#### *Keyton’s Adm’x and Heirs v. Brawford’s Ex’ors and Heirs and Others.

February, 1843,

Richmond.

(Absent Green, J.)

Conveyance oí Land — Mistake in Description of Boundaries — Correction of. — In a conveyance of land, the description of the boundaries is erroneous, and includes land belonging to a third person ; but the erroneous description of boundaries arose from an innocent mistake, common to both vendor and vendee ; and the vendee takes and holds the land, as the vendor had held it, by the true boundaries: Held, the mistake in the conveyance should be corrected, but the vendee is entitled to no relief on account of that part of the land included within the boundaries inserted by mistake in the conveyance, which did not pass to the vendee by reason of the better title thereto of the coterminous holder.

Real Estate — Sale by Acre — Sale in Gross — Deficiency— Abatement from Purchase Money.* — A vendee of *25land, in a sale by the acre, is entitled to an abatement from the purchase money, in case of a deficiency of quantity; but in a sale of land in gross, a contract of hazard on both sides, the vendee is not entitled to relief, incase of deficiency; and whether the sale be a sale by the acre, or a sale in gross, is a question of intention of the parties to the contract, to be collected from all the circumstances of the transaction.

Sale of Land — Defective Title- Injunction against Collection of Purchase Money.† — The right of a vendee of land to have an injunction to protect him from payment of the purchase money, upon proof of an actual outstanding superiour title in a third per son, is now the established doctrine of our courts; yet his right to such relief must depend on the equity of his case.

David Trimble obtained a grant, dated the 31st October 1765, for 300 acres of land, lying in the then county of Augusta; and another grant, dated ihe 16th March 1771, for 140 acres; and in 1771, he procured an inclusive survey to be made of 430 acres, including the tract of 300 acres, but whether it included the other tract of 140 acres, or any part of it, was uncertain; nor did it appear, that any grant was ever obtained upon the inclusive survey. David Trimble held some land adjoining the 300 acre tract, but it did not appear whether this was part of the 140 acres, or of the inclusive survey.

*In April 1776, David Trimble sold the 300 acre tract, and the land he held adjoining thereto, to his brother *26James. James Trimble died in 1776, intestate as to these lands, and they descended to his son and heir, John Trimble; and he died about the year 1782, having by his will devised, that these lands should be sold, and the proceeds divided be+ween his sisters, Susan the wife of Samuel Steele, and Agness the wife of David Steele.

In 1768, George M’Knight procured a survey to be made of 75 acres of land, for which he had previously made an entry, and which he had taken possession of and improved, with the knowledge (as he alleged) of David and James Trimble; this land being, at the time of the entry, supposed to be coterminous with Trimble’s 300 acre tract; but (as he further alleged) upon running the lines of Trimble’s survey, those lines were found to be altogether vague and uncertain: the lines according to Trimble’s pretensions, contained much more than 300 acres, and included the 75 acres which M’Knight had entered for, taken possession of, and improved; whereas the lines of that survey, corrected as they ought to be, would not include the 75 acres which M’Knight had taken up. And in 1773, M’Knight exhibited a bill in chancery, in the general court, against David and James Trimble, insisting that the lines of their survey should be corrected, and that they should be restricted to their quantity of 300 acres, so that he might obtain a grant for his 75 acres. The defendants died before any decree was made in the suit, and no further proceedings were had in “it.

In 1781, M’Knight took up 160 acres of land contiguous to the 75 acres claimed by him. And in May 1781, he entered into a written agreement with John Trimble, who as heir at law of James Trimble then' held all the rights acquired by David Trimble in the lands in question ; whereby M’Knight agreed to convey 18 acres of the land then held by him, to John Trimble, and he put him in possession of the same in pursuance of the agreement, but made no conveyance thereof. There was little or no *reason to doubt, though there was no positive evidence of the fact, that this agreement of May 1781, was a compromise of the controversy • which was the subject of the suit brought by M’Knight in the general court in 1773; for M’Knight, thenceforth, continued to hold all the land he claimed in that suit, except those 18 acres; and John Trimble, and those claiming under him, held the 18 acres, and all the lands claimed by the Trimbles, except such as was included within the lines claimed by M’Knight.

Afterwards, in December 1781, M’Knight had surveys made of the two tracts of 75 and 160 acres; and in 1788, he obtained grants from the commonwealth.

