#### Nelson v. Carrington, Executor of Burwell, and Others.

Argued November 18th, 19th, 23d, and 24th, 1813,

i. Real Estate — Sale by Acre — Deficiencies—When Relief Granted.* — In case of a sale of land by the acre, relief Is to be granted for all deficiencies, not reasonably imputable to the variation of instruments, and small errors in survey; whether the purchaser has expressly retained an election to have the tract surveyed or not. See Quesnell v. Woodlief, 2 H. & M. 174; and Nelson v. Matthews, Ibid. 164, 181. And this principle is not departed from, but in case of a sale by the tract, the purchaser clearly agreed to take the hazard of all deficiencies upon himself.

See Jolliffe and others v. Hite, 1 Call, 301, 329: Hull v. Cunningham’s Executor, 1 Munf. 336; and Grantland v. Wight, 2 Munf. 179; also Duvals v. Ross. Ibid. 290.

3. Same — Same—Same—Measure of Compensation, †— The measure of the compensation to be made for a deficiency, in case of a sale of land by the acre, unattended with any particular circumstances, is the average value of the whole tract; without regard to the circumstance that the deficiency was in this or that description of the land.

See Nelson v. Matthews, 2 H. & M. 164; Hull v. Cunningham’s Executor, 1 Munf. 330, 338; Humphrey’s Administrator v. M’Clenachan’s Administrator. Ibid. 493. 501.

3. Same — Same—What Constitutes}‡ — Equivocal Sale by Executor. — If an agreement of sale, by an executor under the will of his testator, be equivocal the court should be inclined to consider it a sale by the acre, and not by the tract; it being a dangerous principle, that executors, or other fiduciary characters, should take upon themselves, by means of bargains of hazard, to j eopardize the interests confided to their care.

4. Same — Same—Same—Survey§—When It May Be Demanded. — If N. purchase of B. ’s executors a tract of land, as “containing about a specified number of acres, more or less, at a certain price per acre; the quantity to be ascertained by actual survey, if N. shall require it;” this is a sale by the acre, if N. shall require the survey. And if no time *143be limited by tbe terms of tbe contract for making-bis election, be bas tbe right of demanding- tbe survey, at any time before tbe whole business shall have been concluded, and a title to tbe land made or tendered by tbe vendors.

5. Same — Same—Same—Same—Waiver of Right to.— In such case tbe purchaser’s right of election to have the survey is not determined by bis taking possession of tbe land, or giving bonds for tbe purchase money; nor is such right necessarily limited by tbe last day of payment: for, although tbe day of payment bas arrived, be is not bound to part with tbe purchase money, nor to make a final adjustment of tbe balance due, unless a title is made or tendered, agreeably to tbe terms of tbe contract.

*6.*Chancery Practice — Lapse of Time — How It Defeats a Right. ǁ — Lapse of time is permitted, in equity, to defeat an acknowledged right, on tbe ground only of its affording evidence of a presumption that such right bas been abandoned. It therefore never prevails, when such presumption is outweighed by opposing facts or circumstances.

7. Same — Forfeitures—Relief against. ¶— Equity is not fond of taking advantage of forfeitures arising merely from a lapse of tbe time specified: on tbe contrary, it is tbe constant course to relieve against such forfeitures on making adequate compensation.

8. Realty — Sale by Acre — Survey—Waiver of Right to. — Where a tract of land is sold as containing about a specified number of acres more or less, at a certain price per acre ; reserving to tbe purchaser an election to have tbe true quantity ascertained by a survey; it is not unfair or illegal for tbe purchaser to make bis election, after discovering tbe quantity by an experimental survey.

9. Executors* ** — Renunciation of Trust†† — Sale by Part of Executors. — A testator, in tbe year 1784, having directed that bis executors should sell all bis real and personal estate for tbe payment of bis debts ; and having appointed four executors, three of whom qualified ; a sale, in tbe year 1794, by two of tbe acting executors, was considered valid; and tbe third executor (as well as tbe fourth, who never qualified,) was presumed to have renounced bis right to administer, as at the date of tbe sale in question.

