplett v. Allen, 26 Gratt. 721.
      Same — Same—Parol Evidence. — That parol evidence is admissible to prove whether a sale in gross or by the acre was intended, notwithstanding the existence of written articles evidencing the contract, see the principal case cited and approved in Caldwell v. Craig, 21 Gratt, 138. The principal case is cited and approved in Farrier v. Reynolds, 88 Va. 146, 13 S. E. Rep. 393. See foot-note to Quesnel v. Woodlief, 6 Call 218.
      But see Depve v. Sergent, 21 W. Va. 334 et seq., and Crislip v. Cain, 19 W. Va. 549, 531, in which the Virginia decisions on this point are reviewed and criticised-
      Various foot-notes have been written in this series upon the general subject of sales of land in gross and by the acre. The following are among the number. Root-note to Blessing v. Beatty, 1 Rob. 287; foot-note to Quesnel v. Woodlief, 6 Call 218; footnote to Jollife v. Hite, 1 Call 301; foot-note to Watson v. Hoy, 28 Gratt. 698; foot-note to Caldwell v. Craig, 21 Gratt. 132.
    
   *BROCKENBROUGH, J.

This is another case in which the question is whether .the sale of land is a sale in gross or by the acre.

There is no doubt that where an estate is expressly sold at a certain price by the acre, and there is a deficiency in the number of acres conveyed, the purchaser will be entitled to a compensation for that deficiency. Sugden p. 230, quoting 2 Eq. Ca. Abr. 688, pi. 1.

So too where the land is neither bought nor sold expressly and professedly by the acre, but both parties, in fixing the price for the land, have regard to the quantity which they suppose the estate to consist of, the same rule as to liability for deficiency will prevail. In such case the demand of the vendor and the offer of the purchaser are supposed to be influenced in an equal degree by the quantity which both believe to be the subject of their bargain: a ratable abatement of price will probably leave both in nearly the same relative situation in which they would have - stood if the true quantity had been originally known. Hill v. Buckley, 17 Ves. 401; Sugden 231. Such sale must be considered as in fact and according to the intention of the parties, though not expressly, a sale by the acre.

But if, on the other hand, the sale be clearly one in gross, it is a contract of hazard, in which each party takes on himself the risk of excess or deficiency, and there can be no relief afforded to either, whatever may be the actual quantity in the tract sold. Keytons v. Brawfords, 5 Leigh 47. But the court will always require clear proof that the vendee did agree to take the hazard of deficiencies on himself. Jolliffe v. Hite, 1 Call 329; Nelson v. Matthews, 2 Hen. & Munf. 164; Hull v. Cunningham’s ex’or, 1 Munf. 330.

Where the words more or less are annexed to a contract for the sale of land by a specific number of acres, the parties are entitled to a compensation for deficiency .or excess in that quantity, beyond what may be reasonably ^imputed to small errors from variations of instruments or otherwise: but where the real contract is to sell a tract of land as it may contain more or less, fully understood to be so, the purchaser takes the tract at the risk of loss by deficiency in the number of acres contemplated, and no compensation can be had. Jolliffe v. Hite, 1 Call 329; Sugden 231.

Where the contract does not specify the number of acres sold or contracted to be sold, otherwise than by the general words “containing so many acres,” this can hardly be looked on as a warranty of the quantity, but rather as a matter of description. Keytons v. Brawfords, 5 Leigh 48.

The written evidence of the contract which the heirs of the vendee seek to enforce in this case, is to be found in the title bond. By that instrument Russell the vendor binds himself and his heirs to Keeran the vendee, in the penalty of ¿1300. conditioned to make a good and sufficient deed or title “to a certain plantation situate on Thom’s Brook, containing 40534 acres be the same more or less,” at the court next succeeding the last payment made for said plantation.

The plaintiffs in their bill charge that this was a sale by the acre, and not in gross. The defendant in responding to this charge says that it was not a sale by the acre, but in gross, and that the vendee agreed to také the land at £650. for 40534 acres more or less, .rather than to be at the trouble and expense of having it measured: that he offered to have it surveyed, and to sell it to him by the acre or by the lump, and Keeran preferred taking it by the lump, as he was to be at the expense of having it -measured. He also says that Keeran ■sold 100 acres of the tract for ¿400. and he admits that on laying off that 100 acres, it was ascertained that the tract fell short considerably. From a survey made in the cause it appears that the tract only contained 289% acres.

^Taking the case on the original bill and answers and the title bond, I think the sale should be considered as one in gross, in which the vendee took the land on the hazard of quantitj’. The defendant avers that the price to be paid to him for the whole tract was the gross sum of ,£650. and though the title -bond does not say so, yet the statement receives countenance from the- fact that the penalty of the bond is just ■ the double of that sum. The language of the condition is that of a sale of the tract: and the answer avers it - to be a sale in gross, and until it is disproved, it is entitled to full weight.