After the death of John Trimble, Samuel Steele and Susan his wife sold the interest devised by his will to her in these lands, to Hugh Brawford. And John Trimble’s executors conveyed the land to Brawford and David Steele (the husband of Agness, the co-legatee of Susan) by deed dated the 2nd October 1804. This conveyance described the land as one parcel of 325 acres, and (the parties having been misled by a very erroneous survey, that had been made by a person unacquainted with the boundaries) conveyed them by metes and bounds, which were wholly variant from the lines described in the grants to David Trimble, and included a large part of the land claimed, and then actually held, by M’Knight. Yet David Steele and Brawford took and held possession, as tenants in common, according to the true lines, as established by the grant to David Trimble, and the compromise between M’Knight and John Trimble.

In 1804, a suit was brought by David Steele and Brawford against M’Knight, in the superior court of chancery of Staunton, for a specific execution of his agreement with John Trimble of May 1781; praying, that he might be compelled to convey the 18 acres therein mentioned to them. The chancellor decreed specific execution, according to the prayer of the bill; and M’Knight, in pursuance of the decree, conveyed the 18 acres to Steele and Brawford, by deed dated the 10th of February 1807.

*In September 1813, Brawford sold and conveyed to Bernard Keyton, for 1000 dollars, all his undivided moiety of the lands held in common with David Steele, describing the lands, as being one tract of 325 acres, conveyed to them by John Trimble’s executors, and another of 18 acres conveyed to them by M’Knight. This deed, in describing the boundaries of the 325 acres, pursued the erroneous boundaries mentioned in the deed of John Trimble’s executors: yet Keyton (whose wife was one of the heirs of David Steele who was now dead) took and held the lands, in common with the other co-heirs of Steele, according to the lines by which Steele and Brawford had held them. The erroneous description of the boundaries in this deed, was owing to a mistake, common to both parties, into which they were led by the erroneous description of them in the deed from John Trimble’s executors. Keyton lived near the lands, and was well acquainted with them: Bradford lived at some 'distance from them, and had much less knowledge of them.

The 1000 dollars purchase money, which Keyton was to pay to Brawford, was payable in instalments; and some of the instalments were paid to Brawford in his lifetime. He died in 1817; and Keyton died about the same time.

In June 1818, while a part of the purchase money contracted to be paid by Kej’ton to Brawford, remained yet unpaid, the administratrix and heirs of Keyton exhibited a bill in the superiour court of chancery of Staunton, against the heirs of M’Knight, the executors and heirs of Brawford, and the heirs of David Steele; wherein they alleged — 1. That a considerable part of land held by M’Knight’s heirs, under the grants to him of April 1788, was included in the elder grants to David and James Trimble of October 1765 and March 1771; that M’Knight’s heirs had no title to so much of the land held under the junior grant to their ancestor, as was included in the elder grants to the Trimbles, and in the conveyances from John Trimble’s executors to *27David Steele and Brawford, and from Brawford to Keyton ; and they claimed the same under the elder *grants.

2. That it was the intention of John Trimble to devise, by his will made in 1783, all the lands which he inherited from his father James, which James boitght from his brother David, and which David was entitled to under his grants of October 1765 and March 1771: that it was the intention of Samuel Steele and Susan his wife, to sell and convey to Brawford, all their interest in the lands, devised by John Trimble to be sold, and the proceeds divided between Susan and Agness Steele: that it was the intention of John Trimble’s executors, by their deed of October 1804, to convey to David Steele and Brawford, in undivided moieties, all the lands that had been owned by the Trimbles, and to which their testator was entitled, though that deed (through mistake, arising from the ignorance of the parties as to the true boundaries and title papers, the lands being then altogether in woods and unsettled, and the parties being misled by an erroneous survey) conveyed the lands by a very erroneous description of the boundaries: and that it was the intention of Brawford to sell and convey to Keyton, his undivided moiety in all the lands to which he and David Steele’s heirs were justly entitled in common, though his deed to Keyton followed the mistaken and erroneous description of the boundaries contained in the deed from Trimble’s executors of October 1804. And they prayed, that the mistakes in the description of the boundaries, in the deed from Brawford to Keyton, should be corrected, and that Brawford’s heirs should be decreed to convey to Keyton’s heirs, Brawford’s undivided moiety in the lands, according to the true boundaries thereof, as well those which had been actually held in possession by David Steele and Brawford, as what should be recovered from the heirs of M’Knight. They did not expressly claim an abatement from the purchase money contracted to be paid by Keyton to Brawford, for any deficiency in quantity that might be discovered; but they asked an injunction, to restrain Brawford’s executors from proceeding to recover the balance of the purchase money, until the just boundaries of the lands should be ascertained, and a perpetual injunction, *in case the heirs of M’Knight should succeed in holding any part of the lands intended to be sold by Brawford to Keyton. 3. As against the heirs of David Steele, the bill prayed a partition between them and the heirs of Keyton, so soon as the conflicting rights to the lands should be adjusted, and the lands to be divided, accurately ascertained.

