
    Foley v. McKeown.
    December, 1833.
    Specific Execution — Sale in Gross — Deficiency—Abatement. — A house and lot in town is advertised for sale at auction, and the lot described as con Laininv nearly two acres: the auctioneer at the sale, states that there is nearly two acres, but points to the enclosure of the lot as containing- the land he proposes to sell: and it appears to have been a sale in gross; the lot, in Cs.ct, contains only one acre and twelve poles: upon a bill for specific execution, by vendor against vendee, Held, specific execution rightly decreed; and the purchaser is not entitled to any abatement in the price for such deficiency.
    Sarah M’Keown exhibited her bill against Patrick Foley, in the superiour court of chancery of Richmond, alleging that in March 1828, she had advertised and offered for sale, at public auction, a house and lot in the town of Petersburg; that Foley purchased the property at the price of 1421 dollars, payable in instalments; and that a memorandum in writing of the contract and terms of sale, was prepared by the ^'auctioneer, and signed by Foley, but that he now refused to comply with the contract; and praying a decree for specific execution.
    Folei' answered, that in the advertisement of the property for sale published by the plaintiff, it was described as a lot of land containing “nearly two acres;” that the property was sold by the description contained in the advertisement, no correction or alteration thereof being made by the auctioneer at the time of sale, except that he pointed out the enclosure of the lot, to the persons present; that he, Foley, believing that the lot contained 1 ‘nearly two acres,” as mentioned in the advertisement, and as the auctioneer stated at the sale, without adding the words “more or less,” purchased it on the terms mentioned in the bill, and without suspecting any deficiency in quantity, signed the memorandum prepared by the auctioneer; but that it was shortlj' afterwards ascertained by survey, that the lot, instead of being nearly two acres, was only one acre and twelve poles; that the value of real property in towns, depends materially on the quantity of ground; that his chief object in making the purchase, was the ground, and he would not have given near so much, if he had not been misled as to the quantity; and that, therefore, he had declined to complete the purchase, and asked to be absolved altogether from the contract.
    The advertisement described the property, as the lot lately occupied by Alex. M’Keown deceased, situated at the junction of Market street and Halifax road, “containing nearly two acres, and having on it a good dwelling house and the usual out houses.” The memorandum of the contract signed by Foley, stated that he had purchased, at auction, for the sum of 1421 dollars, “the house and lot lately occupied by A. M’K. deceased,” on a credit &c. without any mention of the quantity.
    The auctioneer deposed, that after he had prepared the advertisement of the sale by direction of the plaintiff, he understood that part of the lot as originally held by Alex. M’Keown deceased, had been sold by him in his *lifetime, and being therefore uncertain as to the true quantity, he declared, publicly, at the commencement of the sale, that the lot was to be sold as so much, more or less, and no particular quantity was to be warranted; that the boundaries of the lot, namely, the enclosure thereof, was repeatedly pointed out to the persons present as containing the ground offered for sale; that when Foley presented himself as a bidder, he had a private conversation with him, and made the same declaration to Foley, which he had made publicly, at the commencement of the sale, pointing out to him at the same time the boundaries of the lot. And another witness, who was at the sale, deposed, that the auctioneer proclaimed, that the quantity of ground was about, or was reckoned at, two acres, but that he would not warrant that quantitj', and then pointed to the enclosure as containing the ground he was selling. But eight persons present at the sale, deposed, that they heard no such public declaration as that which the auctioneer said he made at the commencement of the sale; and that all they heard him say, was, in the language of the advertisement, that the lot “contained nearly two acres;” but he pointed out the boundaries, namely, the enclosure, as including the property he was going to sell. One person who was a bidder at the sale said, that if he had purchased the lot, he would have thought himself entitled, under the description of the lot as containing “nearly two acres,” to more than an acre and a half. However, there was very clear proof, that the sale was a sale in gross, of the ground contained within the enclosure, and not a sale by the quantity; and that this was intended by the vendor and the auctioneer, and understood by the persons present at the sale. It was proved that the lot contained only one acre and twelve poles.
    The chancellor decreed specific execution of the contract. And upon the petition of Foley to this court, an appeal was allowed him from the decree.
    *The cause was argued here, by Spooner for the appellant, and by Wyndham Robertson for the appellee, upon two points: 1. Whether, seeing that the lot was described in the printed advertisement, and by the auctioneer at the sale, as containing nearly two acres, and that before the sale, there had occurred reason to doubt whether the quantity was not exaggerated in the advertisement, and that the lot was in fact only one acre and twelve poles, — the court of chancery ought, under such circumstances, to have decreed specific performance of the contract? And 2. Whether the purchaser ought not, at least, to have been allowed an abatement, from the price in proportion to the deficiency?
    
      
       See monographic note on "Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   TUCKEJR, P.

I throw out of the case, the evidence of the auctioneer, that he proclaimed that a part of the lot had been sold by the former owner in his lifetime, and that it was sold only for so much, more or less, without warranty of quantitjr. Where there has been a public advertisement of the terms of a sale at auction, the bidders must be presumed to have looked to those terms, if the contrary be not proved; unless it is proved, that the buyer did know of a change or variation in the terms. Whether, in any case, this knowledge can be brought home to a party who denies it, by proof that other persons heard the announcement of the change, it is not necessary to decide in this case. It would be hard to presume, that the defendant must have heard what he disclaims having heard, when eight or nine persons attending at the same time and place, equally depose that they did not hear it. But, independent of that fact, I take the purchase to have been a purchase in gross. It was not a purchase by the quantity of ground contained in the lot. It was a purchase of the lot of ground, such as it was, whether it was more or less than two acres. It was advertised as containing “nearly two acres;” an indefinite expression, which excludes all idea of any accurate graduation of the price to the actual quantity of ground. It is impossible to fix upon any precise point, to which the representation can '*be supposed to have referred. Can it be affirmed, that an acre and a half came within the description of “nearly two acres?” One bidder thought it would. The party not having warranted or stated any particular quantity, — the lot being small, the enclosure pointed out, and the whole lying under the eye of the purchaser, I cannot doubt that it was a purchase in gross, and that the purchaser should be compelled to complete the contract.

The other judges concurring, decree affirmed.  