
    *Triplett v. Allen & als.
    September Term, 1875,
    Staunton,
    i. Sales of Land by the Acre—Mistake—Compensation.—A case in which a sale of land was held, upon the written contract and the evidence, to have been a sale by the acre, and not a sale in gross; and the vendor was bound to make good the deficiency in the quantity at the average value of the whole tract per acre.
    
      2. Same—Same—Words “More or Less”—Not a Contract of Hazard.—Tile conveyance oí the land, after giving- the number of acres, adds the words “more or less.” These words will not relieve the vendor or vendee, as the case may be, from the obligation to make compensation for an excess or deficiency, beyond what may be reasonably attributed to small errors from variation of instruments or otherwise, unless there be evidence to show that a contract of hazard was intended.
    3. Same—Same—Same.—Ten acres, in a tract of 166 acres, where the land is worth fifty dollars an acre, is not one of these small deficiencies to be covered by the phrase “more or less.”
    This was a bill in the Circuit court of Shenandoah county, by Leonidas Triplett, to enjoin a judgment for $1,635.45 with interest, recovered against him by Lemuel Allen, upon a bond given by Triplett to Allen for part of the price of two tracts of land sold by Allen to Triplett. The grounds relied on in the bill for an injunction, were that the land was sold by the acre, and there was a deficiency in the quantity sold; and that Allen had conveyed to Triplett a right of way from one tract to the other over the land of Tiphen W. Allen; which right of way he did not possess. The injunction was awarded as to $1,000 of the judgment.
    Allen answered the bill. He denied that the sale of *the lands was by the acre, and insisted that it was a sale in gross. He denied that he conveyed to Triplett any right of way except that mentioned and reserved to him in his father’s will. If Tiphen W. Allen has refused to permit complainant to enjoy said right of way as alleged, as to which he, Allen, is not advised, he is not responsible for the fact.
    A number of witnesses were examined as to the circumstances attending the contract between Allen and Triplett, for the sale and purchase of the land; and the cause coming on to be heard on the 25th of August 1874, the ecrat dissolved the injunction and dismissed the bill with costs. And thereupon Triplett obtained an appeal to his court. The facts are stated by Judge Christian in his opinion.
    M. Bird and H. C. Allen, for the appellant.
    M. Walton, for the appellees.
    
      
      Mistake—Compensation.—On this subject, see Hoback v. Kilgores, 26 Gratt. 442, and note; Watson v. Hoy, 28 Gratt. 713, and note; also, Boschen v. Jurgens, 92 Va. 756.
    
    
      
      Sales by the Acre—Contracts of Hazard.—In the case of Boschen v. Jurgens, 92 Va. 459, Judge Keith delivered the opinion of the court, and citing the principal case, also, Blessing v. Beatty, 1 Rob. 287; Crawford v. McDaniel, 1 Rob. 448; Watson v. Hoy, 28 Gratt. 698; Benson v. Humphreys, 75 Va. 196, said: “These cases not only show that equity will take jurisdiction of this class of cases, upon the ground of mistake, but that ‘every sale of real estate, where the quantity is referred to in contract, and where the language of the contract does not plainly indicate that the sale was intended to be a sale in gross, must be presumed to be a sale per acre; that while contracts of hazard are not invalid, courts of equity do not regard them with favor.’” See also, Norfolk Trust Co. v. Foster, 78 Va. 419.
    
   Christian J.

delivered the opinion of the court.

The court is of opinion, that the decree of the Circuit court of Shenandoah was erroneous in dissolving the injunction awarded in vacation, and dismissing the plaintiff’s bill. The evidence conclusively shows that the sale by Allen to Triplett was a sale per acre, and not a sale in gross. The contract of sale filed with the answer provides “that the said Lemuel Allen doth covenant and agree to sell to the said L. Triplett the home tract of land (with appurtenances thereto belonging), containing one hundred and sixty-six acres, three roods and twenty-eight poles,” with certain boundaries described—‘ ‘together with one hundred and fifty acres of mountain land,” for the consideration of ten thousand *dollars. This contract was dated the 3d of November, 1869. It seems on the day before this contract was entered into this land was offered at public auction, and the home tract was offered and bid for by the acre. On that day the bidding went up to some $35 or $40 per acre, and the land was taken down. On the next day (November 3d) the land was again offered at public auction, and the bidding went up to $52 per acre. The bidding was then stopped, and there were certain negotiations between the parties; calculations were made, putting the mountain land at $8 per acre; and propositions to give for the home tract enough per acre (estimating the tract at one hundred and sixty-six acres, three roods and twenty-eight square poles) to make the purchase money for the whole amount to the sum of $10,000. The result of these negotiations was the contract above referred to, by which Allen agreed to sell to Triplett one hundred and sixty-six acres, three roods and twenty-eight poles of what was known as the home tract. A deed was executed on the 2d of December, by Allen and wife, with general warranty, conveying to Triplett this land as described in the contract of sale, except that after the words describing the quantity, are inserted the words “more or less.” It turns out upon a survey of the home tract that there is a deficiency of about ten acres.

The court is of opinion that under the contract of the parties and the evidence taken in the cause, the sale was a sale per acre, and not a sale in gross, and that the appellee is bound to make good this deficiency at the average value of the home tract per acre.

But if the contract can be considered a sale in gross and not per acre, the insertion of the words “more or less” in the deed does not affect the case. Dor it is well settled by repeated decisions of this court, that *the employment of such words will not relieve the vendor or vendee, as the case may be, from the obligation to make compensation for an excess or deficiency, beyond what may be reasonably attributed to small errors from variation of instruments or otherwise; unless, indeed, there be evidence to show that a contract of hazard was intended. In the absence of such evidence, it is to be presumed that the parties contract with reference to quantity. It is an important element in every agreement, and prima facie must be intended to influence the price.