The executors and heirs of Brawford expressed their willingness, that the mistakes in the deed of their ancestor to Key-ton (which, they said, was prepared under the directions of Keyton himself) should be corrected. But they insisted, that their ancestor contracted to sell his undivided moiety in the lands to which he and David Steele were entitled in common, for 1000 dollars in gross, whatever might be the true boundaries or quantities of these lands; that it was not the intention of Brawford to sell, or of Keyton to purchase, any of the land held by M’Knight; and that they were entitled to the whole purchase money, without abatement on account of any conflicting claim of M’Knight’s heirs; since M’Knight was in possession of all the land he now claimed, at the time of Brawford’s sale to Keyton, and this was well known to Keyton, who was also well acquainted with the lands, and the true and ancient boundaries by which they had in fact been held.

It is unnecessary to state the defence of M’Knight’s heirs; the chancellor, very early, dismissed the bill as to them, and the propriety of that decree hardly admitted of doubt. The only controversy was that between the heirs of Keyton and the heirs of Brawford.

The deed from Brawford to Keyton described the lands as consisting of two parcels ; one conveyed to David Steele and Brawford by John Trimble’s executors, containing 325 acres, and the other conveyed to them by M’Knight containing 18 acres; in all, 343 acres. By surveys, made under orders of the chancellor, it appeared, that the land embraced within the boundaries of the grant of 300 acres to David Trimble of October 1765, (according to the lines of that grant contended for by Keyton’s heirs) exclusive of *the land held by M’Knight under his conflicting claim, was only 271 acres and a half; and that the parcel conveyed by M’Knight to Steele and Brawford was 19 acres and a quarter; in all, only 290 acres and three quarters; so that, as Key-ton’s heirs alleged, there was a deficiency in quantity of 52 acres and a quarter. And as this 52 and a quarter acres was included within the boundaries described in the deed from Brawford to Keyton, and lost by reason of the conflicting claims of M’Knight, therefore, at the hearing of the cause, they insisted on a rateable abatement from the purchase money for the deficiency.

But it also appeared from a survey filed with the bill, that there was another parcel of 78 acres lying contiguous to the tract of 290 acres and a half; which, whether it was parcel of David Trimble’s lesser grant of 140 acres, or (more probably) of his inclusive survey of 430 acres, or by whatever right it was claimed, had been in fact held by David Trimble, by James Trimble under him, by John Trimble heir at law of James, by David Steele and Brawford, and by Steele’s heirs and Keyton after his purchase from Brawford. Counting these 78 acres (and Brawford’s heirs insisted they ought to be counted) as part of the lands sold by Brawford to Key-ton, the whole quantity was above 368 acres. But Keyton obtained a grant from the commonwealth for the 78 acres; and his heirs claimed that parcel under that grant, though there was parol evidence which rendered it very probable, that Key-ton himself had considered it as part of the land he bought of Brawford, and obtained *28the 'commonwealth’s grant for it only to perfect the title.*

The chancellor, by his decree, first settled the boundaries of the lands to which Key-ton’s heirs were entitled, under his purcháse from Brawford, by reference to the surveys: and then declaring, that, as the boundaries described in. the deed' from John Trimble’s executors to Steele and Brawford, *were, acknowledgedly, wholly erroneous, owing to the ignorance of the parties as to the actual boundaries; as the boundaries in Brawford’s deed to Keyton were also erroneous, being founded on the previous mistakes in the deed from Trimble’s executors; and as the bill itself alleged these mistakes, accounted for them, and prayed the correction of them; therefore, the heirs of Brawford were not liable for any land embraced within the mistaken boundaries described by their ancestor’s deed to Key-.ton, and not included within the true lines as ascertained and established by the court; and, therefore, he dismissed the bill as to Brawford’s heirs, with costs. From this decree Keyton’s administratrix and heirs appealed to this court.

