
    Carter v. Campbell.
    October, 1820.
    Chancery Jurisdiction — Suit Dismissed in Another District. — It is no objection to the jurisdiction of one Chancery court, that a suit not conclusive of the rights of the parties, had been dismissed in another district.
    Real Estate — Sale by Acre — What Constitutes. — An agreement to sell land contained within specified boundaries, supposed to be a given number of acres, at a fixed price per acre, is a sale by the acre, and not in gross.
    Same — Same—Right of Survey. — Where a sale is by the acre, the right of survey exists, whether reserved or not; and may be claimed at any time before the business is closed.
    Issue Out of Chancery — Verdict— Conclusiveness.— In a case proper for an issue, the verdict is conclusive, where the evidence is conflicting.
    
      Real Estate —Sale by Acre — Deficiency—Compensation. —If land be sold by the acre, at difieren! prices, and a deficiency occurs, a jury should assess the compensation.
    In December, 1806, Hugh Campbell exhibited his original bill against Philip Slaughter and Charles Carter, in the superior court of Chancery of Richmond, setting forth, that in August, 1802, Campbell bought of Slaughter a tract of 949 acres of land, according to boundaries described in a written contract between them, at nine dollars per acre for S98 acres thereof, and eleven dollars per acre for the other 351 acres; that Campbell had paid all the purchase money, but the contents of two bonds, which Slaughter had assigned to Carter, and on which Carter had obtained judgments in the district court of Charlottes-ville ; and that on a survey of the *land it was found to fall short 82 acres, the value of which was more than the amount of the bonds on which the judgments had been obtained. Slaughter and Carter are made defendants. And the prayer is, that farther proceedings on the judgments at law, may be injoined; and that Campbell may be allowed a credit for the 82 acres deficient.
    In an amended bill, Campbell states, that the land he bought of Slaughter, had been brought by Slaughter of Carter, and was convej'ed by Carter, at Slaughter’s instance, to Campbell; that the bonds Campbell gave Slaughter, were assigned by Slaughter to Carter, in payment of the purchase money which Slaughter had contracted to pay Carter; that Carter was apprised of the consideration of the bonds, and (as Campbell believed) of the terms of the contract between him and Slaughter. Wherefore, it is insisted, that Carter ought to be held liable, immediately, for the deficiency of quantity, &c.
    An injunction was awarded March 20, 1806, for $902, with interest from August 24, 1802, (estimating the deficiency at $11 per acre).
    Slaughter’s answer states, that in March, 1802, he bought a large tract of land of Carter, containing, (with 24 acres he bought of Whitaker Carter,) 2717 acres, according to a survey made by James Higginbotham, the county surveyor; and in order to sell it himself more readily, he had the original tract divided into three parcels, by one Franklin, a surveyor. In August, 1802, he first sold Campbell one of the parcels, containing 598 acres, (as laid off by Franklin,) at $9 per acre, and then an additional quantity adjoining. The contract was reduced to writing on the 24th August, 1802, describing the land sold, by metes and bounds ; and then Franklin laid off the additional quantity sold, which proved to be 351 acres. The whole quantity was 949 acres. Slaughter avers, that he offered to have the land re-surveyed to Campbell; but he expressly agreed to take it for 949 ''acres, more or less, as laid off and computed by Franklin; by whose computation, all the other purchasers of parcels from Slaughter, bought and abided. Slaughter procured Carter to make deeds to Campbell, and the other sub-purchasers. And Campbell gave his bonds for the purchase money', and a mortgage of the land to secure the payment. In 1804, Campbell sold the land he had bought of Slaughter, to one Rivers, at so much by the acre: it was then surveyed by one Christian ; and it is by that survey that the supposed deficiency of 82 acres is ascertained ; which deficiency however, Slaughter does not admit. Slaughter attended Christian’s survey: but (he says) only for the purpose of completing an arrangement by which Rivers was substituted as his debtor in place of Campbell; he did not consider himself at all interested in the survey. And it was after Christian’s survey which shewed the deficiency, that Campbell gave his bonds to Slaughter for the whole purchase money, without claiming any allowance for the deficiency ; which bonds are the same that Slaughter assigned to Carter, and on which the judgments were obtained at law, to, which the injunction had been awarded.
    The answer of Carter states, that iir March 1802, he sold Slaughter a tract of 26501 acres of land; that by their contract, the land was to be surveyed, but afterwards Slaughter agreed to take it at the reputed quantity more or less; that he is ignorant of the terms of the contract between Campbell and Slaughter; that Campbell’s bonds were assigned him by Slaughter in payment of the purchase money which Slaughter owed him; and that he cannot admit the truth of Campbell’s bill.
    The contract of sale between Slaughter and Campbell of 24th August 1802, binds Slaughter to sell a tract of land contained within certain boundaries described, supposed to contain between 800 and 900 acres, at $9 per acre, for 598 acres, and $11 per acre for the remainder, the quantity not mentioned in the contract.
    *On the 8th of September 1809 — upon bill, answers and exhibits, Chancellor Taylor dissolved the injunction.
    On the 1st June 1810, the plaintiff not being an inhabitant of Virginia, the clerk demanded security for costs; which not being given, according to order, within 60 days, the bill was dismissed. And so the proceeding was at an end in the court of Chancery of Richmond.
