
    Lee vs. Durret.
    
      April 14.
    T) purchafed of M 2$cacres, his choice out of a tradt j the furvey of the quantity was made b.v Lj to whom M fold and conveyed the refid ue-
    The furvey made for D lal. ling Ihortof the quantity, L, who ' purcbafeú with notice of the- prior pur. chafe of D,lhall convey to him tfce oeficit,
   OPINION of the Court, by

Cb. J. Rotue.

Master-son-, being the owner of a tract of land of 500 acres, sold to Durret 250 acres, his choice thereof, and afterwards sold the residue of five tract to Lee. At the request of Mas-erson, Lee, who was the county surveyor, laid off DorrePs land, he having previously made choice of tho side on which it should lie $ and deeds of conveyance were made by Masterson to Lee and Durret, according to the survey made by Lee. Durret having subsequently discovered that his tract as describe;! in his deed was less than his true quantity, filed this bill to obtain from Lee a conveyance of so nyicli of his tracfjis would supply the deficit. The court below decreed accordingly^ from which decree Lee has appealed to this court;

That there is a deficit in the tract conveyed to Dur-ret, is a fact not contested. How this deficit was produced, whether by fraud or mistake, and if the latter, as is quite probable, whether the mistake was that Of the chairmen or surveyor, cannot be material. It is. plain, from the circumstances of the case, that Durret received his deed on the faith of its containing the quantity he Isad contracted for ; and his consent to waive Ms right to any part of it, cannot therefore be presumed.

That his equity, to the whole extent of his purchase, is superior to Lee’s, is dear: for his purchase was made before Lee’s ; and the rule in equity is, that priority of time gives the advantage in right. Had Lee indeed been ignorant of the quantity to which Durret by his contract was entitled, he might have shielded himself upon the ground of his being a purchaser without notice. But the fact is not alleged by Lee, and every circumstance of the transaction precludes such an idea. Durret then having shewn a superior equity to so much of the land held by Lee as will supply the deficit in the quantity contained in his deed, has made out a clear case for relief.'

As to the objection to the decree for costs, if Lee had, when the mistake was discovered, shewn a willingness to correct it, the objection ¡night have been entitled to weight; but he has manifested no such disposition; on the contrary, he has resisted the claim, to every extent and in every shape in which it was made.

The decree is therefore correct, and must be affirmed With costs. <  