
    [Sunbury,
    June 20, 1825.]
    FREDERICK, for the use of FREDERICK, against CAMPBELL and another, Administrators of CAMPBELL.
    
      IN ERROR.
    Agreement on the 28th of November, 1811, by F.¡ to convey all his plantation in X. township, adjoining lands of .0. .B., and others, reference being had to several deeds of conveyance to F., will show the metes and bounds ; the whole tract contains two hundred and twenty-five acres, and allowance; two hundred and one acres the said F. has a patent deed for, and the remaining twenty-four he will also get a patent deed for. In April, 1812, a conveyance was made of two hundred and twenty-five aeres, more or less, and the hand money paid, and bonds given for the residue. In 1823, the vendee discovered by actual measurement, that the patented tract fell short twenty acres, and ninety perches. Held, that he is not entitled to any deduction, in a suit on bne of the bonds, for this deficiency.
    Parol evidence is admissible in such case, in behalf of the defendant, to show that at the time the deed was executed, the vendor declared to the vendee, that he had a good title to two hundred and twenty-five acres, and would warrant that quantity of land.
    This was a writ of error to the Court of Common Pleas of Mifflin county, in which a verdict and judgment were had in favour of the defendants.
    It was an action of debt, brought by Nicholas Frederick, for the use of John Frederick, against Margaret Campbell and William Harris, administrators of John Campbell, deceased, on a bond given by the intestate, dated the 2d of Jlpril, 1812, conditioned for the payment of two hundred pounds, on the 1st of Jlpril, 1817. It was proved by the defendants, that this bond was given as part of the consideration, for a tract of land, which Nicholas Frederick, by articles of agreement, dated the 28th of November, 1811, contracted to sell to John Campbell. By these articles it was witnessed, that the said Nicholas Frederick, for and in consideration of the sum of sixteen hundred pounds, (gold or silver money,) hath granted, bargained, and sold unto the said John Campbell, his heirs and assigns, all his. plantation in Lack township, adjoining lands of David Beales, and others, together with all and singular the houses, out-houses, gardens, orchards, &c. waters, water-courses, &c. reference being had to several deed's of conveyance to the said Frederick, will show the metes and bounds. The whole tract contains two hundred and twenty-five acres, and allowance; two hundred and one acres the said Frederick has patent deed for, and the remaining twenty-four acres he will also get a patent deed for, in at least two years from this date at his own expense, all taxes to be cleared off by Frederick, up to the 1st of April next, on all the above premises; Frederick to have the privilege to live in the new house till the 1st of October next, the garden, and pasture for two cows and three horses, till that time; Campbell to have possession on the 1st of April, next, 1812. But, previous to him, Campbell, having possession, • he shall pay the said Frederick in the following manner, to wit: On the 1st of April, next, the said Campbell shall pay the said Frederick in hand, the day he is to get possession of the premises, eight hundred pounds, Pennsylvania currency, the 1st of April, 1812, and give his bond for the residue in the following manner, to wit: To be paid to the said Frederick, on the 1st of April,
    
