
    Faure v. Martin.
    
      Vendor and purchaser. — Deficiency in quantity.
    
    Where a vendor of land accepts a deed, describing the premises, in the words of the contract, as containing a certain number of acres, “be the same more or less,” he is not entitled to a deduction from the purchase-money, on account of any deficiency in the quantity of land conveyed.
    Faure v. Martin, 13 Barb. 394, affirmed.
    Appeal from the general term of the Supreme Court, in the second district, where a judgment of nonsuit had been affirmed. (Reported below, 13 Barb. 394.)
    This was an equitable action to stay the foreclosure of a mortgage given by the plaintiff for a balance of the consideration-money of a farm purchased from the defendant, as special guardian of Beattie Martin, an infant, on the ground of a mistake in the quantity of land upon which the price was computed.
    *On the 11th September 1846, Catharine Mar- _ vin, the defendant, who was the widow of Jacob  Martin, deceased, and general guardian of Beattie Martin, his daughter and sole heir, then an infant, contracted to sell the farm on which she resided, and of which the said Jacob Martin died seised, to John F. Faure, acting as agent for his mother, Margaret Faure, the plaintiff, describing it as “containing ninety-six acres, be the same more or less,” for the sum of $60 per acre. The defendant, thereupon, obtained an order of the supreme court, on the 27th March 1847, authorizing her, on behalf of the infant, to make sale of the premises to the plaintiff, in pursuance of such agreement.
    On the 1st April 1847, the defendant, Catharine Martin, by deed, conveyed the farm to the plaintiff, Margaret Faure, describing it as “ all that certain piece or parcel of land which, in and by a deed of conveyance thereof, from Edward Radcliff, executor, &c., of Gertrude Van Hess, deceased, to the said Jacob Martin, bearing date the 15th day of March in the year 1839, is described, as all that certain farm of land, now in possession of the said party of the second part, lying in the town of Red Hook, and further described as follows, viz., beginning on the west side of the post-road, at the northeast corner of Claudius Martin’s garden, running thence northerly along the said post-road to the road leading from the post-road to the grist-mill belonging to Henry Staats, thence westerly along said road to the land of William Mac Gee, thence along the land of the said William Mac Gee westerly to the creek called the Sawkill, thence southerly along said creek to the land of Tobias Teller, thence easterly along the land of the *said Teller and land now in the possession J of Claudius Martin, to the place of beginning, containing ninety-six acres, more or less.” Radcliff’s deed to the defendant’s deceased husband described the farm as containing 94 acres, more or less; the complaint alleged that it contained but 86 acres of land.
    At the time of the execution of the deed, the plaintiff paid the whole of the purchase-money in cash, with the exception of a sum of $1100, for which she gave the mortgage in question payable in one year from that date, with interest at six per cent.
    The complaint alleged, that the defendant, “falsely, fraudulently, and with knowledge of the facts, inserted or caused to be inserted in the deed, a larger number of acres than is contained in the farm, and procured the payment of and security for a larger sum of the purchase-money of said farm, than was agreed to be given for it by the articles of agreement” above mentioned; and that the plaintiff had tendered to the defendant the whole amount that would be due upon the mortgage, computing the purchase price at sixty dollars per acre for the true quantity of land contained in the farm. These allegations were denied by the answer.
    On the trial, before Basculo, J., the plaintiff, after giving in evidence the agreement, and the deed made in execution thereof, offered to prove a tender of a sufficient sum to satisfy the mortgage, after deducting $600, the difference in price between 86 and 96 acres, and a refusal to enter satisfaction on payment thereof; that the farm, by actual survey, contained only 86 acres, which was unknown to the plaintiff, until after the execution of the deed and mortgage; that the defendant fraudulently concealed such fact from the plaintiff; and that she fraudulently represented the farm to contain 96 acres, knowing from surveys, and title deeds in her possession, unknown to the plaintiff, that it contained but 86 acres.
    The learned judge overruled each of these offers, and ruled that, under the pleadings, no. evidence was admissible of fraud or mistake in the quantity of land contained in the farm; that the sale was one in bulk, and not by the acre, and the plaintiff was not entitled to any allowance for deficiency in the ^quantity of land conveyed; and he, therefore, nonsuited the *- plaintiff, to which the latter excepted; and the nonsuit having been sustained at general term, this appeal was taken.
    
      Elseffer, for the appellant.
    
      Hogeboom, for the respondent.
    