    But in August 1811, Campbell preferred another bill to the judge of that court, in vacation, wherein he sets forth the terms of his original contract with Slaughter, and adds, that the lands Slaughter sold him, were parcel of a large tract of 2717 acres, which Slaughter had bought of Charles and Whitaker Carter; that Slaughter procured the surveyor Franklin to subdivide the tract, not by actual measurement, but by laying off the parcels on the former pial;. whereby it was found, that the boundaries by which Campbell bought, contained 598 acres at $9 per acre, and 351 acres at $11 per acre; that Campbell gave his bonds for the purchase money, according to that estimate; that Campbell, being about to go to the western country, sold his parcel to Robert Rivers, who insisted on a. re-survey; that the land was re-surveyed by Christian, deputy surveyor of the county, Slaughter having notice and attending the survey; that it was found, that there had been a mistake in the survey of the whole tract sold by Carter to Slaughter, and that the part sold by Slaughter to Campbell, fell short 87 acres, which at $11 per acre amounts to $957; that Campbell having bought by the acre, insisted on a deduction for the deficiency; that Slaughter said Carter was liable to him for the deficiency, he would arrange the matter with Carter, and if Garter would not come to terms, Campbell might exhibit his bill of injunction against Carter as well as himself, and so make the loss fall on the right person ; that thereupon Campbell gave his bonds to Slaughter, for the balance of purchase money, without regard to the deficiency; that Slaughter assigned the *bonds to Carter, who prosecuted them to judgment; that Campbell then filed his original bill, depending on Slaughter to see justice done him, and went to the western country, but Slaughter answered his bill and denied his equity ; that the deed which Slaughter procured Carter and wife to execute to Campbell, was without Campbell’s privity; that in Campbell’s absence his injunction was dissolved; and that suit had been instituted, and judgment obtained, on the injunction bond, and a scire facias had been sued out against the bail. Campbell denies any agreement to take the land, at the quantity estimated by Franklin, as set forth in Slaughter’s answer to his original bill; avers that the facts stated in that answer are not true, and that his conduct was fraudulent; and prays, that his injunction may be re-instated, and the judgment on the injunction bond may also be enjoined.
    Subjoined to the above (which is called a supplemental and amendatory bill) is a petition to the judge of the court of Chancery of Richmond, briefly stating the result of the proceedings on the original bill; referring to the new bill, and to two annexed affidavits in support of its allegations, and praying general relief in the premises.
    Upon this application, Chancellor Taylor said,' that, in term time, the order of dis-mission to the original bill might be set aside, and the injunction reinstated, but not in vacation: and, if'this were considered as an original application for an injunction, the common law court which had rendered the judgments, being within the district of the Superior court of Chancery of Staunton, he could not grant the injunction.
    And in Nov. 1812, Campbell preferred a bill to the judge of the Superior court of Chancery of Staunton, referring to his original bill in 1806, and the proceedings thereupon referring also to his supplemental bill of 1811, and his petition thereto annexed, and Chancellor *Taylor’s order thereupon; stating, that he was absent from the commonwealth, when his original bill was dismissed; and praying Chancellor Brown to grant him relief as prayed in his supplemental bill of 1811.
    December 8, 1812, Chancellor Brown “granted the injunction on the usual terms. ’ ’
    Then Campbell exhibited another amend-atory bill, correcting a mistake in his former allegations, respecting the proceedings on the injunction bond against his sureties and their' bail; and stating that the real proceeding was an attachment in Chancery, and decree thereon, in the County court, against the representatives of the surety in the injunction bond; and praying that the Chancellor would enjoin further proceedings on that decree. The injunction was granted.
    The answer of Slaughter to the supplemental and amendatory bills and petitions of 1811 and 1812, refers to his answer to the original bill of 1806; and states, that after his contract with Carter, he made a new agreement with him, whereby he cook the whole tract at the estimated quantity, more or less, and so he had no claim on Carter for deficiency in quantity. He denies the new allegations in Campbell’s suppemental bills altogether; the most material of which were not set up or pretended in his original bill. He states, that Campbell’s first injunction was obtained in 1806, and dissolved in 1809, and his bill dismissed for want of security for costs in 1810; and complains, that, in consequence of this unusual delay, he had lost the benefit of the testimony of his three most material witnesses.
    The answer of Carter, is in substance the same with his answer to the original bill of 1806. It is acknowledged by Slaughter, that he has no claim on Carter for any deficiency.
    A general replication was filed.
    *There were depositions proving the allegations in Campbell’s original and supplemental bills; the deficiency in the quantity, as shewn by his survey; and that Slaughter took no concern in the survey:
    Proving the facts stated in Slaughter’s answers, and that an actual measurement was made by Franklin.
    Chancellor Brown ordered a survey. The survej', reported by the surveyor of Amherst, makes the land hold out only 846 acres.
    The cause came on for hearing; and the Chancellor ordered an issue to be made up, and tried in the circuit court of Amherst, to ascertain, whether the contract between Campbell and Slaugther of August 24, 1802, for a sale by the acre, had been rescinded by the parties, and a -new contract for a certain sum in gross (each party taking on himself all risk of the quantity sold) entered into?
    Slaughter’s counsel moved the Circuit court to certify, that the verdict was against the weight of evidence; but the court said, that there was a great deal of circumstantial evidence, which it could not state with accuracy, and if it had been a trial at law; it could not have granted a new trial: and therefore refused such certificate. Then they moved the court to certify the evidence given at the trial, to the Chancellor; stating the written evidence, and offering to reduce the parol evidence (of which no note had been taken at the trial) to writing, and present it for correction, to the court and the opposite counsel: but the court thought the parties had no right in such cases, to have the evidence certified to the Chancellor, and that it would be inconvenient in practice and often impracticable; and therefore overruled the motion. Slaughter excepted.