Johnson, for the appellants.

Leigh, for the appellees.

*

 Real Estate — Sale in Gross — Effect.—Where a sale of land is clearly one in gross, it is a contract of *25hazard, in which each party takes on himself the risk of excess or deficiency, and there can be no relief afforded to either, whatever may be the actual quantity in the tract sold. Russell v. Keeran, 8 Leigh 14, citing the principal case. To the same effect, see the principal case cited in Cunningham v. Millner, 82 Va. 581; Trinkle v. Jackson, 86 Va. 243, 9 S. E. Rep. 986: Reed

In Crislip v. Cain, 19 W. Va. 438, the court, through Judge Green, enters into a criticism of the Virginia cases on the subject under consideration. For the conclusion reached by the court, *see footnote*to Watson v. Hoy, 28 Gratt. 698; *foot-note*to Pendleton v. Stewart, 5 Call 1; *foot-note*to Quesnel v. Woodlief, 6 Call 218. In Crislip v. Cain, the principal case was cited and discussed on pp. 183, 520, 521, 522, 523, 526, 530, 531, 543, 556. See also, *foot-note*to Jollife v. Hite. 1 Call 301.

Same — .Sale by Acre — Salean Gross — Question of Intention-Presumption. — Whether a sale of land is one of hazard as to the quantity — in other words whether it is contract for the sale of a *certain tract of*land, whatever number of acres it may 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, and will be enforced if clearly established, yet courts of equity do not regard them with favor. The presumption is against them, and can be repelled only by clear and cogent proof. Consequently, a contract will be construed to be a contract by the acre whenever it does not *clearly appear*that the land was sold by the tract, and not by the acre. And so, where the contract is for the payment of a gross sum for a tract of land, upon an estimate of a given quantity, the presumption is that the quantity influences the price to be paid and that the agreement is not oiie of hazard. These propositions have been affirmed in numerous cases. See Watson v. Hoy, 28 Gratt. 704; Norfolk Trust Co. v. Foster, 78 Va. 419; Hendricks v. Gillespie, 25 Gratt. 201; Blessing v. Beatty, 1 Rob. 303. 304; Camp v. Norflect, 83 Va. 381. 5 S. E. Rep. 374; Trinkle v. Jackson, 86 Va. 243, 9 S. E. Rep. 986. all citing the principal case as authority. For other cases upholding these propositions, see cases cited *in foot-note*to Blessing v. Beatty, 1 Rob. 287; *foot-note*to Caldwell v. Craig, 21 Gratt. 132; *foot-note*to Watson v. Hoy, 28 Gratt. 698.

In Crislip v. Cain, 19 W. Va. 531, Judge Green delivering the opinion of the court, says: I reg'ard the remarks of -Judge Tucker in this case (¿. *e.*the principal case), which I have quoted, to the effect that courts do not favour a construcción, which will render a sale of land as a sale in gross or contract of hazard, but will rather take it, that a contract is by the acre, whenever it does not clearly appear, that the land was sold by the tract and not by the acre, as having no application to a case, where the contract is in writing, and the intention of the party to sell either by the acre or in gross is clearly expressed, asitwasinthe case before him, and as it is in almost every case, as the phrases used in deeds or contracts for the sale of land are usually set phrases, which have been over and over construed by the courts, so that there is *no*room for favoring any construction, and indeed no room left for construction.

Sale of Land — Effect in Contract of the Words “Containing so Many Acres.” — Where the contract does not specify the number of acres sold or contracted to be sold otherwise than by the general words “containing so many acres” this can hardly be looked on as a warranty of the quantity, but rather as a matter of description. Russell v. Keeran, 8 Leigh 16, citing the principal case.

And in Caldwell v. Craig, 21 Gratt. 140, it is said : “In the present case the contract is for the sale of a tract of land ‘supposed to contain one thousand acres, more or less.’ Such language cannot, upon any fair and reasonable construction, be understood as a positive affirmation of quantity. That it is to be regarded as mere matter of description, and not of itself giving the character of the contract is settled by the case of Russell v. Keeran, before cited (8 Leigh 16), and *Keytons v.*Brawfords, 5 *Leigh*48 ; Stebbins v. Eddy, 4 Mason’s R. 414 ; Pendleton’s Ex'or v. Stewart, 5 Call 1; Winch v. Winebeck. &c., 1 Ves. and Bea. R. 375.”

