
    
      Hundley v. Lyons.
    Jan. 30, 1817.
    1. Sale of Land — Surplus—Liability of Vendee.When-ever it does not clearly appear that the Land was sold by the tract, and not by the acre, the Vendee ought to be responsible for the value of the surplus land found in the Tract: and. if no circumstances appear to give a different rule, such value is to be estimated by the average value, per acre, of the whole purchase.
    See, in Nelson v. Matthews, 2 H. and M. 178, the same rule in case of a deficiency of quantity.
    2. Same —Ño Day Specified for Delivery of Deed — Effect. —In a Contract for sale of Land, if no day be specified for delivering- tlie Deed and possession of the Land, but the Money be payable after the delivery of the Deed: it must be understood that the Deed is to be delivered, and possession given, without delay. If, therefore, (in consequence of a misunderstanding between the parties in relation to the terms of the sale,) this be not done; the Vendor is bound to account for and pay the profits of the Land received by him after the Contract; and the Vendee to pay the Interest on the money from the time when it would have been payable if the Deed had been immediately delivered.
    3. Same — Same—Specific Performance — Decree.—In such case, in a Decree for specific performance, liberty should be reserved to the Vendee to use the name of the Vendor to recover rents, in ar-rear from lessees of the Land, which became due between the date of the Contract and the delivery of the Deed.
    
      4. Same — Specific Performance — Decree— Reservation of Vendor’s Lien.--On a Bill for specific performance exhibited "by the devisee of the purchaser, the Court, in decreeting the conveyance, ought to reserve to the Vendor a lien on the Land, to secure the payment of the Purchase Money.
    This was a suit in Equity brought by John Lyons son and devisee of Peter Lyons, deceased, against William Hundley, in the Superior Court of Chancery for the Richmond District, for specific performance of an Agreement between the Hon. Peter Lyons in his life time and the defendant.
    The following written documents, or notes concerning the agreement, passed between the contracting parties, sometime in the year 1807, viz. Hundley made a proposition, in his own hand-writing, in these words: — “By estimation an old Tract 304 acres, lying between Christopher Smith, William Gardner and others, (200 in Wood Land,) purchased of Daniel Hundley by survey; one hundred and-thirty two acres, one half in Wood (School House) Land, purchased of. John P. Hundley, say 100, more or less, bn which my mother now resides, there is supposed to be two hundred and fifty acres of the above Lands in Wood. Wm. Hundley.” To which proposition, the following answer was made in the handwriting of Judge Lyons: “On a good Title being made to me for the above described five hundred and thirty six acres of Land, I will give four thousand dollars, payable in instalments of one thousand dollars a year from the date of conveyance. P. L.” To this Hundley replied, “X agree to the above on your paying one thousand dollars in hand, or within three months after the Deed is made with general warranty, deducting for any deficiency of quantity, on a survey to be made, at joint expense, before Deed executed. W. Hund-ley.” To which Judge Lyons answered, “I will not engage positively to pay one thousand dollars in three months, but I will pay it in six months, and sooner if I can ’command it, or as much as X can command, and the next in-stalment twelve months after, and so on annually until the whole is paid. P. L.”
    Before any survey was made in pursuance of this agreement Hundley received the first thousand dollars in part of the purchase money, and, (as he alleged in his answer) put Lyons in possession of the Land, except the one hundred acres in which his mother had a life estate: but it appeared that, part of the Tract being leased to a certain George Toombs, Hund-ley continued to receive the Rent from that Tenant for several years; and, after his mother’s death, (which happened in 1809,) he occupied and applied to his own use, the profits of the said hundred acres, for which, in the same Answer, he said he was willing to account. In the year 1808, a survey of the Lands, collectively, was made, shewing an excess in quantity of fifty-four acres; whereupon, it appeared that a misunderstanding had existed between the parties, in relation to the meaning of the agreement; Lyons contending that he was not bound to pay for such excess; but Hundley insisting that he was. The Conveyance was therefore not executed, and no farther payment was made of the Purchase Money.
    In the year 1809, Judge Lyons died; having, by his last Will devised the Lands in question to the plaintiff for life, with remainder to his son Peter Lyons in fee. After his death, (an attempt to settle the controversy by a compromise having proved abortive,) the suit was brought as aforesaid ; in the progress of which, from the Bill, Answer, Depositions and Exhibits, the foregoing appeared to be the material circumstances of the case. An Order of Survey was made and executed, the result of which shewed an excess, in the quantity, of fifty six acres and three roods.
    At January Term, 1814, Chancellor Taylor, “being of opinion that, as the contracting parties seem to have entered into the agreement, in the Bill mentioned, without contemplating any excess of Land at the time, the plaintiff claiming under Peter Lyons deceased should, upon general principles, be accountable for such excess at the average value of the whole Tract; that, under the general rule of equity, the defendant is not accountable in this case for profits, nor entitled *to interest,  but from the time he shall execute and deliver to the plaintiff a proper Deed of conveyance, with general warranty, for the Land in the Bill mentioned;” therefore decreed, “that the defendant do forthwith execute such a Deed to the plaintiff, (with remainder to Peter Lyons, his infant son and his heirs, agreeably to the last Will and Testament of the Hon. Peter Lyons deceased;) and that the plaintiff (who, being in Court in his proper person, consented thereto,) do thereupon execute to the defendant three Bonds, with -security, for one thousand dollars each, payable in three annual instalments, to commence from the delivery of the said Deed, and also pay to the said defendant the sum of four hundred and twenty-three dollars and forty-nine cents, being the average value of fifty-six acres and three roods, the excess of Land as aforesaid; that an account be stated by a Commissioner between the plaintiff and the defendant, charging the former with any profits derived either by his father or himself from any part of the Land in question, and crediting him for the Interest of the one thousand dollars, from the time the same was paid, to the time the said Deed may be delivered; stating such matters specially as he may think pertinent, or as the parties may require to be so stated.”
    At January Term, 1815, the defendant deposited with the Clerk of the Court a Deed, in execution of the above Decree; which was filed among the papers. In June 1815, the cause came on to be farther heard, upon the papers formerly read and the Report of a Commissioner; whereupon, the Chancellor decreed that the defendant pay to the plaintiff the sum of three hundred dollars and twenty-one cents, (a balance stated by the Commissioner as due to the plaintiff upon the account,) and the Costs; and that the plaintiff do appeat, on a given day, to shew cause why an Attachment should not be sued forth against him for his contempt in failing to execute the Bonds to the defendant as before directed.
    From this Decree thedetendant appealed.
    Wickham for the Appellant.
    Nicholas for the Ajipellee.
    