    
      £ 150 1813 £ 150
    
      £ 150 1814 150
    ¿0 150 1815 150
    
      £ 150 1816 150
    
      £ 200 1S17 200
    dS800
    The whole residue being eight hundred pounds, as stated in the above list of gales and dates, the two hundred and twenty-five acres, be the same more or less, unto the said John Campbell, his heirs and assigns for ever; and the grain that is now in the ground, on the premises, Frederick is to have the half. Campbell is to cut it, and find victuals. Frederick to find whiskey. Frederick to have pasture for the creatures till October, next; each to have half divided in the shock; and Campbell to give mortgage for security of paying the different gales, amounting to eight hundred pounds; and Frederick to give Campbell a full deed of conveyance, to warrant and defend against all manner of thing, person or persons, for ever, and Campbell to have possession the 1st of April next. The parties to these presents bind themselves to the above their heirs, executors, administrators, and assigns, in the penal sum of three thousand two hundred pounds.
    The defendants then called William MiJlllister, to prove, that the tract of land did not contain the quantity of two hundred and twenty-five acres, but that there was a deficiency in the quantity. To the admission of which witness, the plaintiff objected, but the court overruled the objection, and the plaintiff excepted.
    The defendants also called ,/l.lexander Work, and offered to prove by him, “ that he was present on the 2d day of Jlpril, 1812, when a deed of conveyance was executed by Nicholas Frederick and wife, to John Campbell, for the tract of land on which the said John now lives, and that the name Alexander Work subscribed as a witness te the deed from the said Nicholas to the said John Campbell, is the proper handwriting of this deponent. That Nicholas Frederick at that time produced a patent for two hundred and one acres, and thirty-two perches of land, and said he would procure a patent for twenty-four acres more. That ■ Nicholas Frederick stated to the said John Campbell, that he had a good title to two hundred 'and twenty-five acres, and some perches of land, and that he would and did agree to warrant and defend that quantity to the said 'John Campbell. That this conversation, and these declarations, tool? place before and at the time of signing thq deed, and at the time the hand money, eight hundred pounds, was paid, which was immediately on the execution of the deed.”
    The plaintiff objected to all that part of the evidence which goes to prove declarations of the parties, at the time of executing the papers. But the court overruled the objection, and the plaintiff excepted.
    It appeared by the evidence, that eight hundred pounds, the hand money, was paid on the 2d of Jlpril, 1812, when the deed was executed. Bonds were given for the instalments, of which all were paid, except the last, on which this suit was brought. The deed referred to the patent, described its boundaries, and was for two hundred and twenty-five acres, be the same more or less. An exact survey was had in 1823, and the quantity fell short twenty acres, and ninety perches, the patented tract being deficient.
    The court, after remarking on the parol evidence given in behalf of the defendants, and the testimony produced by the plaintiff, charged the jury, that if not being able to reconcile the parol evidence, nor to decide on which to rely, they should discard the witnesses, and recur to the writings alone, then, in the opinion of the court, on this article, deed, &c. if there is a deficiency of twenty acres, and ninety perches, it is not an immaterial amount, and that for which it was given could not be immaterial. The jury found "it verdict for the defendants.
    
      
      Hah and Blythe, for the plaintiff in error,
    now assigned as errors.
    1. The admission of the parol evidence for the defendants. They contended, that the intention of the parties was to .be collected from the words of the writings, and no case had gone so far as the present. It went not to show a mistake in drawing the writing, hut to alter the writing, where there has been no mistake. Snyder’s Lessee v. Snyder, 6 Binn. 489, 495. Dinkle’s Lessee v. Marshall, 2 Binn. 588. Parol evidence is not admissible to show a mistake in the quantity of land mentioned in a deed. Howe v. Barker, 3 Johns. 506.
    2. The court erred in the construction of the written agreement. The contract is for a gross sum, there is no mention of any price by the acre; the land is stated to contain so much', more or less. If the quantity had overrun, the vendor could not have demanded payment for the surplus. The construction of this writing is settled by the adjudged cases in this state. In Smith v. Evans, 6 Binn. 102, the plaintiff sold to the defendant, “ three tracts of land, containing nine hundred and ninety-one acres and a quarter, and allowance, at twelve shilling and sixpence per acre.” The plaintiff afterwards obtained patents in his own name, and executed a conveyance of the tracts to the defendant, describing them by courses and distances, according to the patents, and stating them as “ containing in the whole nine hundred and ninety-one aeres and a quarter, and allowance, &c. be the same more or less.” The defendant having previously paid a part of the purchase money, gave his bonds to the plaintiff, on the day after the conveyance, for the sum remaining due, with a mortgage on the three traets, stating them to contain, “in the whole, nine hundred and ninety-one acres and a quarter, and allowance,” and describing them by courses and distances. Upon a survey made, twelve years afterwards, the tracts were ascertained to fall short eighty-eight acres, and forty-eight perches; it was held, that the defendant was not entitled to any deduction from his bonds, oft account of the deficiency. Boar v. M'Cormick, 1 Serg. & Rawle, 166, and Large v. Penn, 6 Serg, & Rawle, 488, establish the same doctrine.
    
