
    Wytherville
    Yost v. Mallicote’s Adm’r.
    July 26th, 1883.
    1. Equitable Jurisdiction and, Relief-Vendor and vendee.-If in sale of land at gross price upon estimate of quantity influencing price, mistake occurs, which, if understood, would probably have prevented sale, or varied its terms, equity will afford relief.
    2. Idem-Contract of hazard-Sale in gross-Mistake.-A sale in gross, quoad thing sold, means a sale without regard to quantity, and is in that sense a “ contract of hazard.” In such case there is no ground for relief. The mistake of the parties is the true ground of relief.
    3. Idem-Compensation-Exception.-In case for relief, the general rule of compensation is according to the average value of the whole tract, except where peculiar circumstances require a departure therefrom.
    4. Idem-Mistake-Deficiency-Compensation-Case at bar.-Y. bought of M. land represented by vendor to contain two hundred and forty acres, at $5,000, took possession, made cash payment, and executed bonds for deferred payments. When judgment on these bonds was about to be enforced, Y. surveyed the land, and discovered deficiency of seventy-five acres, which, by mutual mistake, was unknown at time of sale. Vendor told vendee the tract certainly contained two hundred and forty, and probably two hundred and fifty acres, and that he should have twenty dollars an acre. On the land were a frame dwelling, the usuaí outhouses, &c., estimated as worth $2,271.
    Held:
    1. Y. is entitled to an abatement from the price of the land ($5,000) of the amount obtained by multiplying the deficiency, seventy-five acres, by the price per acre ($20) as of the date of the sale.
    2. There are no exceptional circumstances which require a departure from the general rule of compensation, and here the value of the improvements must not be considered. The case is unlike that of Watson v. Hoy, 28 Gratt. 698.
    
      Appeal from decree of circuit court of Washington county, rendered 13th May, 1882, in suit of Lewis M. Yost against J. J. G-eisler, administrator of J. N. Mallicote, deceased.
    In August, 1877, Mallicote sold to Yost, at the price of $5,000, a tract of land in said county, which the vendor represented as containing certainly two hundred and forty, and probably two hundred and fifty acres, and for which, he said, he ought to have had at least twenty dollars per acre. The land was conveyed, the cash payment made, bonds executed for deferred payments, and possession given. Judgment had on those bonds was about to be enforced, when, by actual survey, Yost discovered that the tract contained only one hundred and sixty-five acres. Thereupon he brought in said circuit court his bill, stating the facts aforesaid, and that the estimation of the tract, as containing two hundred and fifty acres, was a mutual mistake of the vendor and the vendee, hut had influenced the latter to make the purchase at the price of $5,000, and that he was entitled to an abatement of purchase money at the rate of twenty dollars an acre for the deficit in quantity as of the day of vsale. Dr. Mallicote having died since the sale, his administrator demurred to the hill and answered, denying that there had been any mistake between the vendor and vendee as to the quantity, and asserting that the sale was not a sale of any particular quantity, or a sale by the acre, but only a sale of the boundary; that no specific quantity had been mentioned in the conveyance, and that the vendor had fitted up the place as a home with improvements, costing not less than $3,000. Numerous depositions were taken. An account decreed and had, of the value of the improvements, fixed it at $2,271. The circuit court decreed that Yost was entitled to $852.75 as compensation for the deficiency, estimated by deducting from the price the value of the improvements, and taking the remainder as the price of the land, and two hundred and forty as the number of acres, the price per acre ascertained thus multiplied by the deficit, giving the amount allowed Yost as compensation. Neither party was satisfied with, this decree, and from it Yost obtained an appeal from one of the judges of this court.
    
      John A. Campbell, for appellant.
    
      Daniel Trigg, for appellee.
    Yost bought from Mallicote, “ all of his right, title, claim and interest, in and to the tract of land, devised to the above named Mallicote; less about thirty-one acres thereof, sold by the said Mallicote to John Thompson.”
    For a full description of the land sold, the appellant was referred to “a plat thereof, made by Leonidas Baugh, and known as share No 1, and recorded in will book No 18.”
    And it was expressed in the deed, that “ with said will is a description of said land.”
    There is nothing said in this deed as to quantity.
    The stipulated price is a sum in gross.
    The deed refers to a plat, by which the vendee may see what lie has bought.
    The metes and bounds of the land are referred to.
    From this deed it is plain that Mallicote intended to sell his farm for $5,000, and Yost agreed to give that for it.
    He took possession without a survey.
    The principle upon which equity gives relief, in cases of deficiency or excess in the estimated quantity, upon the sale of lands, is that of mistake. The mistake must be mutual, or the nmistake of one of the parties must be occasioned bythe fraud or culpable negligence of the other. Blessing’s adm’r v. Beatty, 1 Rob. 298.
    There is no evidence in this record of a mutual mistake.
    It is not pretended that there was fraud.
    Even if Mallicote thought that he had two hundred and forty or two hundred and fifty acres of land, there is no proof that he ever made such representation to Yost.
    