      
       There was no dissent in this case; nevertheless, it was strongly questioned, if not overruled, in Wilson v. Randall, 67 N. Y. 338, where the court say, “ we are not fully satisfied that it was the true interpretation of the agreement.” In Belknap v. Sealy, 14 N. Y. 153, Comstock, J., says, the case was decided, on the ground that the complaint alleged neither mistake nor fraud in the agreement, leaving the question purely one of construction. The proof offered was rejected, distinctly on the ground that it was inadmissible under the pleadings, and on that ground the cause was decided.
    
   *Gaedinee, J.

The only question presented in this cause is, upon the construction of the *- agreement of the 11th of September 1846, made by the parties, for the sale and purchase of the premises mentioned in the pleadings. The land is there described as all that certain farm or lot of land now in her (the defendant’s) possession, and whereon she resides, and whereof Jacob Martin died seised, containing ninety-six acres, be the same more or lessthis is the whole description. The succeeding clause, “for the sum of sixty dollars per acre,” &c., relates only to the consideration to be paid by the purchaser. In looking at this description, without reference to extrinsic facts, it is obvious, that the number of acres was not relied upon by the parties, as indicating the absolute, but only the proximate and probable, quantity of the land. The phrase be the same more or less,” shows uncertainty as to the precise quantity, and that neither the vendor nor vendee intended that the sale should be defeated, because the true number of acres exceeded or fell short of the number estimated. (Rawle on Covenants for Title 258, 259, and cases cited.) The phrase is, therefore, sensible and pertinent, in the connection in which it stands, and cannot be rejected as surplusage.

What, then, was the land purchased by the plaintiff, as defined by this contract ? The answer is furnished by the first part of the description above quoted; it was, the premises in the possession and upon which the defendant resided, and of which her husband, Jacob Martin, had died seised. There is nothing ambiguous in this description; for aught that appears, the possession of the defendant was open, definite and notorious. There is no allegation in the pleadings, nor pretence anywhere, that the -parties did not understand what land was designated by the description. The deed subsequently *executed and which specified the limits -J of the property, was accepted by the vendee, without any objection that it did not, in this respect, conform to the previous agreement and understanding of both parties. Indeed, the vendor and vendee have never differed as to the boundaries of the premises, but only as to the quantity of land embraced in them. The defendant, therefore, was bound to execute, and the plaintiff to accept, a conveyance of the land within the limits assigned by the agreement. If this is the fair construction of the contract, it substantially disposes of the question under consideration.

The vendee agreed “ to pay the sum of sixty dollars per acre for the premises.” This covenant must refer to the estimated number of acres previously mentioned, because this was the only data furnished by the contract for a computation of the consideration-money. In the language of the contract, the vendee was “ to pay the purchase-money, on receiving a deed.” But what amount ? The agreement implies, that the obligations of the respective parties are there defined. The vendor, as we have seen, would discharge himself by a conveyance, excluding all mention of quantity, but conforming in other' respects to the description in the contract; the vendee was to pay or secure the whole purchase-money. No previous act was to be done, no survey was to be made, and if the plaintiff had entered upon the premises with a view to ascertain the quantity by actual measurement, he would have subjected himself to an action of trespass. It is sufficient to say, however, that there is no covenant, express or implied, upon the vendor, as to quantity, nor any stipulation that the number of acres should be ascertained by the joint or separate action of the parties, or either of them. It follows, that the vendee must ascertain the amount of the consideration from the number of acres estimated in the agreement, and not otherwise. The parties have constantly acted upon this assumption; no survey was made, nor any overtures to that effect, by any one. The deed was accepted, the purchase-money paid and secured upon this basis; and the deficiency which is now the subject of complaint was not, according to the allegation of the plaintiff, * 217 1 ascer*a*ne(^ until some time ^subsequently; this view disposes of the case. It is not claimed, that the original agreement was procured hyKfraud, misrepresentation or mistake. The right of the parties was then established ; and although the defendant, subsequently, and when the deed was executed, falsely, fraudulently and with knowledge of the fact, inserted in the deed a larger number of acres than was contained in said farm,” it would not affect the plaintiff injuriously. The result of the matter would be, that the parties in good faith entered into an agreement, which the defendant subsequently fulfilled according to the letter and spirit. Fraud in any sense cannot be affirmed of such a transaction, whatever might be the motive of the vendor in complying with her covenant. The evidence offered was, therefore, properly rejected as immaterial, and the judgment, for the reasons suggested, should be affirmed.

Edmonds, J.