      Burnside, contra.
    This was not a sale of wild land, at a low price, but of a cultivated farm, the hounds of which were known to the vendor, and probably the quantity. The vendee was a Stranger, and trusted to the representations of the vendor. The price' not less than twenty dollars an acre. The writings were drawn by an ignorant scrivener.
    
      1st Error. According to the decisions in Pennsylvania, the parol evidence was admissible. It was evidence of what passed at the ssecuiiou of the writhes. Evidence of whet passed at sad immediately before the execution of a deed, is proper. Christ v. Devebaugh, 1 Serg. & Rawle, 469.
    
      2d. As to this point, it is material that the vendor resided at a distance, and the sale was of valuable improved land, at twenty dollars an acre. The vendor was to give a full deed of conveyance, and to warrant against all manner of thing and persons; thing here means quantity. A full deed, means a deed for the full quantity. He cited 2 Hen. & Munf. 164. 1 Dessaussure’s Reports, 433. 1 Munf. 330. Sudg. 230, 231.
   The opinion of the court wal delivered by

Duncan, J.

Questions of the nature raised in this cause are very frequent. They depend each one on its own circumstances, and admit of no general rule for the government of all cases. As this case finally rested on the articles of agreement and conveyance, independent of, and without relation to the parol evidence, and as, in this view, it was an unmixed question of law, — was the construction of the court, as to the deduction for the deficiency of the quantity on actual measurement, the just construction in law?

The contract was executed by, the parties, the hand money paid, conveyance given, and bonds for the instalments, all of which were paid except the last one, on which the present action was brought

The articles of agreement describe the land, as “all his plantation in Lacle township, adjoining lands of David Beales and others. Reference being had to several deeds of conveyance to Frederick will show the metes and bounds. The whole tract contains two hundred and twenty-five acres and allowance; two hundred and one acres of which the said Frederick has a patent deed for, and the remaining twenty-four acres he will also get a patent deed for, in at least two years from this date, at his own expense.” This contract was entered into on the 24th of November, 1811, and the conveyance delivered on the 2d of April, 1812. The conveyance refers to the patent, — describes its boundaries, and is a conveyance of two hundred and twenty-five acres, be the same more or less. In 1823, it appears, on actual measurement it was found short twenty-acres and ninety perches. The deficiency is in the patented tract. These instruments afford no ground for saying, that the contract was to sell by the acre, as it should be ascertained afterwards by admeasurement. The description was by boundaries: the quantity mentioned is the exact number of acres mentioned in the official surveys to which it referred, and by the acceptance of the conveyance, the parties themselves put their own construction on it. The vendee could hold all the surplus lands within the boundaries without paying for it. I cannot see the equity, in his demanding a deduction because he does not get the estimated quantity. The equity should be equal. It is not a sound rule in equity, unless it will work both ways. Reciprocity is the true measure of justices I cannot discover the slightest shade of difference between this case and Boar v. Moore’s Administrators, 1 Serg. & Rawle, 167. In that case, the plantation had been long settled, — the difference much greater. The deed referred, as here, to the origina! survey and conveyance, by which the title was conveyed to Moore. So the sale here was made with reference to the patent and conveyances to Frederick: the description was by boundaries; the purchase money a round sum, — sixteen hundred pounds. There was no mistake in the lines. The courses in the patent corresponded with the marks on the ground. If the deficiency arose from the mistake in the line and the value was estimated under the mistake of the boundaries, this would be a ground for relief, because the party did not get all within the boundaries, unless there is an express agreement to run the risk. 1 Munf. 330.

