
    Hodges v. Denny.
    
      Bill in Equity to enforce Vendor's Lien on Land.
    
    1. Competency of purchaser to testify as to transactions with deceased vendor. — In. a siiit to enforce a vendor’s lien on land, brought by an assignee of the note given for the purchase-money, the purchaser can not (Code, § 2765) testify as to any transactions between himself and the deceased vendor.
    2. Abatement of purchase-money; description of lands in bond or conveyance. — On a sale of a specific tract of land, which is designated according to the government survey, or described by certain and definite boundaries, natural or artificial metes and bounds, or courses and distances open to observation and not subject to mistake,' superadded words stating the quantity are regarded as a part of the description, and not as of the essence of the contract; parol evidence can not be received, in the absence of'fraud, or of gross and palpable mistake, to contradict or vary the writing; nor can the purchaser claim an abatement of the purchase-money, on account of a deficiency in the quantity of the land. But, when the sale is by the acre, and the land is not described by definite and certain boundaries, the statement of the number of acres is of the essence of the contract; the superadded words “more or less,” following the description, refer only to a reasonable margin for errors of survey, variations in instruments, or in estimates of the parties; and the purchaser is entitled to an abatement of the purchase-money, if the deficiency exceeds this reasonable allowance.
    3. Same; case at bar. — On a sale of a tract of land consisting of two parcels, one containing 25 acres, and described by metes and bounds, and the other described as follows: “All of the land lying on the north side of the [public] road, and four acres on the south side of said road, containing in all 82 acres, more or less; said land off of the northwest quarter of the south half of section 13, and a part off of the west end of the south half ot section 12;” these words are of the essence of the contract, and not merely descriptive, and the purchaser is entitled to .an abatement of the purchase-money, on proof of a deficiency of twenty acres or more in the quantity of the land. r
    
    Appeal from the Chancery Court of Chambers.
    Heard before the Hon. S. K. MoSpadden.
    The bill in this case was filed on the 14th September, 1886, by William S. Denny, against C. C. Hodges, and against the administrator, children and heirs at law of John O. Pearson, deceased; and sought to enforce a vendor’s lien on a tract of land, for the balance of purchase-money unpaid, as evidenced by the two promissory notes of said Hodges, which the complainant held by transfer and assignment from said Pearson. The contract of sale was made on the 27th September, 1883, the agreed price of the land, as stated in tbe bond for title, being $1,632; of wbicb sum, $432 was to be paid (and was paid) on tbe 25th December, 1883, and tbe two notes held by tbe complainant were taken for tbe residue, payable on tbe 25th December, 1884 and 1885, respectively, to said Pearson or bearer. Tbe land was thus described in said Pearson’s bond for title: “A certain tract of land, to-wit: all tbe land lying on tbe north side of Denny’s Ferry and Bock Mills road, and four acres on tbe south side of said road, containing in all eighty-two acres, more or less; said land off of tbe N. "W. of tbe S. of section 13, and a part off of the west end of S. -g of section 12, in township 24, range 25; and 25 acres, more or less, bounded as follows:” A cross-bill was filed by Hodges, claiming an abatement of tbe purchase money, on account of an alleged deficiency in tbe quantity of land. A guardian ad litem was appointed for Pearson’s children, who filed a formal answer for them; and an answer and disclaimer was filed by bis administrator, alleging tbe insolvency of bis estate. Tbe record does not show any ruling. by tbe chancellor on tbe claim set up in tbe cross-bill; but, on final bearing on pleadings and proof, be rendered a decree for tbe complainant for $785.17, as tbe balance due on bis notes, with interest; and this decree is now assigned as error by Hodges, with tbe chancellor’s ruling suppressing bis testimony as to tbe transactions between him and said Pearson connected with tbe contract.
    J. M. & E. M. Oliver, for appellant,
    cited Spence v. Mitchell, 9 Ala. 744; Tatum v. Manning, 9 Ala. 144; Babcock v. Huntington, 9 Ala.'869; Fontaine v. Helton, 80 Ala. 528; Rogers v. Peebles, 72 Ala. 529; Minge v. Smith, 1 Ala. 415; Terrell v. Kirksey, 14 Ala. 209; Winston v. Browning, 61 Ala. 80; Young v. Craig, 2 Bibb, 270; Bellv. Thompson, 34 Ala. 633.
    N. D. Denson, contra,
    
    cited Code, § 2765; Coodlett v. Kelly, 74 Ala. 213; Dozier v. Duffle, 1 Ala. 320; Frederick v. Youngblood, 19 Ala. 680; Wright v. Wright, 34 Ala. 194; Winston v. Browning, 61 Ala. 80; Broughton v. Mitchell, 64 Ala. 210; Pettus v. McKinney, 74 Ala. 108; Broion v. Freeman, 79 Ala. 406; 13 Wall. 379.
   CLOPTON J.

