
    *Hoback v. Kilgores.
    [21 Am. Rep. 317.]
    June Term. 1875,
    Wytheville.
    1. Mistake—Mutual—Compensation.—K sells to H a tract of land, expressing- the belief, which he no doubt entertained, that there were 127 acres in the tract, and H relying on that belief purchased, and paid the purchase money. There were in fact but 81 acres. K haying sold, and H haying purchased under a mutual mistake, H is entitled to compensation for the deficiency.
    2. Same- Same—Same—Measnre.—Although in cases of mere deficiency in quantity, within the boundaries of a tract sold, the general rule of compensation is according to the average value of the whole tract, yet where, as In this case, there are valuable improvements upon the land, the value of which bears a very large proportion to the value of the land, the just and true measure of compensation is according to the average value of the land without the improvements, considering both together with the price for which it was sold, estimating the quantity of the land, as the parties did. at 1.27 acres.
    3. Sales of Land—Warranty—General—Special.—A vendor of land in his own right is bound to convey it with general warranty, unless it be otherwise agreed between the parties. But a party who had sold to the vendor, and had retained the legal title, or had some interest in the land, is only required to convey with special warranty.
    This was suit in equity in the Circuit court of Wise county, brought in August 1872, by Bevi Hoback against Isaac and Hiram Kilgore, to enforce a contract for the sale of a tract of land by Isaac Kilgore to Hoback. The plaintiff in his bill charged, that Isaac Kilgore had sold him the land, and assured him that the tract contained one hundred and twenty-seven and a half acres, for which he was to pay him $1,400; which he had paid. That he had since had *the land surveyed, and the tract in fact contained but eighty-one acres and a fraction. He therefore claimed compensation for the deficiency.
    The defendant, Isaac Kilgore, in his answer, insisted that he sold the land by the boundaries, and denied that he gave assurance of any particular quantity.
    It appears irom the evidence, that Isaac j Kilgore had purchased the land from his I brother Hiram Kilgore, in 1856, and they | estimated that there was in the tract one ! hundred and twenty-seven and a half acres; and that he expressed strongly to Hoback, at the time of the sale to him, that he believed, as he no doubt did believe, that there was that quantity of land; and that Hoback purchased supposing there was that quantity.
    It appeared further, that Isaac Kilgore had, after his purchase of the land, put improvements on it, consisting of a dwelling-house, a barn and other outhouses, also a tan-yard and a grist-mill.
    And it also appeared, that at the time of the sale to Hoback, the title to the land was in the Commonwealth.
    The cause came on to be finally heard on the 4th day of April 1874, when the court held that the sale to the plaintiff was a sale in gross, and that Isaac Kilgore was not liable to account for any deficiency in the estimated number of acres of the land; and decreeing that Isaac and Hiram Kilgore should convey to the plaintiff all their right, interest and claim to the land, with special warranty, gave them their costs. From this decree Hoback applied to this court for an appeal; which was allowed.
    Burns, for the appellant.
    Gilmore, for the appellees.
    
      
      Mistake—Mutual—Compensation.—As to the necessity for mutuality in order to allow relief, see citation of the principal case in French v. Chapman, 88 Va. 322; Massie v. Heiskell, 80 Va. 801. See also, as to equitable relief, Mauzy v. Sellars, 26 Gratt. 641. In Crislip v. Cain, 19 W. Va. 550, the court says: “The case of Hoback y. Kilgores is very imperfectly reported, the contract, between vendor and vendee not being stated, nor its contents even alluded to by the court. The vendee was relieved in part from the payment of the purchase-money because of a deficiency. Judge Monguee, on page 444 states, that ‘the vendor represented to the vendee, that the quantity of the land was one hundred and twenty-seven and a half acres; and the vendee made the purchase on the faith of that representation. Whereas in truth and in fact there were but eighty-one acres of land in the tract. ’ If this be a correct statement of the case, on the principles, which we have laid down, an abatement should have been made on account of the deficiency, as was done. But the reporter slates a case essentially different, as does the syllabus; and if the reporter is right in his statement of the case, on correct principles no such relief could have been granted the vendee.”
    
