
    Hugh Frazer v. William S. Harvey.
    Misrepresentations concerning that, which is merely matter of opinion, as of the quality of the soil of lands, or of the relative quantity of high land and swamp, not founded on a survey, or other means of accurate information, will not intitle the purchaser to an abatement of the price agreed upon.
    To intitle the purchaser to an abatement of the price on the ground of misrepresentation, it must appeal1, that the misrepresentation was so made, as that the party may be supposed to have acted on the faith of it in concluding the contract, without examining or judging for himself.
    A party executing a mortgage is estopped from denying that the title to the landwasin him.
    Tried before Mr. Justice Gantt, at Georgetown, Spring Term, 1829.
    This was an action of debt on bond. The execution of the bond was admitted. On the other hand, it was admitted, that it had been given in payment of a tract of land ; and the defendant claimed an abatemeut in the price, for a deficiency in the quantity of tide swamp, which it was alleged, that the plaintiff had represented the tract to contain. It was not alleged, that there was ariy misrepresentation in the deed of conveyance from plaintiff to defendant; but although plaintiff had executed the conveyance, and delivered it as an escrow, and had had it recorded, defendant denied that it had ever been delivered to, or accepted by him: And he relied upon a letter, written to him by the plaintiff previously to the sale, in which the character and qualities of the land were described. Parol proof was offered to shew, that the quantity of tide swamp had been misrepresented in this letter; but his Honor rejected the evidence, regarding the letter as a mere overture of sale, and an invitation to defendant to examine the land, and not a warranty of its qualities.
    The defendant had executed a mortgage of the land to plaintiff; which his Honor held to be strongly presumptive of his acceptance of the conveyance. But thought the evidence of delivery otherwise conclusive. Verdict for plaintiff.
    The defendant now moved to set aside the verdict, and for a new trial on the ground: That defendant’s acceptance of the conveyance was a question of fact for the jury, and the testimony had left it at least doubtful; that if in fact the conveyance had not been accepted, the defendant had a right to rely upon the plaintiff’s letter, and to shew that it misrepresented the value of the land; and that the whole question should have been submitted to the jury, and the testimony offered by defendant allowed to go to them.
    Dunkin, for the motion.
    Hunt, contra..
    
   Harper, J.

delivered the opinion of the Court.

The purpose of the defence, offered in this case, I understand not to have been to shew any breach of warranty, or that the land did not answer the description of the conveyance, which was at least delivered as an escrow, if not received.by defendant; but to shew, that the defendant was deceived by the representations of the plaintiff, made previously to the sale, as to the quality of the land, and particularly as to the proportion of swamp land. These misrepresentations are supposed to have been made in a letter, written by the plaintiff to the defendant, previously to the concluding of the contract.

The law which permits a purchaser to obtain an abatement in price, on account of such misrepresentations, which we have borrowed from the civil law, and the practice of Equity, is perhaps not very well settled. One rule, however, is, that a misrepresentation concerning that which is merely matter of opinion, as for example the quality of the soil, will not in title the purchaser to an abatement. So it might be with respect to the relative quantities of swamp and high land, if the representation purported to be made as matter of opinion, and not to be founded on a survey or other means of accurate information. It must also be made in such a way, that the party may be supposed to have acted on the faith of it in concluding the contract, without examining or judging for himself. The letter in question is not before us ; but we understand from the report of the Judge,thatit was in evidence, andthat he considered it “ as amere overture of sale, in which the defendant was invited to examine the land.” If such was its character, we think it might have been properly rejected as evidence, and that the parol evidence to shew the incorrectness of its representation was properly rejected.

Whatever the representations of the letter were, we think the defendant must be concluded to have accepted the conveyance. The fact mentioned by the Judge, that he executed a mortgage of the land to the plaintiff, was not merely “ presumptive,” but conclusive. He was estopped by it, to deny that the title was in him. The conveyance is not before us, nor do we know it» terms or the description there given of the land, yet this is necessary to be proved, before we can judge of the merits of the defence offered by the defendant. We cannot perceive that there has been any error at the trial, and the motion must therefore be dismissed.  