      
      SaSe of Land — Contract of ffasard — Presumption.—■ Contracts of hazard have never been discountenanced in Virginia. Where they are clearly established, they are valid, and will be respected and enforced, if fair and reasonable. But, though such a contract of hazard is valid, it is not readily to be presumed that the parties designed to enter into such a contract, unless it is clearly sustained by the facts. The courts will not favor such a construction; but they will rather take it, that a contract is by the acre, whenever it does not clearly appear, that the land was sold by the tract, and not by the acre. Keyton v. Brawford, 5 Leigh 48, citing the principal case as authority for the statement. To the same effect, the principal case is cited in Blessing v. Beatty, 1 Rob. 303; Hendricks v. Gillespie, 35 Gratt. 301; Graham v. Larmer, 87 Va. 324, 13 S. II. Rep. 389; Oris)ip v. Gain, 19 W. Va. 531. 531. And. in Watson y. Hoy, 38 Gratt. 704, it is said: ‘'Whether the contract of sale was one of hazard as to quantity — In other words, whether it was a contract for the sale of a certain tract of land, whatever number of acres it might contain, or of a specific quantity — depends upon the intention of the contracting parties, to be gathered from the terms of the contract and all the facts and circumstances connected with it. While contracts of hazard in such cases are not invalid, courts of equity do not regard them with favor. The presumption is against them: and while such presumption maybe repelled, it can only be effectually so done by clear and cogent proof. Jollie y. Hite, 1 Gail KOI, 308; Hundley ». Lyons, 5 Munf. 342; Nelson v. Carrington, 4Munf. 333, 340; Keyton v. Brawford, 5 Leigh 39; Russell v. Keeran, 8 Leigh 9; Blessing v. Beatty, 1 Rob. 387, 303; Caldwell v. Craig, 21 Gratt. 186; Triplett v. Allen, 26 Gratt. 731.”
      On this subject, see further, foot-note to Nelson v. Matthews. 2 Hen. & M. 164; foot-note to Keyton v. Brawford. 5 Leigh 39; foot-note to Russell v. Kee-ran, 8 Leigh 9; foot-note to Blessing v. Beatty, 1 Rob. 287; foot-note to Caldwell v. Craig. 21 Gratt. IS2; foot-note to Watson v. Hoy, 28 Gratt. 698.
      Same — Sale by Acre— Abatement — Compensation,— The rule of compensation or abatement in a sale of land by the acre where there has been a deficiency or a surplus, is according to the average value per acre of the whole trad, unless particular circumstances require a departure from that rule. See further on this subject, the foot-note cited above.
    
    
      
       Note. The plaintiff contended for profits of the Land; the defendant for interest on the Purchase Money, which claim the plaintiff opposed.— Note in Original Edition.
    
   ^January 30lh, 1817, JUDGE ROANE pronounced the Court’s opinion.

'The Court is of opinion that, as it does not clearly appear, from any final and conclusive agreement, between the Appellant and the Testator Peter Lyons, among the proceedings, that it was the intention of the said parties to buy and sell the Land, the subject of the present controversy, by the tract, and not by the acre, there is no error in so much of the Decree before us, as holds the representatives of the said Peter Lyons responsible for the average value of the surplus Land, found to be contained in the Tract.

The Court is farther of opinion that, as the Appellee has gone into a Court of Equity for a specific performance of the Contract, which was probably only delayed from the misunderstanding of the parties and other causes, that Contract should have been decreed to have been executed in specie, by causing the Appellant to make a Deed for the whole Land to the Appellee for his life, with remainder fo his son Peter Lyons in fee, on his receiving from the Appellee, or from the proper representatives of the said Peter Lyons, (who for that purpose ought, if necessary, to have been made parties,) the sums yet remaining due under the Contract, including, as part thereof, the average amount of the surplus Land aforesaid, with Interest, from the expiration of eighteen months from the date of the Contract, upon one third part thereof; with Interest, on another third, from the expiration of twelve months thereafter; and Interest, on the remaining third, from the expiration of twelve months from the said last mentioned clay; and reserving-to the Appellant a Hen on the said Land, to secure the payment thereof, if necessary; and that the Appellant on his part should have been decreed to pay the profits of the said Land, after the date of the Contract, whether derived from his own occupancy thereof, or received by him from others, and including the part held by his mother, after the period of her death; and that the Arjpellee should have had liberty reserved to him to use the name of the Appellant, if necessary, to recover any sums due from ■George Toombs for the use of a part of the Laud aforesaid.

The Court is therefore of opinion, and accordingly decrees, that so much of the said Decree, as is hereby approved be affirmed; *and that so much, as conflicts herewith be reversed with Costs; and the cause is remanded to the Court of Chancery to be finally proceeded in pursuant to the principles of this Decree.  