
    Hendricks’ Heirs and Adm’r. vs. Mosely.
    Where land is sold and a deed executed, equity will not decree compensation for a surplus quantity contained in the tracts unless fraud, or a sale by the acre, is clearly proved.
    Hendricks, in his life time, sold and conveyed by deed to Mosely a tract of land, stated in the deed to contain eight hundred and four acres. On actual survey, the tract was found to contain eight hundred and sixty-six acres. The deed did not state the tract to contain eight hundred acres more or less. The bill seeks a re-conveyance of the excess, or compensation for it. It charges that the land was sold by the acre, and that there was an agreement between the parties to pay for the surplus. These facts are denied by the answer, and there was no proof of the agreement. The answer stated the consideration to be five thousand six hundred and twenty-eight dollars for the whole tract.
    
      G. S. Yerger, for the complainants.
    There is no proof in this case of the express agreement to pay for the surplus land as charged in the bill; but still if the proof does not support every allegation in the bill, relief will be decreed, if those stated and proved are sufficient to entitle the complainant to relief. Thompson’s heirs vs. Thompson’s devisees. 
    
    In this case the words “more” or “less” are omitted in the deed; this and the statement in the answer, that five thousand six hundred and twenty-eight dollars, was the amount of the purchase money, (which, suppose the tract to contain eight hundred and four acres, would be precisely seven dollars per acre,) proves conclusively, that this was a sale of the tract at seven dollars per acre.
    
      Where land is sold by the acre, and the tract conveyed upon survey contains more, equity considers it a mistake, and decrees a re-conveyance of the surplus, unless the purchaser elects to pay for it, arid allow compensation. Sugden on Vendors, 234. Tyler vs. Beversham, Finch’s Rep. 80. 2. H. and Mun. Rep. 173, in note. Bond vs. Jackson, 3 Hay. Rep. 189.
    Washington, for the defendant.
    1. The case made out by the bill is not supported by proof,, even if it were such a case as the court could found a decree'upon. Where an allegation in the bill is positively denied in the answer, the former must be corroborated by two witnesses, or one witness and circumstances to countervail the latter.
    2. There is no equity in the bill; neither fraud nor mistake is alleged. It does not seek to rescind the deed, butt to set up a parol agreement in contradiction to the deed, which shall have the effect of so modifying it, as to strike out from it upwards of sixty acres, of land. Parol evidence cannot be received for such a purpose. 1 John. Ch. Rep. 339, 425, 594.
    3. So far as the bill seeks to recover the price of the excess of land included in > the deed, the cause of action would be strictly legal, if the evidence in support of it could be received; but it is" inadmissible at law, and it is not competent for the plaintiff, by a change of the forum, to introduce it.
    4.. So far as the bill goes for a money demand, the statute of limitations is a bar, four years and a half having elapsed between the execution of the deed and the filing of the bill.
   Peck, J.

delivered the opinion of the court.

This is a bill filed by the administrator and heirs of Hendricks, for the value of a surplus of land conveyed by the deceased to Mosely.

The complainant has failed m establishing the mam allegations m his bill, to wit: the express promise to pay for the surplus, and that this was a selling by the .acre. Having failed in these particulars, it leaves us the question to determine, whether equity will interpose, and give damages for an excess, there having been a deed executed, and no fraud or mistake proved.

The surplus does not amount to eight per cent, there. being found in the tract called to contain 804 acres, about 60 acres surplus; this is not unreasonable. In granting lands, ten per cent was originally allowable in making surveys by the state; and more surveys were made containing a greater surplus, than were found to contain less. Take this case according to the facts, and it was a sale of a tract of land for a given sum of money. The deed, which must be taken (in the absence of proof of fraud, mistake or surprise,) to contain the contract, is all that we can look to. After this solemn act of making the deed, the parties cannot be let in on slight grounds, to open the contract.

We will not. say that in no case of surplus, would the court deny relief. A case might arise where the quantity would be so great as to be proof of mistake; but that is not the case before us. The decree must be reversed and the bill dismissed.

Decree reversed.  