
    Fleet v. Hawkins.
    Decided, Oct. 19th, 1818.
    i. Sale of Land — Risk as to Quantity.— Though a purchaser of a tract of land agree to pay so much by the acre, yet if he also agree to take it by the Patent, or survey already made, as fixing the number of acres in the tract, (without any fraud, concealment, or misrepresentation, on the part of the vendor,) he thereby takes upon himself the risk as to quantity; by which he might be gainer or loser; and therefore is not entitled to any compensation for a deficiency.
    See Jolliffe v. Hite, 1 Call 339; Hull v. Cunningham’s ex’or, 1 Munf. 336.
    On the 5th of October 1807, Fleet agreed to sell Hawkins a tract of land, supposed to contain three hundred and seventy acres, at fifteen dollars per acre, and put him ia possession, according to contract, about the end of the same year. The land was held, partly, under a Patent for 352 acres; the residue was a small tract, purchased of one Hoffman, which afterwards was surveyed and found to contain upwards of nineteen acres.
    
      In pursuance of this agreement, a conveyance was made on the 8th of August 1808, stating the contents to be (as mentioned in the Patent and Survey of the small tract,) three hundred and seventy-two acres “more or less;” and, on the 12th of September in the same year, Hawkins, referring to the said conveyance, mortgaged the land to Fleet for payment of the purchase money. He afterwards paid- it off without objection ; but, in the year 1811, filed a bill in the Superior Court of Chancery for the Williamsburg District, to recover compensation for an alledged deficiency in the number of acres; stating that Fleet had defrauded him, by saying it was unnecessary to survey the larger tract, as it had been already surveyed; though he (Fleet) knew it did not contain the quantity called for; that the Deed containing the words “more or less” was executed by Fleet, and never seen by him (Hawkins,) until after it was recorded. *He therefore prayed that a part of the purchase money be refunded. The bill stated also a fraud, in not sowing wheat, delivering fodder, &c.
    The answer denied all fraud, and averred that the respondent held the larger tract by Patent for upwards of 352 acres; that, at the date of the contract, he offered the plaintiff his election to take it according to the survey referred to in the Patent, or to have it surveyed; and the plaintiff chose to take it according to the Patent; believing, as he said, that he should be a gainer thereby.
    Sundry depositions were taken, proving that Hawkins made his election, at the time of the contract, to take the larger tract by the old survey; that he was privy to the execution of Fleet’s deed to him, and accepted it without any objection. There was no proof of any fraud, concealment, or misrepresentation, on the part of the defendant.
    A survey was made by the Court’s order, and returned; according to which, the whole tract contained only three 'hundred and thirty-eight acres.
    The cause being removed to the Court of Chancery holden in Richmond, Chancellor Taylor, on the 26th of January 1815, decreed as follows. “The Court, acquitting the defendant of any intention to perpetrate a fraud on the plaintiff, in the contract which is the subject of controversy, but being nevertheless of opinion that the sale of land made in this case by the defendant to the plaintiff, was a sale by the acre, and not a sale in gross, and that, consequently, if the defendant hath received of the plaintiff payment for a greater number of acres than he did in fact convey to him, he holds so much money of the plaintiff’s, which the defendant ought in equity and good conscience to refund; and it appearing, by a comparison of the deeds with the report of the survey made in this cause, that the lands so sold by the defendant to the plaintiff do in fact fall short of the estimated quantity by thirty-four acres, for which the defendant by his answer acknowledges himself to have received payment according to the terms of the mortgage exhibited in the *cause; that is to say, on or before the 1st of January 1810, the day of payment of the last instalment; doth accordingly adjudge, order and decree, that the defendant pay to the plaintiff five hundred and ten dollars, with interest thereon from the said 1st of January 1810, ’till payment, together with the costs of this suit; and that the Bill, so far as it seeks other relief from the defendant, be dismissed.” From which decree, the defendant appealed.
    Wickham for the appellant.
    Upshur and Stanard for the appellee.
    
      
      Sale of Land — Deficiency-Compensation.—See on this subject, foot-note to Hull v. Cunningham, 1 Munf, 330. The principal case is cited on the subject in Bierne v. Erskine, 5 Leigh 64, see foot-note to this case; Weaver v. Carter, 10 Leigh 47 (see foot-note to this case); Caldwell v. Craig, 21 Gratt. 138 (see foot-note to this case); Reed v. Patterson, 7 W. Va. 268; Crislip v. Cain, 19 W. Va. 549, 556; Depue v. Sergent, 21 W. Va. 338.
    
   This Court’s opinion was delivered by

JUDGE ROANE,

as follows.

The Court is of opinion that, altho’ the original proposition for the sale of the land in question,‘was one of a sale by the acre, at the rate of $15 for each acre contained in the two tracts proposed to be sold, the contract assumed a different character as to the larger tract, by the agreement of the parties to refer to the patent as fixing the quantity therein contained. By this agreement, the right to survey that tract was renounced by the appellee; and, as to it, it became a contract of hazard, by which he might have gained. That agreement is express to pay for that tract, as much money as would result from multiplying the number of acres mentioned in the patent by the price per acre originally proposed to be given; and is not different from one in which tne sum had been actually extended, and in terms promised to be paid. It was entirely competent to the appellee to waive another survey, and abide by the one already made; and it is a risque by which it is proved he expected to gain. On the part of the appellant, his conduct was entirely fair. He represented nothing but what he believed to be true, and which he had good grounds for so believing; and he fairly exhibited to the ap-pellee his survey and patent, as the grounds and foundation of his belief, as to the number of acres contained in the larger tract. With a full knowledge of all the circumstances, and as much knowledge, as to the quantity, as the appellant himself is shewn to have had, the appellee entered into the contract; and *his own construction thereof is evinced to have corresponded with our’s, by his agreeing, in the deed, accepted more than ten months thereafter, to pay the gross sum resulting as aforesaid.

On these grounds the Decree is to be reversed, with Costs, and the bill dismissed.  