On the 11th September 1846, an agreement was entered into between these parties for the sale of a farm by the defendant to the plaintiff. On the 1st of April 1847, the agreement was consummated by a deed which particularly described the premises, the description ending with the words, “containing ninety-six acres more or less.” This is all that the deed contains as to the quantity, but the agreement says “ containing ninety-six acres, be the same more or less, for the sum of $60 per acre.” Upon the execution of the deed, a mortgage was given for $1100 of the purchase-money, which was not paid when it became due, and the defendant proceeded to foreclose it under the statute. The plaintiff then alleged that the premises did not contain ninety-six acres, but only eighty-six acres, and brought this suit to obtain a deduction on the mortgage of $60 the acre, for the deficient ten acres.

There is no allegation in the complaint, that there was any fraud as to the quantity, but simply that the defendant represented there were ninety-six acres, and the plaintiff believed that it was so, and bought accordingly. On the trial, there were several offers made to prove fraud on the part of the defendant, but the evidence was excluded and *the court ruled, that under the ^ ^ pleadings, no evidence could be received of fraud *- or mistake in respect to the quantity, that the sale was in bulk and not by the acre, and that the plaintiff was not entitled to any allowance for a deficiency in the quantity.

It does not appear from the case, what was the judgment rendered at the circuit, though from the foregoing statements of the ruling there, it may be inferred what it was. At the general term, it was simply denying a motion for a new trial.

The consideration mentioned in the deed was $5760, or equal to $60 an acre for ninety-six acres.

The ruling as to the evidence of fraud was clearly right, because there was no allegation of fraud in the complaint, and it would have been improper to allow the plaintiff to have enlarged, by evidence offered on the trial, the cause of action as she had chosen to set it out in her pleadings. And the whole question is, whether, even if there was a- mistake as to the quantity, it can now be corrected.

I agree with the learned judge who presided at the circuit, in the opinion, that the sale was one in bulk and not by the acre. There is no covenant or agreement anywhere that the premises do or shall contain any specific quantity. In both the agreement and the deed, the quantity is stated indefinitely “ninety-six acres, more or less.” And in both, the farm is described as a whole, as having been bought of a particular person, as in the possession of the defendant, and as bounded by the lands of others who are named. And whether the farm contained more or less than the quantity named, all of it passed as it had thus been bought and occupied and bounded. Such, it appears to me, was clearly the intention of the parties, as it is to be gathered from their written contract, and the purchaser was to take the risk whether the quantity fell short or run over. But even if it were otherwise, and even if both parties honestly made a mistake as to the quantity, it is not such an error as the courts can relieve against.

In actions at law, the suggestions of a mistake were never listened to as a defence in regard to a contract explicit in its terms. But in equity it was otherwise, and * 219 1 re^e^ agains* mistakes *was one ground of equi- -* table jurisdiction. But even there, the relief would not be granted, unless the mistake was as palpable as, if admitted, and was so great, as to produce the conviction, that the contract, but* for the mistake, never would have been made, and being made, was entirely different from what was intended. And it was an essential ingredient to any relief under this head, that it should be on an accident perfectly distinct from the sense of the instrument (per Lord Thurlow, 1 Bro. 350; Gillespie v. Moon, 2 Johns. Ch. 596; see also 2 Kent’s Com. 491; 5 ed., note c ; Story Eq. §§ 121 to 194).

These principles, which are well established, are directly in the way of affording to the plaintiff the relief she seeks. But we are not without authority as to their application to a case like the present. In Marvin v. Bennett (24 Wend. 169), application was made for relief on the ground of a mistake in the quantity. Gardiner, vice-chancellor, the chancellor, and the court for the correction of errors, all denied this relief, on the ground that where a lot or farm is sold in gross, and conveyed by a deed containing the words “more or less,” such words being inserted upon deliberation, because neither party professed to know the precise quantity contained within the boundaries of the deed, no court ought to interfere to make a new contract for the parties, which they did not think proper to make for themselves. In Veeder v. Fonda (3 Paige 98), the chancellor, after alluding to the conflict in the American courts on this subject, says, “it seems now to be generally understood, that where the contract has been consummated, without fraud, misrepresentation or concealment as to the real quantity, the courts will not inquire whether there has been a mutual mistake as to the supposed quantity contained within certain specified boundaries.”

I think, these cases were determined upon just principles, and, therefore, I am of opinion, that the ruling in this case at the circuit was correct, and the judgment ought to be affirmed.

Judgment affirmed.  