Tn Crislio v. Cain, 19 W. Va! 522, 530, Judge Green, speaking for the court, said that Judge Tucker, throughout his opinion in the principal case, confounds and treats as the .same thing a warranty by the vendor of the number of acres named in the deed and a sale by the acre, but that obviously they are widely different.

†

 Same — Defective Title — Injunction against Collection of Purchase Money. — Lovell v. Chilton, 2 W. Va. 410, was a suit to enjoin the sale of land under a deed of trust securing the purchase money thereof on account of defect in the title to part of the land. Maxwedd. J., in delivering the opinion of the court, said : “It seems to me, therefore, that the complainant thus made out a case showing clearly that Chilton’s title was defective, and was entitled to have the sale of the land enjoined until the title could be settled. *Keytons v.*Brawfords, 5 *Leigh*39; Ralston v. Miller. 3 Rand. 44.” See principal case also cited to this effect in Heavner v. Moran, 30 *W.*Va. 343, 4 S. E. Rep. 411. See further, *foot-note*to Faulkner v. Davis. 18 Gratt. 651.

See generally, on thesubjectof injunctions, mono-graphic ?¿o¡íé on “Injunctions” appended to Clayton v. Anthony, 15 Gratt. 518.

*

 The provisions of the act of 1797, ch. 10, 1 Rev. Code, ch. 86. § 40, p. 330, rendered it unnecessary to obtain this errant: the title was complete without it. — Note in Origin al Edition.

TUCKER, P.

I think it abundantly clear, that the appellants are not entitled to relief, on the ground of the superiour title of the M’Knights to a portion of the tract comprehended, as it is said, within the boundaries set forth in Brawford’s deed to Keyton. Admitting the right of a party to injoin the payment of purchase money, upon proving an actual outstanding superiour title in another, which seems no.w to be the well established principle of our courts. (3 Rand. 44), I am well satisfied, that there is no such ground for relief in this case, because the vendor never contemplated selling that portion of land, which lies within the boundaries claimed by the M’Knights.

It sufficiently appears, that the dispute between David and James Trimble and George M’Knight, which was the subject of the suit brought by M’Knight against them in the general court in 1773, was compromised by the agreement between M’Knight and John Trimble of May 1781. (Here the president stated the circumstances on which he founded his opinion on this point.) Thenceforth, ever since, the parties have held by the lines as settled by that compromise; and from that time, the grant to David Trimble of *October 1765, must be taken to have been limited by those lines; for this court has decided, that the agreed boundaries between parties shall be sacredly respected, as the real and true boundaries of their lands, whatever evidence may be offered to the contrary.

Such being the established boundary of Trimble’s grant, we are told by the bill, that it was the object of John Trimble’s executors, in 1804, to convey to Steele and Brawford, all the land which David Trimble had owned &c. ; that Keyton purchased Brawford’s moiety of the land so conveyed, and that Brawford intended to convey such moiety; but that the land was altogether in Woods, when the deed was made by Trimble’s executors . to Steele and Brawford, the boundaries and title papers were in a great measure unknown to the parties,, and thus the description of the boundaries in that deed, was altogether erroneous. Now, it is true, that the bill does not expressly assign the embracing of M’Knight’s lands in the courses of the deed, as one of the. errors committed; but they shew, that the parties were in a state of ignorance as to the boundaries, Which led to the mistaken description; and it is now ascertained, that their grossest mistake was in comprehending lauds which had, more than twenty years before, been given up as not within their boundary. I am, therefore, well satisfied, that the deed from Trimble’s executors to Steele and Brawford, and that from Brawford to Keyton, are both erroneous, in this particular; and as Keyton’s representatives come here to ask equity, they must submit to the correction of that error; and the rather, if Key-ton was well acquainted with the title, and had the deed prepared which was afterwards executed by Brawford and wife.

The next ground on which relief is asked, is the alleged deficiency in the quantity of the land sold. This depends upon the question, whether the sale was in gross or by the acre; for if it was a contract of hazard, in which each party took upon himself the risk of excess or deficiency, there can be no relief afforded to either, whatever may be the actual quantity in the tract sold.