    Slaughter’s counsel upon their exception to the opinions of the Circuit court, moved the Chancellor, to order a new trial: he overruled the motion. Then they moved '*him, to set aside the order directing the issue, because, upon the evidence and exhibits, the issue ought never to have been directed; which was also overruled.
    The Chancellor perpetually injoined Carter’s judgments on the original bonds, and on the first injunction bond, and his decree on the attachment in Chancery against the surety therein; the amount of that decree being $1499 32, with interest on $902, part thereof, from Sept. 8, 1809, and costs; and being principal, interest, damages and costs of the sum injoined by the Chancellor at Richmond, in 1806, when the deficiency was supposed to be 82 acres, rated at $11 per acre. And, as the deficiency now appeared to be 103 acres, (the whole of which he rated at $11 per acre) he decreed, that Slaughter should pay Campbell, on account of the additional deficiency, $212, with interest from January 1, 1803, and costs.
    From which decree, the defendants appealed to this court.
    Leigh, for the appellant.
    All the proceedings before Chancellor Brown are coram non judice. They may be considered either as the continuation of a previous suit, or as original. In the first point of view, though the Chancellor at Richmond might in term time have granted a bill of review, it is clear that the Staunton Chancellor with co-ordinate powers, could neither review nor reverse proceedings in the Richmond Chancery. If this be considered an 'original suit, the Chancellor at Staunton has granted an injunction in direct violation of an order of the Chancellor at Richmond; and if it be allowed, no order of any Chancellor, can be of any force on any other Chancellor.
    The issue tried in the court of law was not the same is'sue of fact which was made in the court of equity: and was therefore an immaterial issue. The defence of Slaughter was not, that a new contract was made, but *that the old contract was executed, according to the survey actually made, and the Chancellor directs the jury to inquire, whether the old contract was rescinded and a new one made for a quantity in gross. Slaughter’s defence therefore was not embraced in the issue.
    The case of Fleet v. Hawkins, () shews the distinction, between a sale for a quantity in gross, and a sale to abide by a survey actually made, before the contract.
    In the case before us, both the verdict and Slaughter’s defence, are actually true; the issue should have been, on the new contract set up by Campbell; the issue directed then, was immaterial.
    The decree 'is wrong in its details, in supposing the whole deficiency to have occurred in the land sold at the highest price, without proof of the fact. It allows for a deficiency of 103 acres, when in fact a deficiency is shewn, of only 83 acres.
    Wickham, contra. On the question of jurisdiction it is admitted, that the proceedings in the Staunton Chancery cannot be considered the continuation of a suit commenced in Richmond. It is a new bill, and the proceedings at Richmond are referred to, merely to lay the whole case before the Chancellor. It is said the Chancellor at Staunton was bound by the proceedings in the Richmond Chancery. But surely this comity cannot bind the Staunton Chancellor to give more weight to these proceedings than the Chancellor of Richmond would have given, and even he, would have granted the injunction if the locality had allowed his jurisdiction, after the court of law in which the suit was brought, was attached to the Staunton district ; or have reviewed his decree, had that been allowable in vacation.
    *As to the merits, the verdict puts an end to the controversy: unless as is said, the issue was immaterial.
    There can be no doubt, that the original contract was for an unknown quantity per acre: but the subsequent agreement to abide by Franklin’s survey, was an alteration of the original contract; and to alter any essential part of an agreement, makes the whole a new contract; whether the contract for a sale by the acre then, had been rescinded, was the proper form in which to express the issue to be tried. There can be no doubt, that the whole merits of the case came fully before the jury, were discussed, and have been decided, and if the form of the issue was objectionable, it should have been changed in the court below. It is too late to object, after a verdict, and decree.
    Hull v. Cunningham, () and Kelson v. Matthews, () have decided, that a party is entitled to relief for a mistake of quantity. In the case of Fleet v. Hawkins, () referred to, the parties had agreed to abide by a particular survey already made, and they would have been bound by it, whether there was a mistake or not; but if a mistake had been made in a subsequent survey, by which the quantity was to be determined, equity would have relieved against it. Here, there is no evidence that the parties agreed to be bound by the survey. Carter’s deed was executed without the knowledge of Slaughter.
    As to the error in the details of the decree, it relates to res inter alios acta, and the parties to this record cannot object to it.
    Stanard, concluded for the appellant.
    He objected first, that a surety had in-joined a judgment against the principal without being a party to it. [Mr. Wick-ham cited West v. Logwood, () as an authority *for this, and added, that no objection appeared on the record for want of parties.]
    Vance v. Walker, () recognised in Aclin v. Walker, () shews, that a contract made, and bonds given in pursuance, cannot be varied as to the manner of execution, unless supported by a memorandum in writing, made at the time. 'The deeds then in this case fixed irrevocably the contract as to quantity. The parol agreement which Campbell sets up would therefore be unavailing, even if it were proved, but none such is proved.
    The Chancellor by the form of the issue has referred a question of law to the decision of the jury. For whether the agreement to abide by Franklin’s survey, rescinded the contract, is a question of law. The distinction between mistakes in surveys already made, and surveys to be made, is without foundation.
    The decree is erroneous in its details, for the Chancellor has allowed Campbell more than he claims.
    