Ten acres in a tract of one hundred and sixty-six acres, especially when worth at least $50 per acre, is not one of these “small defici enees” to be covered by the phrase “more or less;” and the vendor must be held liable, and the vendee compensated for such deficiency. Nor is the vendor at all relieved from obligation to make good this deficiency by the fact that a part of this land, to the extent of about four acres, was at the time of the sale vested, by proceedings of condemnation, in the Manassas Gap Railroad Company; and that vendee knew, when he bought the.land, that said railroad passed through one side of this land. Knowledge of the fact that a railroad passed through the home tract does not alter the question, or change the obligations of the parties. The vendee, under his contract, had purchased one hundred and sixty-six acres, three roods and twentveight poles of the home tract. How much of. the home tract had become vested in the railroad company was no concern of his. He had a right to presume that the quantity called for by his contract was still left after deducting that in the possession of the railroad' company. The company had acquired a fee simple right to the land held by them, for which no doubt Allen had received full compensation. So far as *this four acres is concerned, Allen stands in the same position as if he had sold and conveyed the four acres to another party before the sale to Triplett; and the fact that Triplett saw and knew that the Manassas Gap railroad passed through this land, could have no more effect on this contract of the parties than if he saw and knew that four acres of the home tract had been sold and possession delivered to a purchaser having a deed in fee simple for four acres of said land. The contract of Allen was to convey to Triplett one hundred and sixty-six acres, three roods and twenty-eight poles, and if he had conveyed a part of it, or had received compensation for a part of it, vested by proper legal proceedings in a railroad company, it was no concern of Triplett, and Allen must make up the deficiency. The court is therefore of opinion that the decree of the said Circuit court was erroneous in dissolving the injunction and dismissing the plaintiff’s bill.

The court ought to have perpetuated the injunction certainly, to an amount sufficient to cover the deficiency in the land sold, and have proceeded to declare, upon the evidence in the cause of the value of the land and the deficiency in the value of acres proved, what amount is due to Triplett.

The court is further of opinion, that no deduction in the purchase money can be made-on account of the right of way which is claimed by the appellant to have been guaranteed to him by • the appellee. The deed conveys Samuel Allen’s “right of way across Rhesa Allen’s farm now owned by Tiphen W. Allen to the aforesaid mountain land.” To ascertain what Samuel Allen’s right of way is, reference must be had to the will of Rhesa Allen. The third clause of said will provides as follows: “I further desire that my son Lemuel shall have one hundred and fifty acres of timbered *land, adjoining the lands of Charles Moore, of the mountain tract; and the residue of all lands on the southeast side of the river, or, in other words, the mountain side of the river, shall be Joseph Tiphen W. Allen’s land, with the express understanding that Lemuel Allen is to have a right of way to the timbered land. ” Now this right of way under the will, whatever it may be, has been conveyed by Allen to Triplett. But there is nothing in the record to show that the right of way conveyed, that is, what was conferred by the will of Rhesa Allen, has been denied to Triplett. He (Triplett) is certainly entitled under his contract to the same right of way which was secured to Lemuel Allen under the will of Rhesa Allen. But there is nothing to. show in the record, that this right of way has been denied to him.

Triplett, as to his legal rights, can only stand upon such as are secured by the will to Lemuel Allen. It does not appear that these rights have been denied to him. It will be time enough to act upon this question when Triplett has failed to recover his right to the same right of way which the will secures to Lemuel Allen. All that this court now means to decide upon this branch of the case is, that Triplett is only entitled to such right of way as Allen had under the will of Rhesa Allen, his father. What that may be, is a subject of litigation between the parties, and remains to be determined; but the value of the said right of way is still undetermined, and is not to be taken into the estimate of the deficiency for which the appellee is responsible.

The court is therefore of opinion, that the said decree of the said Circuit court, dissolving the injunction and dismissing the plaintiff’s bill, is erroneous; and that said decree be reversed, and this cause reinanded *to said Circuit court, with, instructions to inquire and determine what was the deficiency of the number of acres and the value thereof, and to perpetuate the injunction as to said amount, and dissolve the same as to the balance. The decree must, therefore, be reversed, and the cause be remanded to said Circuit court to be further proceeded in in accordance with the principles herein announced. .

The judgment was as follows:

This day came again the parties by counsel; and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, that the decree of the said Circuit court is erroneous, in dissolving the injunction and dismissing the appellant’s bill; the court being of opinion, that the sale from Allen to Triplett was a sale per acre, and not a sale in gross, and that the appellee Allen is bound to make good the deficiency which is shown to exist.

The court is further of opinion, that in taking account of this deficiency, and of what amount the appellant is entitled to recover from the appellee, the value of the right of way is not to be estimated; the court being of opinion, that the appellee conveyed by his deed the same right of way which under the will of his father was secured to said appellee Allen, and there is nothing in the record to show that this right of way has been denied to him.

It is therefore ordered and decreed, that the said decree be reversed and annulled, and that the appellant recover against the appellee his costs expended in the prosecution of his appeal here. And the cause is remanded to said Circuit court, with instructions to ^ascertain and determine what is the deficiency in the quantity of the land sold by the appellee to the appellant, and the value of said land appearing to be so deficient; and as to that amount the injunction must be perpetuated, but dissolved in all other respects: which is ordered to be certified to the said Circuit court of Shenandoah county.

Judgment reversed.  