*Questions of this character have frequently been before this court, and nothing is better established than the law of the subject, when the real intention of the parties .in the contract, is once ascertained. But this intention it is sometimes difficult to discover, from the carelessness of the parties, from the use of equivocal expressions, and from the glosses which are given to the transaction by the testimony of witnesses.

Before going into an examination of the probable intention of the parties, in this case, I shall premise a few remarks on the subject. Contracts of hazard, such as tho§e we are now considering, never have been discountenanced by our law. Where they are clearly established, they are valid, and will be respected and enforced, if fair and reasonable. But, though such a contract of hazard is valid, it is not readily to be presumed, that the parties designed to enter into such a contract, unless it is clearly sustained by the facts. The courts will not favor such a construction ; but they will rather take it, that a contract is by the acre, whenever it does not clearly appear, that the land was sold by the tract, and not by the acre; Hundley v. Lyons, 5 Munf. 342. Nor will they presume, that an executor, who ought not to sell in gross, has done so, unless the fact be clearly established; Jolliffe v. Hite, 1 Call 301. Nor do I think it should be readily presumed, that *29a vendee, who is ignorant of the lines and of the quantity of land, would enter into such a contract of hazard with the vendor, who may fairly be supposed to know every thing about it; since, in such a contract, the hazard is only on one side.

In the present case the deed itself and the circumstances, afford the only evidence of the character of this purchase. The deed is for a moiety of two tracts of land, the first containing 325 acres, and the second containing 18 acres. Whether the specification of the number of acres here, should be regarded merely as matter of description, or in the stronger light of a warranty of quantity, may well, perhaps, admit of a difference of opinion. I have looked upon such mention of quantity, as, in general, matter of description only, and not of itself as giving the character of a contract *by the acre to the transaction. I am satisfied, that such a thing is rarely dreamed of by those who execute deeds, usually filled up according to a formula, without the slightest reference to the real contract of the parties.

In the present case, the circumstances are very strong to shew a purchase in gross, instead of by the acre. The presumption against a vendee’s being willing to make such purchase, is rebutted by the fact, that Keyton was himself interested in the estate, and probably knew as much or more of it than Brawford. The tract was in woods and unsettled: its lines were unascertained, and but little known to the contracting parties: the value by the acre was small: no previous attempt was made to ascertain the lines or quantity, and no provision for a survey, preparatory to a final adjustment of the purchase money, though the parties were very uninformed about the land: the conveyance was of 325 acres instead of 300, as set forth in the grant under which the land was claimed; whence I infer that an estimate of quantity was made between the parties, in the deed from Trimble’s executors, and adopted by Keyton and Brawford: the price by the acre is not stated, but a round sum of 1000 dollars given for this body of unsettled land : — these facts all go to satisfy me, that Keyton took the risk of the purchase on himself. In 1 Call 325, president Pendleton speaking of Quesnel v. Woodlief, says, “the original contract, there, was not in proof, but it is evident to me, that it was for a specific quantity, since the purchase money amounts to 800 acres at ^'4. per acre.” The converse of the proposition may not be equally conclusive; but it is persuasive evidence, that a contract was not by the acre, when the purchase money is not an equimultiple of the number of acres. What for instance was the price per acre of this purchase, if the contract was by the acre? It would be 5 dollars 83 cents, and thirty-one three hundred and forty-third parts of a cent. If in addition to the tracts described as 325 and 18 acres, he really did get also from Brawford, the 78 acres which have been re-entered, it seems very probable, that he bought the whole of these various claims and ^'interests, such as they were, for the gross and lumping sum of 1000 dollars, without any intention of being responsible for excess above the quantity represented in the deed, or any hope of remuneration for deficiencj7. When to this we add the frame of the bill, which does not go for an alleged deficiency, and the late date at which it was filed, namely, in June 1818, five years after the purchase, we may very well doubt, whether Keyton himself or his heirs ever conceived, that Brawford was responsible for a deficiency, or that it was necessary to have a survey of the land, before it could be ascertained what sum would be due for the purchase money. Their object was to get the land held by M’Knight, or to be paid for the loss of it, as Brawford’s deed had comprehended it by mistake: and it is not until after those points are decided against them, that they set up the new (and, I think, incompatible) claim, that this was a contract for a specific quantity of land. I think the decree ought to be affirmed.

The other judges concurred.

Decree affirmed.