      
       Real Estate — Sale by Acre — What Constitutes. — As holding that an agreement to sell lands contained within specific boundaries, supposed to be a certain number of acres, at a fixed price per acre, is a sale by the acre and not in gross, the principal case is cited in Graham v. Larmer, 87 Va. 228, 12 S. E. Eep. 389. See also, Nelson v. Carrington, 4 Munf. 332; Bierne v. Erskine. 5 Leigh 59, and foot-note.
      
    
    
      
      Same — Same—Right of Survey. — where there is a sale by the acre, a right of surveying exists, whether expressly reserved or not, and if no time is limited for making the election to survey, it may be done-at any time before the whole business is closed between the parties. Crawford v. McDaniel, 1 Rob. 454, citing the principal case and Nelson v. Carrington, 4 Munf. 332.
    
    
      
      issue Out of Chancery — Conclusiveness of Verdict.— To the point, that, in a case proper for an issue, the verdict is conclusive, where the evidence is conflicting, the principal case is cited in Nease v. Capehart, 15 W. Va. 305; Miller v. Wills, 95 Va. 351, 28 S. E. Rep. 337.
      And in Hickman v. B. & O. R. Co., 30 W. Va.‘ 301, 4 S. E. Rep. 057, it is said: “111 Nease v. Capehart, 15 W. Va. 300, this court, following the law as settled in Virginia and elsewhere, decided, that 'the object in directing the issue is to satisfy the conscience of the chancellor, but that conscience must be satisfied with the verdict of the jury upon an issue properly directed, where no errors have been committed during the trial thereof, eitlierby the court or by the jury, to the prejudice of either party.’ Carter *. Campbell, Gilni. 159; Lee v. Boak, 11 Gratt. 182; Kitzhugh v. Fitzhugh, 11 Gratt. 210; Henry v. Davis. 7 W. Va. 715."
      See further, monographic note on “Issue Out of Chancery" appended to Lavell v. Gold. 25 Gratt. 473. [
    
    
      
      (a)6 Munf. 188.
    
    
      
      (b) 1 Munf. 330.
    