See Geddy and Knox v. Butler and wife, 3 Munf. 345.

10. Co-Executors — Sale by One — Assent of Other— What Amounts to. — If tbe written agreement of sale be signed by tbe purchaser, and one of tbe two acting executors; tbe other may, by acts in pais, though not in writing, (such as delivering possession of tbe land and the like,) manifest bis assent to tbe sale, and make it bis own act.

11. Executors — Sale of Mortgaged Property ** — Although a tract of land be decreed to be sold to satisfy a mortgage, tbe executors of tbe mortgagor, being authorized by bis will to sell all bis real and personal estate, may sell it for a full and fair price, with tbe assent of tbe mortgagee, or bis attorney.

12. Realty — Sale—Confirmation by Vendor. — A vendor, by bringing suit, and obtaining judgment, for tbe purchase money, ratifies and confirms tbe sale; so that it cannot be set aside at bis instance.

Eewis Burwell, the elder, who died in the year 1784, by his will directed that his executor should sell, at ^public or private sale, as they should think most convenient, all his estate real and personal, for the payment of his debts; and that the surplus of the money should be divided between his daughter Elizabeth Page, his son Nathaniel Burwell, and his two grand sons Edwin and William A. Burwell. He appointed his sons Eewis and Nathaniel, Mr. John Page, junr. of Caroline County, and Eewis Burwell, of Mecklenburg, his executors ; of whom the three last mentioned qualified.

On the 12th of July, 1794, a written agreement was entered into, “between Nathaniel Burwell, executor of Eewis Burwell, deceased, and John Nelson ;” stating, “that the former sells to the latter a tract of land, late the property of the said Eewis Burwell,” on the waters of Roanoke, containing about five thousand, one hundred and thirty acres, more or less, at the price of thirty shillings per acre, the quantity to be ascertained by actual survey, if the said Nelson shall require it; the payments tobe as follow; to wit, four thousand pounds on the 25th of December, 1794 ; fifteen hundred pounds on the 25th of December, 1795; fifteen hundred ^pounds on the 25th of December, 1796 ; and the balance on the 25th of December, 1797. But as this land is mortgaged to the house of Robert Carey & Co. late merchants of Eondon, the said Nelson is at liberty, out of the said purchase money, to take up the said mortgage ; and the said Burwell is to allow him the full amount thereof, except eight years interest during the war; and the said Nelson is to be allowed interest thereupon until the said land payments shall become due. But, as the said Nelson has not yet seen the land, he shall have till the first day of August to determine whether he takes if or not. When possession is delivered, the said Nelson is to enter into bond with full and sufficient real or personal security, as the executors shall require, (which possession shall be given on the 25th day of December, 1794,) for the balance that shall be due.”

Nelson saw the land, and, before the first of August, agreed to complete the bargain,; which confirmation, signed “J. Nelson,” and “N. Burwell,” was endorsed on the agreement, under date of “19th July, 1794.” He paid, in part of the purchase money, on the 31st day of the same month, 10001. to Benjamin Waller, attorney for Wakelyn Welch, surviving partner of Robert Carey & Co., and secured to be paid to the same company, (in whose behalf a decree of foreclosure of the mortgage had been obtained, and who, it seems, by their said attorney, assented fo the sale of the land *to*Nelson,) the farther sum of 20001. on the 27th of February 1795; which sum was accordingly paid. On the 25th of December 1794, he was put in possession of the land by Eewis Burwell of Mecklenburg, one of the *144other executors; — and. having made a farther payment of 30001. in bonds of William Penn and John Taylor, amounting to 15001., payable the 25th day of December 1793, and 15001. payable the twenty-fifth day of December 1796, he gave his own bonds, “to Nathaniel Burwell and Bewis Burwell, executors of Bewis Burwell, deceased,” for 10001. payable on demand, with interest from the date, and 7071. 5s. 8d. payable on or before the 25th day of December 1797, being the sum remaining due for the land at 30s. per acre (with some interest calculated,) *estimating the quantity at 5130 acres. He also gave a deed of mortg-age, on sundry slaves, to secure the payment of the two last mentioned bonds; which deed, bearing date the 25th of December 1794, was executed to “Nathaniel Burwell and Bewis Burwell (of Mecklenburg) acting surviving executors of Bewis Burwell deceased.” Two payments were made by Nelson, on account of the bonds ; one of the 8th of September 1797, of 3001., and another on the 31st of August 1801, of 4361. 4s. 4d. All the receipts were signed by Nathaniel Burwell only.