In a suit by a transferree of a promissory note, against tbe personal representative of the.maker, the transferror is not a competent witness, on the .part of the transferees, as to any transaction with, or statement by tbe deceased maker. A transfer of tbe subject-matter of tbe suit does not operate to take the living party out of tbe exception to tbe statute rendering parties competent witnesses. Mutuality in its operation is tbe policy and purpose of tbe statute. Its provisions exclude tbe living from testifying to any transaction between bimself and tbe dead, in all cases where tbe effect of tbe evidence is to diminish tbe rights of tbe deceased, ©r those claiming under him, and where tbe presumption exists, that tbe dead, if living, could explain, qualify, or contradict. Any other construction of tbe statute would tend to introduce tbe corrupting influences in tbe administration of tbe law, which it is tbe design of tbe exception to prevent. Tbe vendor, who transferred to the complainant tbe purchase-money notes, having died, tbe defendant, who is tbe vendee, comes within tbe spirit and policy of tbe statute. Tbe chancellor did not err in excluding bis testimony as to transactions and statements between bimself and tbe deceased vendor. — Boykin v. Smith, 65 Ala. 294; Miller v. Cannon, 84 Ala. 59.

Appellee seeks by the bill to charge a vendor’s lien on land sold to defendant by J. C. Pearson. Tbe defendant seeks, by cross-bill, an abatement of tbe amount agreed to be paid, on account of an alleged deficiency in tbe quantity of tbe land, alleging that it was sold, and the gross sum of tbe purchase-money ascertained, by tbe price per acre, and that Pearson misrepresented tbe number of acres. Defendant’s right to abatement materially and mainly depends on tbe interpretation of tbe contract, as shown by tbe bond for title — whether tbe phrase contained therein, stating tbe number of acres, is merely descriptive, or a distinct averment or stipulation as to tbe quantity.

Contracts for tbe sale of land consist generally of two classes — a sale of a specific tract, described by metes and bounds, and a sale of a specified quantity — a sale in gross, and a sale by tbe acre. When, in a conveyance, tbe land is described by certain and definite boundaries, in tbe absence of fraud, or gross and palpable mistake, such description is ordinarily regarded as conclusive; and when followed by a representation of quantity, such representation is considered as cumulative description. As to contracts of tbe first class, this rule has been placed beyond tbe pale of further discussion tbe decisions of this court. It has been affirmed, that when land is described in a bond or deed by well-defined boundaries, such as by its designation according to the government survey, or by natural or artificial metes and bounds, or courses and distances, open to observation and not subject to mistake, a statement o£ quantity, following the description, is regarded a part of the description, and not of the essence of the contract. By such sale, both parties take upon themselves the risk as to quantity. The purchaser is entitled to all the land included in the tract specifically described, though greater than the quantity stated, and the vendor is not liable if there be a deficiency. In such case, in the absence of fraud, or gross and palpable mistake, or an omission to truly express the contract, parol proof, varying or contradicting the terms of the conveyance, is inadmissible, even in equity.— Wright v. Wright, 34 Ala. 194; Carter v. Beck, 40 Ala. 599; Rogers v. Peebles, 72 Ala. 529; Hess v. Cheney, 83 Ala. 251.

But this rule has no application to contracts of the second class. A different rule governs, when it is apparent from the conveyance that the land is not described by definite and certain boundaries, which furnish the standard of quantity; and the representation of the number of acres is an essential ingredient of the contract, regulating the aggregate sum to be paid. In such case, if there be a material and substantial variance, equity will place the parties in the same relative condition in which they would have stood, had the real quantity been known at the time of the bargain.— Winston Browning, 61 Ala. 80; Harrison v. Talbot, 2 Dana, 258. Whether the statement of the quantity in a bond or deed shall be regarded as descriptive, or of the essence of the contract, largely depends upon the manner of .its use and its connection with other descriptive parts.