    
      
      (c) SRSM. 184.
    
    
      
      (a) 6 Munf. 188.
    
    
      
      (e) 6 Munf. 491.
    
    
      
      (f) 3 H. & M. 288.
    
    
      
      
        (g) 2 Munf. 357.
    
   ROANE], Judge.

The court is of opinion that there is no objection to the jurisdiction of the court in the case before us. The case made by the bill is as to its allegations, it= objects, and the evidence by which it is supported, a new case, with reference to that formerly acted upon, by the court of Chancery for the Richmond district: and the power of the Judge of the Staunton Chancery court is justified by the intermediate annexation of the county of Albe-marle to that district.

On the merits, the court is clearly of opinion that the purchase by the appellee of the appellant Slaughter, was by the acre, and not by the tract. This appears manifestly from the written agreement of thp parties of August 24th, 1802. The case of Nelson v. Carrington() is an authority to shew, that where the original agreement is for a sale by the acre, the contract will retain that ^character, until it clearly appears, that it has been subsequently changed by the parties..

The same case shows us, that where the sale is by the acre, a right of surveying exists, whether such right be expressly reserved or not. I't also proves, that if no time be limited for making the election to survey, it may be done at any time before the whole business is closed, between the parties.

These principles sustain the appellee in npw making his election,' and repel the idea of an abandonment thereof on his part. He may have been induced to give his bonds as by a computed number of acres, on the grounds stated by him; and his acceptance of the deed which was made to him, ought not to bind in this particular; that deed was besides, procured by the appellant Slaughter, and forwarded to him. It was not emphatically and peculiarly his act; and the deed is not shewn to have been accepted by him, prior to his sale to Rivers.

As the Chancellor had power in this case, to direct an issue to try the material fact in controversy between the parties, and there being contrary and conflicting evidence concerning it, the court is of opinion, that it ought to abide by the verdict found' upon that issue. The verdict upon the issue is, therefore, conclusive in this, case, unless that issue were materially variant from, and inapplicable to, the question controverted between the parties. The court cannot see that this was in any degree the case in this instance. It being admitted that by the written agreement the sale was one by the acre, the defence set up by the appellant Slaughter was, that this agreement was afterwards changed into-one of hazard, so far as related to the sum to be paid; or in other words that the ap-pellee subsequently agreed to waive his right of surveying, and take the tract for a specific number of acres. This is all that was pretended on the part of Slaughter. He never for a moment admitted, that the . contract for the sale of the land was-totally rescinded and *done away; and this was also precisely the meaning of the Chancellor, and is the true construction of the order directing the issue. Although that order in its first member, speaks of a rescission of the contract, and also speaks of a new contract, both the one and the other are narrowed down by the subsequent terms thereof, ’ to an enquiry, whether the sale by the acre was converted into a contract of risk, as to the number of acres purchased. We cannot give into the idea of the appellant’s counsel, in this respect, without expunging from this order a material member of it, which was intended to limit and explain the preceding terms, thereof.

As to the deficiency of the land in question we are of opinion, that the extent thereof would regularly be estimated by Norvell’s survey, made under an order of the court in this cause, and to which no objection had been taken. The appellee ought not to be bound by the survey made between him and Rivers. His prayer of general relief protects him therefrom; and Slaughter cannot contend, that the appellee is bound by a survey, the binding force of which to himself he has rejected.

If this case stood therefore, merely upon the written contract between the parties, we should be of opinion, that Norvell’s survey is conclusive, and that the decree, in toto should be affirmed. But it- does not stand merely on that contract. We must bring into the case on this question of deficiency, the admissions of the appellee in his bill. In the bill preferred to the Judge of the Richmond Chancery court, and which is also made a part of the bill before us, we are of opinion, that the appellee has brought Higgenbotham’s survey, with Franklin’s subdivision thereof, into this cause. We have no doubt, that he had that survey before him at the time of the contract, from his own shewing. That survey is in this record, and exhibits one part of the land in controversy by metes and bounds, as containing S98 acres, and ^another, as containing 351 acres; whereof the former was sold at 9, and the latter at Sll per acre. If this be the fact, exact justice between the parties seems to require, that the deficiency in each part should be ascertained by a jury, and that compensation be made therefor, according to the prices respectively agreed to be given for them. The decree has made compensation for all the deficient land at the rate of $11 per acre; whereas it may turn out that the deficiency exists in the other part: a tract bought by the appellant at 89 per acre.

With this variation the decree is approved : but it must be reversed with costs and the cause remanded, in order to be finally proceeded in as to the measure of relief, pursuant to the principles of this decree. 
      
      (Ü) 4 Munf. 332.
     