On the 20th of March 1801, in answer to a letter from Nathaniel Burwell, Nelson wrote to him, excusing himself for not completing his payments, and observing, “I am well advised that it will be a difficult matter for me to obtain a title to the land, and that the sale by you, as a single executor, without the signature of the other executor, is not a good one : under these circumstances, I am persuaded, no one could blame me, were I to refuse to make any farther payment until I was secure in the title which, in case of your deEith, I should find great difficulty in establishing ; but 1 am not disposed, after so long indulgence, to raise any dispute, and am willing that the tobacco, as far as it will go, shall be applied to the discharge of my debt, more especially, as your situation is so critical a one, that, had I money at command, and was not in debt, there is no use in the world that it could be put to, that would give me as much pleasure as to stop the sale of your property, or that of any friend ; but in case Waller should come forward with his decree, and attempt to make sale of the land under it, I must hope and expect you will enter the appeal again ; for if all the money paid by me had been received by him, with what I can now pay, the mortgage would .have been more than discharged, and, by our original agreement, that was to have been done first; and, had you met me last May two years, when Col. Burwell and myself went to Richmond, there would not have been as much money due as there is now ; for, when I found I could not get a deed, I applied the money I intended for you, except 3001. to the discharge of other debts.” In this *letter, nothing was said of a deficiency in the quantity of land, and no demand was made of a survey.

In the year 1802,-Nathaniel Burwell died, and Nelson, having had a survey of the land made by John Hill, surveyor of Mecklenburg County, by which it was discovered that the whole tract contained no more than 4126 acres, wrote to Bewis Burwell (of Richmond,) who had never qualified as executor of Bewis Burwell the elder, but was executor of Nathaniel Burwell, who was surviving executor of Bewis Burwell the elder, (Bewis Burwell (of Mecklenburg) having previously died,) informing him of the important deficiency discovered in the land : whereupon that gentleman sent a Mr. Fox to make another survey and ascertain the fact. Mr. Fox found that there were but 4125 acres, being one acre less than the quantity appearing by Hill’s survey.

Bewis Burwell (of Richmond) having also departed this life, Edward Carrington qualified as his executor; in which capacity, he brought suits and obtained judgments at law upon Nelson’s bonds, who thereupon obtained an injunction from the Superior Court of Chancery for the Richmond District, claiming a decree for the money which he contended was over-paid on account of his purchase ; alleging, also, that a part of the money intended for the discharge of the mortgage debt had been misapplied, by Nathaniel Burwell, and that a legal title had not been made him ; praying, therefore, that the said Edward Carrington, as executor aforesaid, and Wakelyn Welch, as surviving partner of Robert. Carey and company, be decreed to convey to him the land in question.