The foregoing principles are of easy application to the sale shown by the bond in question. There is an evident misdescription as to the numbers of the sections, and in other respects. But this is immaterial, as it does not, and can not, affect the interpretation of the bond as to the matter under consideration. The land sold consists of two parcels, as to one of which there is no controversy. We shall confine our consideration to the parcel in which it is alleged the deficiency occurs. As to this, the language of the descriptive part of the bond is, “all the land lying on the north side of Denny’s Ferry and Bock Mills road, and four acres on the south sid6 of said road, containing in all eighty two acres, more or less; said land off of the N. W. ¿ of the S. of section 13, and a part off of the west end of S. of section 12, in township 21, range 25.” It is apparent that the contract is not a sale of a specific tract, described by definite and certain boundaries, to which the representation of the number of acres can be superadded as a part of the description. By the express terms of the bond, the vendor sold, and the defendant bought, eighty-two acres more or less, four of them lying south, and the balance north of the public road. It constitutes parts of sub-divisions of sections, the area of 'which includes more land than the quantity sold, and no data are furnished, from which to ascertain the particular part of the sub-divisions. The boundary of neither side is given; and the only means of determining the quantity sold is the representation contained in the bond.

Stress, however, is laid on the words, more or less, as qualifying the representation of quantity, and showing that the parties did not regard it as of the- essence of the contract. In Dozier v. Duffie, 1 Ala. 320, it is said: “The words, more or less, though not decisive, of themselves, to show that there was no stipulation by the vendor as to the quantity, yet, taken in connection with the rest of the deed, become very expressive of its true meaning.” Andin Frederick v. Youngblood, 19 Ala. 680, it is said: “We think that the obvious common-sense meaning of the words in the deed, ‘be the same more or less,’ is, that the parties should run the risk of gain or loss, and if the quantity prove greater or less than the quantity sold, the parties should abide by their bargain.” In each of these cases, the land was described by its designation according to the government surveys. Of the effect and meaning of such or .equivalent words, different courts have entertained different views. We have no hesitation in saying, that when the land is described by metes and bounds, as constituting a specific tract, such description preceding a statement of the quantity, the words, more or less, or equivalent words, qualify and restrain the representation of quantity, and show that the parties did not regard the number of acres stated as an essential ingredient of the contract, but merely descriptive. When, however, the saléis by the quantity, and not as a specific tract, the words, more or less, do not qualify and restrain to such an extent. They are ordinarily understood and intended to meet any small variance in the estimated and represented quantity, and restrain the representation “to a reasonable or usual allowance for small errors in surveys, or for variations in instruments,” or as estimated by tbe parties. And if tbe deficiency be relatively large, equity will allow tbe purchaser a corresponding abatement of the purchase-money. — Terrell v. Kirksey, 14 Ala. 209; Couse v. Boyles, 4 N. J. Eq. 214; Quesnel v. Woodlief, 2 Hen. & Munf. 173, note.

The bond showing only a sale of a specific quantity of land, it follows from the foregoing principles, that the words, “containing in all eighty-two acres, more or less,” is an averment or representation as to quantity, qualified and restrained as we have above stated. Such being the nature of the sale, and of the bond, parol evidence that the sale was in fact by the acre, and that the parties adopted this mode to fix the aggregate price, does not vary or contradict its written terms. .It only tends to prove either fraud, or gross and palpable mistake. Both the bond and the parol proof show that by the representation, and in the contemplation of the parties, the quantity of the whole land sold was about one hundred and seven acres. The evidence tends to show that there was a deficiency of about twenty-five acres. We will not say that actual fraud is proved; for it seems that the vendor himself purchased the land as containing the same number of acres, and therefore may have made the representation in good faith. The only living witness, who is competent, and is unimpeached, testifies that the sale was by the acre, and that the vendor represented that there were one hundred and five, or one hundred and eight acres. The defendant had a right to rely, and the reasonable inference is, did rely on this representation. A deficiency so relatively large shows a gross and palpable mistake — so gross and palpable, that equity should compensate the purchaser. — Sugden on Yendors, 382. We are not satisfied with the survey that was made showing the extent of the deficiency; and consequently will remand the cause, that the Chancery Court may, by reference to the register, satisfactorily ascertain the amount which should be deducted, and cause, if deemed necessary, another survey, in order that a correct result may be obtained.

Eeversed and remanded.  