      Here, the counsel discusses the evidence on the said point, and having discussed it, proceeded:
    The fact that no reference to quantity was made in the deed, rehuts the presumption, which generally prevails, of a sale by the acre, and this presumption being rebutted, it devolved upon the appellant to show conclusively that a sale in gross was not the contract.
    • It is believed that in all the cases cited by appellant there was reference to quantity in the contract, and therein they differ from the case at 'bar.
    Yost’s conduct, with regard to this case, has been such that he should he held to have waived any claim to abatement.
    1. He took possession after Mallicote’s death, without investigating whether the quantity of land, which he claims to have bought, was there or not. Fludyer v. Cocker, 12 Ves. 27.
    2. He was referred to a plat of the land, and does not now say that all the land he contracted for is not within the bounds of that plat. Weaver v. Carter, 10 Leigh, 47; Fleet v. Hawkins, 6 Munf. 188.
    3. He was referred to the metes and hounds by which Mallicote claimed, and by which he intended to sell, and he ignores this altogether. Voorhees v. DeMeyer, 2 Barb, page 32.
    4. He permits judgments to be entered for the purchase money, and gives forthcoming bonds, without any reference to an abatement.
    The appellee claims that the decree of the circuit court was erroneous in allowing any abatement of the purchase money whatever, and that the same should be reversed.
    Under rule nine of this court the appellee claims that the whole case may be reviewed. 20 Gratt. 25. Walker’s Ex’r v. Page, 21 Gratt. 652 ; Hull v. Strother, 23 Gratt.
    If this was a case proper for an abatement at all (which the appellee denies) then the circuit court has applied the proper rule, and the appellant is not prejudiced. Watson v. Hoy et als., 28 Gratt. 698; Hoback v. Kilgore, 26 Grat. 442.
    
      The buildings upon the land are valuable, valued at $2,271, and their value must have entered largely into the price agreed to be paid for the entire estate. These are retained by the purchaser ; and, therefore, in finding the amount of the abatement, their relative value should be deducted from the contract price, $5,000, for the whole estate, and from the sum remaining, after the deduction, the average price per acre, of the estimated quantity of all the land should be ascertained. Watson v. Hoy, supra.
    
    The deed in this case contains the contract between the parties, and is the best evidence of what it was. Bouv. Law Die., Tit. “Deed;” Sheppard’s Touch., page 50.
   Lacy, J.,

delivered the opinion of the court.

The .only question here before this court is what is the true measure of compensation for the deficiency in quantity of the land. The circuit court adopted the following method of ascertaining the compensation to be paid for the loss : ■

“ This is ascertained by estimating the value of the buildings on the premises at the date of the contract, and subtracting this value from the $5,000, contract price, and then estimating the price per acre, supposing the tract to contain two hundred and forty acres, based upon the balance of the contract price after deducting the value of the buildings. The real loss will be the product of the number of acres deficient, into this average price for the land;” and declares that this mode is warranted by Hoback v. Kilgore, 26 Gratt., and Watson v. Hoy, 28 Gratt.

In the last named case the judge who delivered the opinion of the court says:

“ Being of opinion, for the reasons stated, that the appellant was entitled to a proper abatement of the balance of the purchase money owing by him for the deficiency of thirty-four and one-half acres in the quantity of land bought by him, and consequently that the court below erred in dismissing his petition, it only remains to consider what should be allowed him by way of abatement. The rule of compensation or abatement, is according to the average value per acre of the whole tract, unless particular circumstances require. a departure from that rule.” Citing Blessing v. Beatty, a case from the same county of "Washington, from which this appeal comes, decided in 1830. The rule there laid down is taken from the last named case, which is reported in Eob. E. vol. 1, 305, and is the correct rule, as will be seen by an inspection of all the reported cases bearing on this subject which are cited in the opinion in Watson v. Hoy, supra.

The essential difference between this rule and the rule laid down by tbe circuit court is obvious. The circuit court in this cause makes the exception the rule. In this case the circuit court says : “ The relief, however, ought not to be the average price per acre. This is the exact measure of damages when land alone is sold. But when land with very valuable buildings are sold, and there is a mere deficiency in quantity of land, but all the buildings are secured, it would be an absurd measure of damages.”

And tbe circuit court then proceeds to decree upon an estimate of the buildings upon this tract of land, at $2,211, when the entire tract of one hundred and sixty-five acres was estimated at a price which brought it below that sum. The estimate of the buildings, as filed in this cause, is an illustration of the wisdom of the rule heretofore maintained by this court, and a warning against the new departure taken up by tbe circuit court.