Edward Carrington, in his answer, said that the tract consisted of fertile low grounds and cleared lands, and of forest land of far inferior quality and value ; that the complainant was in possession of the original survey, which he received from Nathaniel Burwell before he took possession of the land ; that, in that survey, the quantity of each description of land in the tract was noted, and, by comparing it with the new survey, he must have discovered, as the fact was, that the low grounds and cleared land actually contained more acres than were stated in the said original survey, and that the deficiency *was wholly in the high forest land, which, as the respondent verily believed, was not worth more by the acre than one-tenth of the price of the low grounds; that, although 30s. per acre was the stipulated price for the whole track, it must have been founded on an estimate both of the relative value and quantity of high and low land ; and that if it had been known that there were more low grounds, and less high land, than the original survey had supposed, the said Burwell would have required, and the complainant would have given, a much higher price by the acre for the whole tract; indeed, the defendant believed that the said Burwell would have asked, for the whole,, as much, or more than the sum which the plaintiff was bound to pay according to the estimated quantity. The defendant insisted, that the said Nathaniel Burwell, having delivered to the said Nelson the original survey of the land, by which, it appeared that the quantity was 5141 acres, and it being well known that these old surveys generally contain more land that is stated therein, could not have intended that the said Nelson should, at any future and distant period of time, call for a re-survey ; (and that after having had an ex parte survey made ;) but it must have been his meaning and intention that the said Nelson might have his election, after viewing the land, and before giving *145bonds, as aforesaid, and not after ; that if, •on the ex parte survey made by the said Nelson, he had ascertained that the land contained more than the estimated quantity, the said Burwell could not have required payment for the surplus, which, by the terms of the agreement, he might have done in the event of a survey called for by the said Nelson ; that therefore the said Nelson was bound, in good faith, so long as his right of election continued, to make that election without having surveyed the lands; and that, after such ex parte survey, he had no right to call for a resurvey under the agreement, with such previous certainty of an issue favourable to himself. If the court should be of opinion, that under the contract, the complainant still had the rig'ht of election, (which he trusted would not be the case,) the defendant prayed that, instead of a deduction from the price, the contract might be *set aside, and the complainant compelled to accept his money and interest,

and to account for the profits of the said land ; it being certain that the contract was made under a mistaken opinion of the relative amount of the high and low lands, and that if the deficiency of the high land had been known to be so great, the said Burwell would never have agreed to sell, or the complainant expected to buy, at so low a rate as 30s. per acre.(1)

The defendant farther said, that Nathaniel Burwell, as executor of Lewis Burwell, had made sundry payments to persons having claims on his estate, which he had no assets to discharge, except the balance due from the complainant after satisfying the mortgage debt to Welch ; and these payments were made in full faith and confidence that the complainant was actually indebted to the amount specified in his bonds, and that the debt due from him was not subject to any alteration : the defendant therefore submitted to the court, whether the complainant, after having so long delayed calling for. a re-survey, could now do it, and thereby subject the estate of the said Nathaniel Burwell to a devastavit, without any fault or negligence on his part.

No answer appears to have been put in by Wakelyn Welch, surviving partner of Robert Carey & Co.

Sundry depositions were taken, from which it appeared that, when the land was viewed, for the first time, in the year 1794, by the complainant, it was shewn to him by Lewis Burwell, of Mecklenburg, who also expressed his approbation of the sale, as a good one for the estate of his testator ; that, on one occasion afterwards, the same Lewis Burwell went with the complainant to Richmond, for the purpose of meeting Nathaniel Burwell there, and executing a deed to Nelson for the land ; but Nathaniel Burwell did not attend ; *Lewis Burwell, on his return home, said he had forbidden Nelson from paying anymore money to Nathaniel Burwell, who had misapplied the payments. It was also proved, that the original survey, made by a Mr. Rountaine, was delivered to a Mr. Thomas Haskins (who lived as a manager on the land) for the purpose of being shewn to persons inclined to purchase ; that, some time after the contract it was in Nelson’s possession, and was delivered by him to John Hill, for the purpose of assisting in making his survey : but it was not proved that Nelson saw it before he concluded the contract.

With respect to the relative value of the low grounds and high lands, the testimony was in a great degree contradictory; — so as to leave it uncertain whether the excess in quantity of the low grounds, was equal in value to the deficiency in the high lands.

The chancellor directed an account of the payments to be stated; and the commissioners returned a report, by which it appeared that the balante due the defendants, (exclusive of costs,) was 16931.10s. 3d. with interest on 12721. 14s. lOd. part thereof, from the 25th of March, 1806 ; whereupon an interlocutory decree was made, that the injunction be dissolved, for that sum, and the cost at common law : but the effect of this decree was suspended until the “plaintiff” (2) should deposit in the hands of the clerk a release, sufficient in law, of the right, title, and interest of Wakelyn Welch, surviving partner of Robert Carey & Co. in the mortgage mentioned in the bill, to be held by the said clerk as an escrow, until the payment aforesaid should be fully made, and then to be delivered to the “plaintiff.”

