
    William Couse v. Alexander Boyles and Ebenezer Aber.
    Where the vendor agrees to convey a farm “said to contain one hundred and thirty-five acres, be the same more or less,” and the deed executed in pursuance of the agreement describes.the land by courses and distances, and adds, “containing one hundred and thirty-five acres, be the same more or less,” if there proves to be a deficiency of over twenty acres in the quantity of land actually conveyed, the purchaser, upon a bill filed by the vendor for the foreclosure of a mortgage given to secure a part of the purchase-money, will be entitled to have an abatément or compensation for the deficiency in the quantity of land.
    Under such circumstances the court will not first direct the land to be sold, to ascertain whether it will not, at the reduced quantity, bring the price at which it was sold.
    Where land is sold as containing so many acres, more or less, if the quantity on an actual survey and estimation, either overrunning or falling short of the contents named, be small, no compensation should be received by either party : the words “ more or less,” must be intended to meet such a re-salt; but if the variance be considerable, the party sustaining the loss should be allowed for it, and this rule should prevail when it arises from mistake only, without fraud or deception.
    And it seems that the rule applies although the land is not bought or sold professedly by the acre, the presumption being that in fixing the price regard was had to ,the quantity.
    If the purchaser know the true quantity at the time of his purchase, or there are words used clearly indicating the intention of both parties not to be governed in the sale by the amount of land, the purchaser will not be entitled to relief.
    It is not a sufficient objection to allowing an abatement of the price, that the contract has been executed.
    If a case be once properly before the court, the court will do all in its power to settle the rights of all the, parties in the matter in controversy, justly and equitably by one decree.
    The fact that the purchaser lives near the land and sees it daily, can have no bearing on the question, nor can the doctrine of caveat emptor have any application. A purchaser has a right to rely upon the vendor for the number of acres, and may place implicit confidence in his statements.
    Where the deficiency in the quantity of land sold, is ascertained by the vendor between the execution of the contract of sale and the delivery of the deed, he is bound to make it known to the purchaser; and with a knowledge of the deficiency, to deliver a deed to the purchaser for a greater number of acres than the tract contains, without disclosing the truth respecting it, is a palpable fraud.
    
      Vroom, for complainant.
    
      Dayton, for the defendant.
    Cases cited by the complainant’s counsel; 2 Kents Com. 380; Yelverton, 21; 1 Sugden on Ven. 382 383; 6 John. Chan. 233; 2 Freeman, 106; 6 Vesey, 678; 5 Vesey, 508; 6 Binney, 102; 13 Price, 749; 1 Sugden, 562.
    Cases cited by defendant’s counsel: Halst. Dig. 146; 1 Peters, 49; 1 Sugden on Ven. 320, 301, 309, 319; 1 Caines, 493; 2 John. R. 37; 17 Vesey, 395; 16 Vesey, 1; 9 John. R. 450, 464; 10 Vesey, 293, 315; 1 Vesey, 218 221; 2 Brown’s 
      
      C. R. 118; 2 Hen. and Mun. 173; 17 Vesey, 274, 279; 1 Sugden on Ven. 322, 321, 307; Cooper's Eq. 308; 1 John. Chan. 213 218; 2 John. Chan. 521, 522; 1 Serg. and Rawle, 166; 1 Vesey and B. 375; 2 Hen. and Mun. 164; 1 Day, 256; Powell on Con. 147; 1 Sugden on Ven. 563; 2 Brown's C. R. 119.
   The Chancellor.

This is a bill for the foreclosure of a mortgage given, by the defendant, Boyles, to the complainant. The making of the mortgage is admitted, but it is alleged that it was given for a part of. the consideration money, on a farm purchased of the complainant, which, upon a survey and estimate bf the land, falls short of the number of acres for which it was sold; and the defendant claims an abatement for such deficiency.

The article of agreement on which the sale took place, was dated the first of November, eighteen hundred and thirty-seven, and by it, the complainant and one Jane Negus, who were the owners of the property, agreed, for the consideration of five thousand and five hundred dollars, to convey to the defendant, Boyles, on or before the first of April thereafter, a farm on which the parties then resided, in the township of Newton, in the county of Sussex, “ said to contain one hundred and thirty-five acres, be the same more or less.” The deed was made out for the property and bears date the twenty-ninth of March, eighteen hundred and thirty-eight, but was not delivered until the fifth of November, eighteen hundred and thirty-eight, at which time the defendant, Boyles, accepted the deed and went into possession. Two thousand dollars was paid or otherwise satisfactorily arranged with the complainant, and the balance, being three thousand, and five hundred dollars, was secured by the mortgage on which this suit is brought, upon the property purchased. The deed has a full description of the premises by courses and distances, and as to quantity of land, uses this language; "containing, after excepting out of the foregoing survey, a certain lot of thirty-seven hundredth's of an acre, used for the purposes of a grave-yard, and heretofore conveyed for that purpose, one hundred and thirty-five acres, be the same more or less.”