    
      
      Same—Same—Same—Measure.—The mode of ascertaining the compensation, as laid down in the principal case, is followed in Yost v. Mallicote, 77 Va. 614; Trinkle v. Jackson, 86 Va. 241; Nichols v. Cooper, 2 W. Va. 347; Triplett v. Allen, 26 Gratt.721; Blessing v. Beatty, 1 Rob. 287. See especially. Watson v. Hoy, 28 Gratt. 713. and note. The principal case is cited in 21 Am. Rep. 317.
    
   *Moncure, P.

delivered the opinion of the court.

The court is of opinion, that there was a mutual mistake between the vendor and vendee in this case as to the quantity of land included in the boundaries of the tract sold by Isaac Kilgore to Bevi Hoback, as in the proceedings mentioned; the vendor having represented to the vendee that the said quantity was one hundred and twenty-seven and a half acres, and the vendee having made the purchase on the faith of that representation; whereas, in truth and in fact, there were but eighty-one acres of land in the said tract.

The court is further of opinion, that the vendee, having fully paid the purchase money of the said tract according to the contract of the parties, is entitled to be compensated for the said deficiency in the quantity of land in the said tract, according to the principles laid down in Blessing’s adm’rs v. Beatty, 1 Rob. R. 287, and the cases therein cited.

The court is further of opinion, that although, in the case of a mere deficiency in quantity within the boundaries of a tract of land conveyed or contracted to be conveyed, the general rule of compensation is according to the average value of the whole tract —Id. p. 305; yet there will be a departure from that rule when particular circumstances require it—Id. And the court is of opinion, that there are such circumstances in this case, arising from the fact that there are valuable improvements upon the land, consisting of a dwelling-house, barn, and other outhouses, a tan-yard, and a gristmill, the value of which improvements bears a very large proportion to the value of the land. And the court is therefore of opinion, that in this case the just and true measure of compensation *is according to the average value of the land without the improvements, condsidering both together to be worth the contract price of fourteen hundred dollars, estimating the quantity of the land, as the parties did, at one hundred and twenty-seven and a half acres.

The court is further of opinion, that a vendor of real estate in his own right is bound to convey the same with general warranty, unless it be otherwise agreed between the parties; and there having been no such other agreement between these parties, the vendor, Isaac Kilgore, is bound to convey the said tract of land to the vendee, Revi Hoback, with general warranty. But though it is necessary for the appellee, Hiram H. Kilgore, who seems to have the legal title to or some interest in the land, to join in the said conveyance; yet as he was not the vendor, he is bound to convey only with special warranty.

And the court is therefore of opinion, that the Circuit court, instead of making the final decree which it did, ought to have decreed that the said vendee, Hoback, is entitled to a specific execution of the said contract for the purchase of the said tract of land, and to be compensated for the deficiency in the quantity of the said tract which was sold to him as containing one hundred and twenty-seven and a half acres, the said compensation to be ascertained in the manner aforesaid. And the court ought to have ascertained the extent of the deficiency and the amount of compensation to which the said vendee is entitled therefor, by a reference to a commissioner of the court, unless such reference had been rendered unnecessary by an agreement of the parties as to such extent and amount; and ought to have decreed the payment of the said amount with interest from the time at which it was due by the vendor to the vendee, and the conveyance *of the said tract of land in fee simple to the vendee by the vendor Isaac Kilgore with general warranty, and by the said Hiram H. Kilgore with special warranty, and the payment by the said Isaac Kilgore of the costs of the plaintiff in this suit in the said Circuit court.

The court is therefore of opinion, that the decree appealed from is erroneous; and it is decreed and ordered that the same be reversed and annulled, that the appellee Isaac Kilgore pay to the appellant bis costs by him expended in the prosecution of his appeal aforesaid here, and that this cause be remanded to the said Circuit court for further proceedings to be had therein to a final decree, in conformity with the foregoing opinion.

Which is ordered to be certified to the said Circuit court of Wise county.

Decree reversed.  