Rrom this decree the plaintiff prayed an appeal, which was allowed.

George K. Taylor and Call for the appellant.

Wirt and Wickham for the appellees.

*January 20th, 1815,

*

Real Estate — Sale—Deficiency—When Relief Granted. —It may be stated generally, that the principle of relieving purchasers for deficiencies not imputable to variations of instruments and small errors in surveys, is never departed from except in cases of sales by the tract, where it clearly appears that the purchaser agreed to take the hazard of all deficiences upon himself, as in *Nelson v. Carrington,*4 *Munf.*332, or where, from exceptional circumstances, the rules should be departed from, as to the mode and measure of relief, as was the case in Yost v. Mallicote, 77 Va. 610; Riohaedson, J.,delivering the opinion of the court in Graham v. Larmer, 87 Va. 226. 12 S. E. Rep. 389.

Same — Sale by Acre — Deficiency—Compensation.— There is no doubt that when an estate is expressly sold at a certain price by the acre, and there is a deficiency in the number of acres conveyed, the purchaser will be entitled to a compensation for that deficiency, so, too, when the land is neither bought nor sold, expressly and professedly by the acre, but both parties in fixing the price for the land have regard to the quantity which they supposed the estate to consist of, the same rule as to liability for deficiency will prevail. In such case, the demand of the vendor and the offer of the purchaser are supposed to be influenced in an equal degree by the quantity which both believe to be the subject of their bargain; a ratable abatement of price will probably leave both in nearly the same relative situation in which they would have stood if the true quantity had been originally known, such sale must be considered as in fact, and according to the intention of the parties, though not expressly a sale by the acre. Trinkle v. Jackson, 86 Va. 241, 9 S. E. Rep. 986, quoting from Russell v. Keeran, 8 Leigh 14, and citing the principal case. See also, *foot-note*to Blessing v. Beatty, 1 Rob. 287.

†

Same — Same—Same—Same—Measure of Competí» sation. — The rule of compensation or abatement to be made for a deficiency, in case of a sale of land by the acre, is according to the average value per acre of the whole tract, unless particular circumstances require a departure from that rule. Watson v. Hoy, 28 Gratt. 713, citing the principal case. See also, *foot-note*to Blessing v. Beatty, 1 Rob. 287; *foot-note*to Nelson v. Matthews, 2 Hen. & M. 164.

‡

Same — Same—What Constitutes. — Graham v. Larmer, 87 Va. 227, 12 S. E. Rep. 389, cites the principal case as one whiph fairly exemplifies what constitutes a sale by the acre. Where the original agreement is for a sale by the acre, the contract will retain that character, until it clearly appears, that it has been subsequently changed by the parties. Carter v. Campbell, Gilm. 169. citing the principal case as authority for the proposition. Whether a contract of sale was ont of hazard as to quantity-in other words, whether it was a contract for the sale of a certain tract of land, whatever number of acres it might contain, or of a specified quantity depends upon the intention of the contracting parties, to be gathered from the terms of the contract and all the facts and circumstances connected with it. While contracts of hazard In such cases are not invalid, courts of equity do not regard them with favor. The presumption is against them; and while such presumption may be repelled, it can only be effectually so done by clear and cogent proof. Watson v. Hoy, 28 Gratt. 704, citing principal case. See further, *foot-note*to Keyton v. Brawford, 5 Leigh 39.

§

 Same — Same—Right to Survey. — Where there is a sale by the acre, a right of surveying exists, whether expressly reserved or not, and if no time is limited for making the election to survey, it may be done at any time before the whole business is *143closed between tbe parties. Crawford v. McDaniel, 1 Rob. 454, citing tbe principal case as authority. To the same effect, tbe principal case is cited with approval in Carter v. Campbell. Gilm. 169.