By the evidence of Charles Rhodes, a surveyor, it seems the complainant, on the day of the date of the deed, employed him to run out the land, which he did, and drew the deed from his survey. At this time the surveyor did not make a calculation of the quantity of land in the survey, but told the complainant he did not think it would hold out. The complainant directed him to put in the quantity at one hundred and thirty-five acres, but desired him to make a calculation for his satisfaction. This he did in June following, which was before the deed was delivered, and found it to contain but one hundred acres and eighty-five hundredths. He informed complainant how his estimate turned out, who said, he must have made a mistake; he said he thought not, as he had been over it twice. The surveyor then went over the calculation a third time, and told the complainant there was no mistake in it, and when he so informed complainant, he desired him to say nothing about it. The complainant has, since the delivery of the deed, caused the land to be run out by Grant Fitch, and a calculation of the quantity to be made by him, and the result is, that he makes it to contain one hundred and twelve acres and forty-three hundredths. Thus it seems, by the estimate of Mr. Rhodes, there is a deficiency of rising thirty-four acres, and by that of Mr. Fitch, of rising twenty-two acres.

Two questions are made upon these facts ; whether the defendant, Boyles, under this contract and deed, is entitled to have any abatement or compensation for the deficiency in the quantitity of the land; and if so, whether ho can have it in this action.

Upon the first question, it is quite evident it was in the contemplation of these parties at the time, that the quantity of land sold was one hundred and thirty-five acres; both the contract and the deed call for that number of acres, and it is reasonable to suppose that before the survey of Mr. Rhodes, they thought that very, near, if not exactly, the amount of land. The books are full of cases on this subject, for it is á difficulty has often arisen and created much discussion. It is evident, too, that different views have been taken of it in different courts. The plain and sensible rule, as it appears to me, is this; when-land is sold as containing so many acres “more or less,” if the .quantity on an actual survey and estimation, either overrunning or falling-short of .the contents named be small, no compensation should be recovered by either party. The words more or less, must be intended to meet such- a result. But if the Variance be considerable, the party sustaining the loss should be allowed for it. And this rule should prevail where it arises from: mistake only, without fraud or deception. The case of Hill v. Buckley, 17 Vesey, 401, decided by sir William Grant, master of the rolls, is very much in point, and settles the question in a satisfactory manner. That was a bill for a. specific performance ; the quantity of land was represented to be two hundred and seventeen acres and ten perches. It turned out to be about twenty-six acres less, and the party had an abatement pro tanto. In this casé- too, there. was no evidence of any intended deception; and the rule is stated to apply generally, although the land is not bought or sold professedly by the acre ;‘the presumption being, that in fixing the price,' regard was had to the quantity. If the purchaser know the true quantity at the time of his purchase, or there áre words used clearly indicating the intention of both parties not to be governed in the sale by the amount of land, the purchaser will not be entitled to any relief. I refer upon this subject to 6 Vesey, jun. 328; 1 Vesey and Beames, 377; and to Sugden on Vendors, 218, and the note containing a reference, to the American cases. Nor do I think it a sufficient objection to allowing an abatement of the price, that the-contract has been executed. It is true, the cases cited refer to contracts remaining in fieri, but the principle is the same whether the contract only be executed or-has been consummated by giving the deed; the injury is the same which the party sustains in the one case as the other; the mode of redressj and indeed the power of the court over the case, may be very different. Whether a court of equity will entertain jurisdiction for the sole purpose of giving compensation or damages to a complainant, for any deficiency in the quantity of land conveyed, after a conveyance actually made, is a very different, question from making such allowance to a party who comes into court and asks a specific performance of an unexecuted agreement. If the case be once properly before the court, it will do all in its power to settle the rights of all the parties in the matter in controversy, justly and equitably, by one decree.

