
    Benjamin Barnes v. Andrew Gregory.
    1. Chancery. Deeds. Reformed for fraud or mistake. It is a general principle, alike applicable at law and in equity, that a deed must he held to contain the true and full contract of the parties, and parol proof cannot he heard to change or reform it: hut this general rule does not apply to cases of fraud or mistake in the execution of the deed. A Court of Chancery has power to reform and correct errors in deeds, produced by fraud or mistake.
    2. Same. Same. Sale in gross and by the acre. A sale of land in gross, in the absence of fraud, is binding upon the parties as to quantity; but if the sale is by the acre, and it turns out that there is a mistake as to the number of acres settled for, either party may have the mistake corrected, and an abatement or increase of the price, for the deficiency or overplus in the quantity sold.
    FROM DAVIDSON.
    Decree for the complainant, before Emerson, Chancellor, at the November Term, 1858. The defendant appealed. The facts are stated by the Court.
    Ewing and Cooper, for the complainant,
    said:
    1. This case would present no difficulty even on the bill and answer alone. The answer admits enough to convict the defendant of improper haste, if not actual fraud, in procuring the deed, and states circumstances utterly inconsistent with the defendant’s assertion that the sale was in gross. There is no reason why the trade could not have been closed when the $100 was paid, and the $400 note given, if the survey was not necessary for the purpose of fixing the amount of the purchase money, for which the last note was to be given. The defendant’s going away with the surveyor, his admission that he knew there were more than thirty acres in the tract, his coming with the deed already prepared, and hot haste in getting it executed, stamps the transaction, when taken in connection with the feeble, helpless condition of the person he was trading with, as one which the defendant should never have allowed to be spread upon the records of the country against him.
    
      2. But then the proof is all one way. Every witness who speaks of the trade at all, proves that the complainant said and thought he was giving $35 an acre, and that the defendant admitted that he was to give that price per acre. It would be monstrous to allow the defendant, under these circumstances, to take advantage of the deed written by himself, and procured in the manner detailed by all the witnesses, and admitted by himself. The land really contains fifteen acres more than what the defendant has paid for, being an excess equal to one-half of the tract as claimed by the defendant. There is not a particle of proof in the record to sustain the defendant in his assertion that the trade was in gross.
    3. The defendant, however, relies upon the written deed, and insists that the instrument cannot be altered by parol proof, nor the relief granted without such alteration. It might be sufficient to say to this, in the language of the Chancellor in delivering his opinion, that the deed is not necessarily altered at all. It describes the land, after giving the boundaries correctly, as containing thirty acres, more or less; and all that it is necessary for the “Court to do is, to make the defendant pay for what he got. But, in addition, it would be an insult to the legal knowledge of the Court to say more than that “ it is well settled that parol evidence is admissible on the part of either complainant or defendant to reform a deed or contract on the ground of fraud or mistake, and to carry it into execution as reformed.” 2 White and Tudor’s Lead. Cases, part 1, p. 570, and cases cited; 11 Hum., 415 ; 8 Hum., 230; 1 Hum. 431.
    
      BRADFORD and McDokald, for the defendant.
    The deed to the land is the best evidence of the cantract of sale, and is supposed to contain all that was agreed upon by the parties. 1 Story's Eq.. §§ 153-160. It is the most solemn instrument known to the law, and every intendment of the law is in favor of its containing the whole of the agreement of the parties. And a Court of Equity cannot and will not hear pairol proof of anything in regard to the contract or agreement not contained in the deed, except upon full and satisfactory proof of fraud, accident, or mistake. 1 Story, secs. 151 to 164.
    The complainant was put upon the inquiry by the survey, and had the means at hand, by the presence of the man who made the survey, to ascertain the precise quantity. He did not avail himself of the opportunity, and the Court will not now do for him that which, through his gross negligence and inattention to his own interest, he did not do for himself. Trigg v. Read, 5-Hum., 529; Story’s Eq., §§ from 146 to 151, and notes to 146.
    The Court will see that this is an application by a vendor against his vendee for relief, for an excess in the quantity of land conveyed. All1 the cases we have been able to find reported are of vendees against vendors. And we apprehend that the rules of granting relief in these cases would be interpreted more strongly against a vendor than a vendee. Indeed, we do not see how the Court could grant relief in such a ease to a vendor unless he had reposed a trust in the vendee; and that is not this case. Here there was no obligation or trust on the part of the vendee any more than there was on the part of a stranger to the transaction. 1 Story, <§§.204 to 208; also, 147, 148, and 149.
   OartjtherS, J.,

delivered the opinion of the Court.

The complainant sold to the defendant a small tract of land on Stone’s river, in Davidson county. The deed gives a description of the land, and states that it contains “ thirty acres more or less,” and the consideration |1,050.