ǁ

 Chancery Practice — Lapse of Time — How It Defeats a Right. — Lapse of time is permitted, in equity, to defeat an acknowledged right, only on tbe ground of its affording evidence of a presumption that such right has been abandoned. It therefore never prevails, when such presumption is outweighed by opposing facts or circumstances. Massie v. Heiskell, 80 Va. 805; Coles v. Ballard. 78 Va. 147; Cottrell v. Watkins, 89 Va. 810, 17 S. E. Rep. 328; Mong v. Roush, 29 W. Va. 129, 11 S. E. Rep. 909, all citing principal case as authority. Estoppel from acquiescence must rest upon actual knowledge of tbe wrongful act; its injurious effect, and unreasonable delay. Green v. Thompson, 84 Va. 411, 5 S. E. Rep. 507, citing principal case. To tbe same effect, tbe principal case is cited in Tunstall v. Withers. 86 Va. 901, 11S. E. Rep. 565, on tbe subject of tbe abandonment of right, tbe principal case was also referred to in Hodgson v. Perkins, 84 Va. 712, 5 S. E. Rep. 701.

¶

 Same — Forfeiture—Relief from. — See monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457. Tbe principal case was cited for tbe proposition laid down in tbe seventh headnote in Hukill v. Guffey, 37 W. Va. 468, 16 S. E. Rep. 558.

**

Executors. — See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

††

Same — Renunciation of the Trust. — Tbe renunciation of an executorship need not be by matter of record, but may be proved by declarations *in pais,*or presumed from circumstances. Thornton v. Winston, 4 Leigh 157; Thompson v. Meek, 7 Leigh 428, 431, both cases citing tbe principal case as authority.

(1)

 Note. See Newland on contracts, p. 157. A mistake of the Vendor as to part of the land, is no ground for vacating the contract, if the Vendee still insists -upon its being performed. See also Idem, p. 434; Fox v. Mackreth, 2 Bro. Ch. cases, 420; a mistake as to the quality of th e land is no ground for vacating the contract; for that is an object of seeing and opinion. — Note in Original ISdition.

(2)

 Note. Tills appears to have been a mistake. The person intended by the chancellor was evidently the defendant in Chancery. who was plaintiff at law. — Note in Original lOdition.

the president delivered the following opinion of this court.

The court is of opinion that, by the agreement of the 12th of July, 1794, between the appellant and Nathaniel Burwell, one of the executors of Lewis Burwell the elder, if the same had contained no clause giving the appellant an election to survey, he would have been entitled to relief, in the case of the deficiency, which has appeared in the land thereby contracted to be sold; the known law of this court being, that, in cases of a sale by the acre, relief is to be granted for all deficiencies not reasonably imputable to the variation of instruments, or the like ; that this principle is not departed from, but in cases of a sale by the tract, the purchaser clearly agreeing to take the hazard of all deficiencies upon himself ; and that, in the case of a sale by an executor under the will of his testator, if the agreement be in this respect equivocal, the court would be inclined to consider it a sale of the former class, and not of the latter, so as to correspond with his clear and acknowledged power to sell by the acre, rather than countenance the dangerous principle that executors or other fiduciary characters should take upon themselves, by means of bargains of hazard, to *146jeopardize the interests confided to their care.

The court is farther of opinion, that this character of the agreement before us is ratified and strengthened, in relation to the appellant, by that provision thereof which expressly reserves to him the right to survey.

The court is farther of opinion, that there being no time mentioned in the contract, for the assertion of the election to survey in this case ; at the same time that that instrument has bound down the appellant to particular days, happening within a short time, in relation to concluding the bargain, taking possession of the land, and giving bonds for the purchase money thereof; the right of election aforesaid is not limited by the terms of the contract; on the principle that the expression of one thing operates to the exclusion of another; and that, consequently, no limit exists in the case before us, in relation thereto, except such as results from the ^general principles of equity, respecting the lapse of time; subject, however, to be affected by acts shewing an intention to abandon the right aforesaid, on the one hand, and to ratify and confirm the agreement, considered independently of the said right to elect, on the other. Whether, and how far such acts have taken place, in the case before us, will be presently more particularly considered.