The plaintiffs filed an amended bill, in which -they aver that the plantation on Thom’s Brook is the same which was conveyed to Russell in 1782 by two deeds, one from Dull and wife for 400 acres, and the other from Mack - and wife for 534 acres, and that these two tracts united formed what is called in the title, bond a certain plantation on Thom’s Brook; that these two deeds contain positive assurances that the tracts contain the quantities specified therein ; 'that the contract between Keeran and Russell was for the quantity of 40534 acres, and was a purchase by the acre; and it is the whole of that plantation which the plaintiffs require to be conveyed to them, as described in those two deeds, according to the metes and bounds -thereof. They pray, -that Dull’s representatives may be made parties; and general relief.

The defendant James Russell, in answering this bill, refers to his former answer as containing the real principles of the contract. He avers that Keeran made a good bargain, whether there was a deficiency or not, and that defendant is willing to rescind it. He denies his liability for any deficiency,'and if not liable, deems it unimportant whether Dull is liable to himself.

The survey which was taken in this cause by order of the chancellor shews that the lines of Dull’s deed to Russell differ essentially from those by which the plantation*on Thom’s Brook is now held: the metes and bounds of Dull’s deed embrace more land, and that is the cause of the deficiency-. 1 The .surveyor certifies that the land so thrown out of the new survey belongs to Wendell and others, and is held by an older deed.

If the plaintiffs had averred and proved that the-contract between Keeran and Russell was for the tract on Thom’s Brook according to the metes and bounds of Dull’s deed, then I should have thought that the vendor was bound to convejT the whole of •the 40534 acres according to those metes and bounds, or that if he could not so convey (because 116 acres of the tract were held by others claiming under a paramount title) he would then be liable to an abatement of the price for the deficiency. The case would then be like that of Hull v. Cunningham, 1 Munf. 330, and Hill v. Buckley, 17 Ves. 401. It would have been a case in which, though the sale was not professedly by the acre, yet substantially and according to the intention of the parties it would be such a sale.

But such a case is not made out by the pleadings or proofs. It is not even alleged that Russell held possession according to the metes and bounds of Dull’s deed. For aught we can tell, these 116 acres were never in possession of Russell, though attempted to be conveyed to him by Dull; and if so, the purchase of them by Keeran would be the purchase of a pretensed title as to that part of the land, which can never be enforced by a court of equity, and cannot be presumed to have been the actual contract between the parties.

The plaintiffs then have failed to shew that the sale was one by the acre: and the defendant has proved by Wendell that it was actually a sale in gross, and that Keeran took the hazard of quantity on himself. This testimony is admissible, if there is an ambiguity in the terms of the title bond. Nor do I think that the objection to the competency of ‘Wendell is a good one. He *is the husband of one of the heiresses of Dull, who conveyed the land to Russell with general warranty. It is said that if Keeran recover from Russell, this latter may then recover from the heirs of Dull, and that those heirs are interested in preventing a recovery from Russell. I do not think that this contingent interest would render those heirs incompetent. The decree in favour of Keeran against Russell could not be given in evidence in a suit by the latter against Dull’s heirs, except for the purpose of proving the fact of the recovery. The liability of Dull’s heirs would depend, not on the decree obtained by Keeran, but on the covenant contained in the deed from Dull to Russell, which is altogether a distinct matter.

On the whole, I am of opinion that the decree should be reversed with costs, and that the cause be remanded to the circuit court for further proceedings to be had therein; with directions to that court to order an account (if necessary) of the balance remaining due of the .£650. originally contracted to be paid by Keeran to Russell, in taking which account Keeran’s representatives should not have credit for the £100. deposited with Williams, from the time of the deposit, but onlyfrom the time when it was actually paid to-Russell: that a decree be rendered against Keeran’s representatives for that balance: and that on the payment of that balance by the representatives of Keeran to those of Russell, or to his assignee, the heirs of James Russell be decreed to convey to the appellees, with special warranty, the 289 acres and three roods of land on Thom’s Brook, according to the survey heretofore made in this cause.

CABRl/Iv, J.

I am of opinion that the decree of the chancellor, of the 13th December 1828, is wholly erroneous. It declares that although the sale of the land was a sale in gross, yet it was not a sale of hazard as to quantity. This is contrary to first principles; for *every sale of land in gross or by the tract is, ex vi termini, a sale of hazard as to quantity; the vendor being debarred from claiming any addition to the purchase money, in case the real quantity of the land shall be found to exceed the estimated quantity, and the vendee being debarred from claiming any diminution of the purchase money, in case the’ real quantity shall fall short of the estimated quantity. I am also clearly of ■ opinion that the sale in this case was a sale in gross, and consequently that although the land has turned out, on actual survey, to be about one hundred acres short of the estimated quantity, yet the vendee is entitled to no abatement of the purchase money, but is .bound to pay the whole thereof, with interest, except such part or parts thereof as may have been already paid.

I am also of opinion that the chancellor erred in directing the ¿£100. deposited with Williams, to be applied as a payment in part of the land at the time when it was deposited. It ought not to be applied as a payment at all, unless it has been actually received by Russell, and even in that case it should not be applied as a payment, until the time when it was received.

The final decree, having proceeded on the erroneous principles established by the interlocutory decree, is erroneous also. Both of these decrees, therefore, ought to be reversed with costs, and the cause remanded, to be proceeded in according to the principles now declared.

Decree reversed with costs, and cause remanded for further proceedings.  