More or less, in a conveyance, sometimes will extend only to a small difference, sometimes leaves the quantity altogether indeterminate. It is common experience, that official surveys .generally overrun the quantity, and it is usual where lands are not sold by the estimated quantity in the survey, but by the measured acre, to provide for the admeasurement, and not to pay, or give bonds for payment, or to take a conveyance until that admeasurement is made: and where there is not such provision, and the official surveys are referred to, and a conveyance, according to the courses, distances and boundaries of the survey accepted and bonds given, I do not think in a common case, where the vendor could not recover for the excess, that the vendee is entitled to an allowance for the deficiency. For, in that ease, though the sale were even by the aere, I would consider' the vendee as agreeing to take it by the survey as fixing the quantity; and, where there is no fraud or concealment, that he is not entitled to any deduction. 6 Munf. 188. If fraud or deception had been used, or a concealment, the ease would have been different. Here there was ignorance on both sides down to 1823. If there had been any circumstance to have shown Frederick’s knowledge of the deficiency, the deduction ought to have been made. If the deficiency had been great in an improved farm, where a great part had been cultivated, this would be a circumstance from which the knowledge might have been inferred by the jury, and there might be extreme cases, where a court of chancery would grant relief, evidencing, ex natura rei, a misapprehension, where the deficiency would be so great, as at the first glance every man must say, there must have been a gross misapprehension or fraud. But this is a very different case. There is nothing in the writings to show that the parties intended any thing else than the sale of an entire tract, a plantation, for an entire sum, namely, sixteen hundred dollars; and the deficiency, considered singly, is not so great as to induce a chancellor to grant relief, on the principle of failure of the consideration. There is no covenant that the quantity of lands shall equal the quantity mentioned in the patent, either in express terms or by implication. The case of Large v. Penn, (6 Serg. & Rawle, 488,) was much stronger than this. There the covenant was, that the vendor bargained and sold a certain piece of land, contained within certain metes and bounds, and stated the quantity was two acres and three quarters, whereas there was in fact but one acre and one hundred and forty-eight perches, but described it as the lot mentioned in the plan or map of the estate of Mr. Masters, (18 R. M. Penn.) Held, to be no implied covenant, that the land should equal the quantity mentioned in the deed. The description was by natural boundaries, by reference to the map, and by quantity. “ Quantity,” said the court, “ was the least certain of this triple description. The quantity is matter of calculation, and must yield to the others: be it more or less, it passes. There is neither an express or implied covenant, because the property is not introduced by way of covenant, but by way of description.” So, here, the sale was first made by reference to the conveyances under which the plaintiff held the land. Secondly, to boundaries. Thirdly, to quantity. What- might have been the effect of parol evidence, as to what took plaee at the time the conveyance was accepted and bonds given; whether it established the fact, that Frederick then declared he would warrant and defend the land to eontain two hundred and twenty-two. acres; that on the faith of that engagement the bonds were given, — was matter for the jury. But the court, considering that testimony so contradictory and dubious, that the jury might find it difficult to reconcile it, very propei’ly decided, that in that case recurrence must be had to the writings, and gave an opinion on the construction of the articles and deed, which, for the reasons I have stated, appears to me to have been erroneous.

But there was no error in admitting the evidence. It did not contradict the conveyance. It went to show, that the conveyance was not unconditionally accepted, nor the bonds given, but on condition the surveys contained two hundred and twenty-five acres. It was evidence to show the real design and views of the parties. It did not go to restrain and narrow the conveyance. It is a case, where the operation of the words “more or less,” is not so absolutely conclusive in itself, but that circumstances would give them different effects; the acts of the parties putting their own construction on their own contracts. I confine the evidence to what passed at the time of the conveyance accepted and giving the bonds. I confine them to that time, and to that subject matter, the condition on which the conveyance was accepted. The defendant might have proved the mode, manner, and conditions on which he took the conveyance. It was, in fact, a part of the resgestse, necessary to show the real character and design of the transaction; This ffomnovts with the s'U'ri-' »*.f the dccisicto in. Christ v. Deve baugh, 1 Serg. & Rawle, 446. I never would yield my assent to carry the principle of receiving parol evidence further than that case. It went to the very verge and limits which should' circumscribe the reception of parol evidence. But the judgment is reversed for the error of the court in the legal construction of the written instruments, and a venire facias de novo awarded.  