The court is farther of opinion, that although the tract of land in the proceedings mentioned was liable, and was actually decreed to be sold, by the Superior Court of Chancery', in satisfaction of the mortgage therein also mentioned, yet the sale by the executors in this case having been for a full and fair price, and having also the consent and confirmation of the mortgages, or those claiming under them, there is no objection to its validity arising from the existence of the mortgage and decree aforesaid.

The court is farther of opinion, that as the written contract for the sale in question was signed by Nathaniel Burwell, one of the acting executors of Lewis Burwell the elder ; as the appellant was put in possession of the land by Lewis Burwell, of Mecklenburg, the other acting executor, who also manifested his assent to the sale by other acts proved in the'cause ; as the said sale was recognized and ratified in writing by Lewis'Burwell of Richmond, who, after the death of Nathaniel Burwell, the surviving executor of Lewis Burwell, the elder, became his executor; and was also recognized and ratified by Ldward Carrington, the executor of the last mentioned Lewis Burwell, by bringing the suits, the judgments in which are now in question ; the said sale was duly made by the executors who alone acted, and were consequently authorized to make it; and that, upon the facts proved in this cause, John Page and Lewis Burwell, of Richmond, will*be presumed to have renounced their right to administer the estate of Lewis Burwell the elder, as at the date of the sale in question, (if the said John Page was then in life,) which renunciation need not be shewn of record, under the decision of this court in the case of Geddy v. Butler, 3 Munf. 345.

*With respect to the loss of the right of election in this case, the court is of opinion that that was not determined on the 1st of August 1794 ; for that day was only given to the appellant to determine whether he would accede to the bargain or not; nor on the 25th of December, 1794, for that day is only agreed on, as the one on which the possession of the land was to be delivered, and the bonds and other assurances were to-be entered into : nor does the court perceive that the day assigned for the last payment of the consideration, necessarily determined the election, unless, at that time, the whole business had been concluded, and a right to the land made, or tendered, on the part of the appellees ; nothing being more clear, in the opinion of the court, than that, although the day of payment may have arrived, a purchaser is not bound to part with the purchase money, nor to make a final adjustment of the balance due for land purchased, unless a title is made, or tendered, agreeably to the terms of the contract. In this case, it is evident there were difficulties respecting the completion of the title, existing long after the said day of payment had arrived, and which even yet exist, amply sufficient to have justified the appellant in the belief that he would yet be in time to make that election, when the prospect of his getting a title to the land should have become less remote. As to any acts of abandonment of this right of election, on his part, none such are proved ; on the contrary, he is shewn to have been in quest of a surveyor, to enable him to exercise it, in the year 1799, and perhaps before, which was not long after the last day of payment had arrived. And, as to any acts confirming the agreement as a contract of sale in gross, the court is of opinion that none such are shewn to have taken place : no final conclusion of the business had been made ; no deed, or release of the mortgage had been tendered by the executors, or accepted by the appellant: that important circumstance, therefore, is wanting in this case, which was so emphatically relied on by this court, as an act of confirmation, if not the only act of confirmation, in the case of Jolliffe v. Hite, 1 Call, 301. As to the mere lapse of time which took place in this case, while it is ^probably well accounted for by the existence of the circumstances before mentioned, it is to be observed that such lapse is only permitted, in equity, to defeat an acknowledged right, on the ground of affording evidence of a presumption that that right has been abandoned; that it therefore never prevails when that presumption is outweighed by opposing facts or circumstances ; and that, in general, a much longer time is necessary, to found such presumption on, than had elapsed in the case before us.