This court in Watson v. Hoy, supra, was of opinion that in that case there were particular circumstances requiring a departure from the rule, on account of bridge privileges and fisheries of great value, and the exceptional character of the elegant mansion at Chatham. But what and where are the exceptional and particular circumstances in this case? A wooden farm-house, with the usual out-buildings and fences, seem to present the most ordinary case which could be stated, and the estimate and deduction of the value of the fences seem to he unprecedented. If the value of the fences on the farm is to he considered, it must have been upon the presumption that the seventy-five acres deficient would have been without fences, which seems to be an unsupported presumption. The decree of the circuit court is plainly erroneous.

When the parties contract for the payment of a gross sum for a tract or parcel of land upon an estimate of a given quantity, which influences the price agreed to be paid, there is no mistake in the terms of the contract, nor in the application of those terms to the subject; but the mistake is in an important element of the contract, which, if correctly understood at the time, would in all probability have prevented the contract from being made, or have varied its terms. That such cases require relief in equity is well established.

The proper relief is to set aside the contract, or to give a just compensation, such as will place the parties in the same relative situation in which they would probably have .placed themselves if the true state of the fact had been known when they made their agreement.

Upon the question of compensation the substantial distinction is between a sale that is a contract of hazard and one that is not._ A sale in gross, when applied to the thing sold, means a sale by the tract, without regard to quantity, and is in that sense a contract of hazard. Russell v. Keeran, 8 Leigh, 19.

In that sense, however, the distinction sometimes taken, between a sale in gross and a sale by the acre is too narrow, inasmuch as though a sale in gross, thus understood, is a contract of hazard, a sale by the acre may be so too.

A sale by the acre, at a given sum per acre, carries out the intention of the parties, whether they are correct or mistaken in their estimate of the quantity; whereas a sale in gross effectuates their intention only when they are correct as to quantity. The true ground of relief is as to the mistake of the parties. For example, when a given sum per acre is not an even quotient of the gross price stipulated, it cannot, as has been sometimes supposed, serve to show that the sale is a sale in gross (understood as a contract of hazard), inasmuch as it may well have happened, not merely that there was no sale by the acre, but no estimate of the price per acre, which the gross price would give, and yet the gross sum may have been influenced by the supposed quantity, hy enhancing or diminishing the value according to an aggregate, and not a distributive estimate. See the opinion of Baldwin, Judge, in Blessing v. Beatty, supra.

The question of compensation usually arises, not in sales by the acre, but in sales for a gross sum. The first enquiry is, did the parties make a mistake in their estimate of the quantity which influenced the price; and then whether, notwithstanding the mistake, they have waived their right to compensation by a contract of hazard. The estimate of the quantity should, as a general rule, always be taken to have influenced the price. In the case before us the quantity is not stated in the deed, but the quantity appears to have been throughout’ all the negotiations from first to last matter of discussion, consideration and contract on both sides. For the reasons stated above, I think the circuit court erred in the mode adopted in ascertaining the measure of damages.

This is a case of deficiency in quantity within the boundaries of the tract conveyed. In such a case the general rule of compensation is, according to the average value of the whole tract, and there are. no peculiar circumstances in this case requiring a departure from that rule. The sale was based upon an estimate of $20 per acre for the whole tract of land, and the deficiency was seventy-five acres. The true abatement is the amount obtained by multiplying these, two numbers together, to-wit, $1,500, which should be credited on the principal sum still owing by the appellant as of the date when it bears interest. I am for reversing the decree of the court below and remanding the cause for further proceedings to be had therein, in accordance with this opinion.

The decree is as follows:

This day came here the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of. opinion, for reasons stated in writing and filed with the record, that the appellant is entitled to compensation for the deficiency, ascertained to be seventy-five acres, in the farm purchased by him from the appellee’s decedent, and that such compensation should be allowed him by way of abatement in the balance of the purchase money due by him for said farm. And the court is further of opinion, that such compensation should he according to the average value per acre of the whole tract under the contract of ■purchase—to-wit., twenty dollars per acre for seventy-five acres, which appears to be the deficiency as aforesaid. And the court being further of the o,pinion, that the decree aforesaid of the said circuit court is wholly erroneous, it is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellant recover against the appellees his costs by him expended in the prosecution of his appeal aforesaid here, and that in satisfaction of this decree for costs he be allowed to retain the amount of said costs, and receive credit therefor on the balance of the purchase money owing by him as aforesaid.

And this cause is remanded to the said circuit court of Washington for further proceedings to be had therein, in conformity with the opinion and the directions herein contained.

Which is ordered to be certified to the said circuit court of Washington.

Decebe eeveesed.  