Under this agreement and deed, therefore, I deem the defendant equitably entitled to an abatement for the deficiency in the number of acres, upon the supposition that it was a mistake only, and without knowledge to the contrary by either of the parties, at the time of the contract. It cannot be supposed that it was believed by either party that the deficiency, as shown by either surveyor, was so large, or it would have affected the terms of the contract. The defendant, by his answer, distinctly declares he never would have paid the price he did, had he known the true quantity of land. The variance is too large to be passed by J taking a medium quantity between the two estimates, and it will leave a deficiency of nearly thirty acres on the purchase of one hundred and thirty-five acres. The fact that Mr. Boyles lived a neighbor and saw the land daily, can have no bearing on the question, nor can the doctrine of caveat emptor have any application. A purchaser relies, and has a fight to rely upon the vendor for the number of acres, and may and usually does place implicit confidence in his statements.

But there is a farther view of this case, which places the defendant’s equity on a still firmer ground. While it is manifest that he was ignorant, except from the complainant’s representations, of the quantity of land in the farm, the evidence shows that before the bargain was consummated by the delivery of the deed, the complainant knew all about it; his own surveyor, after going over the calculation three times, told him how much land- there was, and the complainant desired him to say. nothing' about it. There are several other occasions stated in-the evidence, of complainant’s referring to this subject, and desiring that it might not be mentioned, and even boasting that Boyles had not got the land as cheap as people thought, on account of its falling short in the quantity. He even went so far as to excuse himself for not having mentioned it to the defendant at the time of the sale, because he wished to get a Mr. Aber in as security for the money, who was rich and could stand it. When this deficiency was discovered by the complainant, he was bound upon every principle of common justice to make it known to the defendant; and to go forward with the knowledge he then possessed, with a deed for one'hundred and thirty-five acres and present it to the defendant, keeping him in the dark respecting it, was a palpable fraud.

Upon the remaining question, as to the power of the court, in granting this abatement to the defendant in the present action, I, can see no serious difficulty. In a variety , of cases, upon a bill for a specific performance, the court have directed a reference to a master to make the deduction, and why cannot the same course be adopted here? Inthe case of Coster v. The Monroe Manufacturing Company, in this court, on a bill to. foreclose a mortgage, where it appeared that the defendant had been ejected at law from, a part of the premises covered by the mortgage, and for which purchase the mortgage had been given; to prevent circuity of actions', a reference to a master was made to ascertain the damages sustained by the defendant, by the title so proving defective to a part of the lands, with a view of deducting it from the amount claimed by the complainant on his mortgage. This case is, in my view of it, still easier to be reached, and fully .within the power of the court. It is suggested-by the complainant’s counsel, that if the-court grant any relief, it should be by first directing the farm to be sold and see whether it will not, even at the reduced quantity, bring the price at which it was sold to Boyles. There would be manifest injustice in this course; prices of land may have varied very much, the defendant may have improved the farm, and besides he is entitled to have the land. Chief justice Spencer, sitting in the court of appeals, in 9 John. Rep. 465, takes an important distinction between the case of a vendor and that of a vendee, coming into equity for a specific performance. If the vendor cannot perform the contract entire, the vendee will not be compelled in equity to perform it pro tanto, but the vendee, if he cannot obtain the whole, will be entitled, if he desires it, to a performance of the contract for so much as the vendor may be able to give. If, therefore, the complainant could not convey the whole number of acres, the defendant, on this principle, is entitled to have a conveyance for as much as he is able to convey. I will not say, that cases may not arise in which it might be proper to rescind the entire contract, but this does not strike me as one, if such a question was properly under consideration, and more especially, as it appears the defendant upon learning the true situation of things, offered the complainant to rescind the entire contract, which he refused to do, and I now think he has waived any right which he might otherwise have had to the adoption of that course.

Let the case be referred to a master, to ascertain and report the amount due the complainant on his bond and mortgage, and to become due thereon, after, making to the defendant, Boyles, a rateable abatement in the price of the land between one hundred and thirty-five acres, and the number of acres actually covered by the survey; the true number of acres to be ascertained by the master, from the evidence already taken in the cause, and by causing such further survey and estimate to be made, as may be necessary to a safe result; and that he take the evidence of such further survey and estimate and return it with his report. Also, that he further report the amount due on the defendant Aber’s mortgage, and to become due thereon; and whether the property be so circumstanced as that a sale of part can be made, to satisfy the amount due, without prejudice, &c. 
      
       Ante, vol. i. page 467.
     
      
       See letter.
     