This bill is filed to correct a mistake as to the quantity of land, to the extent of fifteen acres, and claiming ¡|35 per acre for the same. It is charged that the sale was by the acre, and the quantity to be ascertained by a survey; that before the execution of the deed the survey was made by one Hamilton, and the quantity ascertained and concealed from him, and his deed obtained, and notes executed for the thirty acres, instead of the true quantity of forty-five acres.

The defendant denies that the sale was by the acre, but insists that it was in gross; that he was to give $1,050 for the tract; that he was, by the contract, to have it as containing thirty acres, whether it were more or less than that quantity. He relies upon his deed as written evidence of the contract which cannot be «hanged by parol.

The proof leaves no doubt upon the mind as to the contract having been a sale by the acre, and not in gross. It is clearly established that it was so understood by both parties, both by their actions and declarations, though the defendant sometimes denied it. The fact that a survey was to be made before the .execution of the last note for the consideration, and the deed, is almost conclusive of that fact. It is entirely so when combined with the declarations of both parties at, before, and after that time.

The testimony also raises a strong presumption that the defendant knew of the excess before the writings were drawn and signed, and concealed it from complainant. The facts are, that the survey was made by Hamilton on the day agreed upon; but the calculation was not made on that day, but was to be made out that night, and on the next day the parties were to meet again at the house of complainant, and execute the writing — the contract still resting in parol. The surveyor and the defendant went and staid together at the house of a neighbor, and returned next day about dinnertime, with the deed and notes prepared. The defendant read over the deed, and being in a great hurry, procured it to be signed by complainant, delivered his notes, and went off. At the time of signing the deed, complainant inquired whether the survey made out more or less than thirty acres; and referred to the contract, that whether more or less, the price agreed upon was $85 per acre. The .defendant asserted that he did not know how much there was, but he was to pay $1,050 for the tract, or $85. per acre for thirty acres, without regard to the actual number. So, after a short conversation, he went off in haste, having, as he said, urgent business of an official character to attend to at home, carrying the deed with him. It is impossible for the mind to doubt, from these facts, that he and Hamilton had made a calculation upon the field-notes that night, at least, so' far as to be convinced that the tract exceeded thirty acres, and that this fact was purposely concealed from the complainant. It appears that the complainant was weak and sickly,’ and about sixty years of age. It may be that Gregory said what was literally true, when he asserted that he had not made an accurate calculation of the quantity, and that he did not know the exact quantity. But that he did know there were more than thirty acres there can be no question. He should have stated this fact to complainant, and not suppressed it when inquired of on that point; and more especially as he was with the surveyor, wlm was acting for both parties.

But still it is contended that the deed must be taken as containing the true and full contract, and that no parol testimony can be heard to change or reform it.

That such is the general rule, both at law and in equity, no one will be heard to question. But it is just as unquestionable that this may be done where clear proof is made of fraud or mistake. Both positions are too familiar to permit a reference to authorities.

The power of a Court of Equity to reform deeds in cases of fraud or mistake, was exercised by this Court in Williams v. Conrad, 11 Hum., 415; 8 Hum., 230; and 1 Hum., 433. The authorities are all collected in White and Tudor’s Lead. Ca., vol. 2, part 1, 558 to 596.

But in this case, perhaps, it is unnecessary to resort to the doctrine of reforming deeds, by the proof of mistake or fraud. The deed, perhaps, gives the boundaries correctly according to the survey, and needs no change; but the statement of the quantity of land contained in those limits is inaccurate, and so is the amount of the consideration. That the consideration stated in a deed is only prima facie, and may be controverted by parol, has been often held. This deed is silent as to the disputed question, whether the sale was by the acre or in gross. To establish the former, and obtain pay for the lohole quantity sold, is the object of the bill. This fact may be made out by parol or extrinsic written evidence. At the last term at Knoxville, in the case of Bently v. Miller and Wife, not yet reported, we gave relief to the purchaser, Bentley, upon the ground that the sale was by the acre, as proved by extrinsic evidence, where the deed was like the present, because of a deficiency of acres. Such is the uniform course of decision where there is a substantial deficiency, and the contract by the acre; or, even in gross, wheret here is fraud or imposition. Not so, where the contract is fair, and the sale is by the tract upon the judgment of the parties.

The same rule must apply, under the same circumstances, in favor of the vendor where there is an excess, for which, by mistake or fraud, he has received no compensation, or has been deprived of the benefit of his contract of sale by the acre. Horn v. Denton, 2 Sneed, 125.

The complainant, then, is entitled to relief upon the ground of his actual contract, the mistake in the settlement carried into the writings executed, and for the fraud of the defendant.

The decree of the Chancellor will be affirmed with costs, and the cause remanded for further proceedings upon his decree, which is in all things correct.  