The court will also remark that equity is not fond of taking advantage of forfeitures arising merely from a lapse of the time specified ; and that it is the constant course of courts of equity to relieve against such forfeitures on making adequate compensation. In the case before us, while there is nothing to affect the appellant, but the lapse of a few years, under circumstances, too, which, in his opinion, might have justified his delay ; —while he has not sinned against any given day prescribed to him by the other contracting party ; and who, by failing to prescribe *147such a day, has consented that this right should depend upon all the circumstances existing in the case ; the effect of a decision founded upon the lapse of time, in this case, would be to charge the appellant for nearly one-fifth more land than he actually got, or, in fact, contracted to purchase : — it would be to subject him to a bargain for the tract in gross, notwithstanding all the care he has taken to preserve his right to purchase by the acre ; and to set up a bargain of hazard in the case of a sale made by executors, too, in preference to a fair and certain sale by the quantity. As to the objection, that it was unfair and illegal for the appellant to make this election, after he had, by an experimental survey, in some degree ascertained the quantity of land, the court is of opinion, that a right to this, is inferable from the mere circumstance that time was given him to make the election. It could never be contended that, in judging concerning the exercise of that right, he would have been prohibited from viewing, or stepping off the land, for example: and those modes of ascertainment differ only in the degree of certainty from an experimental *survey. In principle there is no difference. Indeed, if a given tract of land were of a square and regular form, it would not be too much to assert, that nearly as much certainty might be obtained, in relation to its quantity, by stepping off the same, as by an actual survey: — -there is, therefore, nothing in the objection, independently of the consideration that the appellees had it in their power, before the sale, to have taken the same precaution, and, consequently, to have ensured themselves from any risk, or loss, arising from this conduct of the appellant.

With respect to the objection that the parties had Fontaine’s survey before them, at the time of the contract; and that the appellant is remunerated, for the loss of the highland, by the excess found by Fox’s survey, to exist in the low grounds ; — the court is of opinion, that the former fact is not proved in the cause ; and, consequently, that the inference predicated on it falls to the ground. But if that fact had been proved, the case of Nelson v. Matthews, in this court, 2 H. & M. 164, is a direct authority, that if a deficiency shall be found to exist, in the case of a sale, unattended by any particular circumstances, the average value of the whole tract is to form the rule, without regard to the circumstance that the deficiency was in this or that description of the land contained in the tract: and whatever may be the fact, as to the relative value of the high and low grounds contained in the tract in question, under the contradictory and conflicting testimony contained in the cause, (to say nothing of the act of frauds, as applying to the subject,) it is not shewn what the appellant’s own ideas on that subject were at the time of the contract, had Fontaine’s survey been even then before him.

As to the pretence, that the delay on the part of the appellant may have subjected Nathaniel Burwell, the executor, to a devastavit, that is neither proved in the cause, nor, if proved, would it be important. He undertook to know, and to abide by the true construction of the rights of the appellant, in regard to the premises ; and it is not for him to complain of a delay which, if it was not produced, in *part, by his own acts, might have been put an end to, by his exhibiting to the appellant a title to the land, and demanding a conclusion of the whole business respecting it.

Upon the whole, the court reverses the decree of the court of chancery ; and the following is to be entered as the decree of this court.

“It is ordered and decreed that the injunction be made perpetual; and that the appellee Nathaniel Burwell, administrator de bonis non of Lewis Burwell the elder, out of the assets in his hands yet unadministered,(1) pay to the appellant so much of the sum of 15001. 14s. 10d., as shall remain after deducting the judgments enjoined, with interest on the whole, or any part thereof, from the time the appellant shall appear to have been in advance ; the amount to be ascertained under the direction of the court of chancery : —and it is ordered and decreed that the appellant have leave to make the representatives of Lewis Burwell the elder, and the representatives of Robert Cary & Co., (the mortgagees of the premises,) parties, for the purpose of obtaining a title to the land purchased of the executors of the said Lewis Burwell the elder, and a release of the mortgage made to the said Robert Cary & Co. by the said Lewis Burwell in his lifetime.

(1)

 Note. Edward Carrington departed this life while this appea) was pending, ana Nathaniel Bur-well, the administrator de bonis non. was made a party by scire facias. — Note in Original Edition.