#### *Bierne and Another v. Erskine.

February, 1834,

Richmond.

(Absent Gbeen, J.)

Real Estate — Sale by Acre — Excess*—Compensation for —Parol Evidence, † — By articles for sale of land, vendor contracts to sell and convey to vendee, a tract of land, particularly described, containing 100 acres, for $2000, payable in instalments; both vendor and vendee being well acquainted with the tract, and believing it to contain 100 acres, and no-more; upon survey afterwards made at vendee’s instance, it turns out to be 113 acres; and there is parol evidence, that the intent of the parties was a sale by the acre at $20 per acre, and that on vendor offering to convey land to vendee as containing 100 acres, vendee insisted on a survey to ascertain quantity before he should complete the purchase, in which vendor acquiesced: Held, *331. til at though the parol evidence of the Intent of the parties is inadmissible to explain or vary the written articles, the parol evidence touching their conduct as to the execution of the contract, is admissible; 2. that, considering the belief of both parties that the land contained only 100 acres, the articles import a sale by the acre; and 3. that the vendee having insisted on a survey, and the vendor having acquiesced, vendee on this ground is bound to pay for the excess of 13 acres: there fore, vendor is entitled to payment for the excess at $20 per acre.

Michael Erskine, late of Monroe, in his lifetime, intending to give his son William a hundred acres of land, part of the land on which he lived, had a parcel surveyed and laid off for him, which appearing by the survey to be only ninety-four acres, he caused another parcel of six acres, by estimation of two of his neighbours, to be laid off and added to the other parcel of ninetj'-fotir acres, in order to complete the quantity of a hundred acres. The father put the son in possession of both parcels thus laid off for him; and then devised the same to him by his will, by particular description and reference to the boundaries, as containing a hundred acres. William Erskine held the land under his father’s will, for many years, and then contracted to sell it to Michael Alexander; Alexander, at the time of the contract, knowing the land as well as Erskine, the boundaries *of it, and the history of the title, and both parties, without question, supposing it to contain a hundred acres, and no more.

The contract between them for the sale and purchase of the lands (so far as material in this controversy was in these words : “Article of agreement between W. Erskine and Michael Alexander, both of Monroe county, witnesseth — that the said Erskine hath this day bargained and sold unto the said Alexander, his tract of land near Union, whereon A. M. now lives, joining the lands of M. E. &c. containing 100 acres, for the sum of 2000 dollars, to be paid in one, two and three years, in equal annual instalments.”

Possession of the land was delivered by Erskine to Alexander, immediately after the contract was made. But before an3T thing further was done in execution of it, on either part, Alexander, with Erskine’s knowledge and consent, sold the land to Andrew Bierne, who took upon him the performance of the contract on the part of the vendee.

Sometime afterwards, and before the purchase money was paid, Erskine, still supposing the parcel of land to be only a hundred acres, offered to make a conveyance of it, as containing that quantity, to Bierne; upon which (as was clearly proved Bierne asked Erskine, whether the land had ever been surve3Ted? Erskine answered, that H. A. had run off ninety-four acres of it, and his father had got A. E. and H. C.' to lay oil six acres more, but that it had not been surveyed, all together, that he knew of. And then Bierne said, that he was going to Alabama in a few days, and he wished Erskine would let the matter stand till he should return home, and have it surveyed; that he wished to know, whether there were a hundred acres of it, or not: to which Erskine assented.

Erskine had a survey of the land made, by which it was ascertained that it contained a hundred and thirteen acres; upon which he required Bierne to pay him for the surplus thirteen acres, at the rate of 20 dollars per acre, insisting that the contract was for a sale of the land by the acre. *Bierne insisted, that it was a sale in gross, of the whole parcel of land for 2000 dollars, which he paid, and refused to pay for the surplus thirteen acres.

Whereupon, Erskine exhibited his bill against Alexander and Bierne, in the superiour court of chancery of Greenbrier, praying a specific execution of the contract according to his interpretation of it, and that the defendants should be compelled to pay him for the surplus thirteen acres at 20 dollars per acre, and exhibiting the survey that he had had made, by which it appeared that the parcel contained a hundred and thirteen acres.

Alexander and Bierne, in their answers, both insisted, that the contract was a sale in gross, of the whole parcel, whatever might be the quantity, for 2000 dollars, and that the whole of the purchase money having been paid to the vendor, they were entitled to a conveyance from him, without paying for the surplus thirteen acres. Neither of them questioned the accuracy of the survey exhibited by Erskine with his bill, or controverted the fact that the parcel contained a hundred and thirteen acres.

The facts of the case, as above stated, were proved. And there was parol evidence also adduced to prove, that Erskine and Alexander, both, in the treaty between them on the subject, intended a sale and purchase by the acre.

The survey exhibited b3’ Erskine with his bill, appeared to have been made by his direction, without noticed to Alexander or Bierne: yet the defendants did not ask that a new survey should be made, and none was ordered.

The chancellor, holding that Erskine’s interpretation of the contract of sale was right, — that it was a sale by the acre,- — decreed, that the defendants should pay him for the surplus thirteen acres at the rate of 20 dollars per acre, and that he, on receiving such payment, should make a conveyance of the title. Prom this decree, the defendants appealed to this court.

The cause was argued here, by the attorney general for the appellants, and Johnson for the appellee.

*34*3. The principal question was, Whether the agreement itself, without reference to the conduct of the parties, imported a sale by the acre, or a sale in gross, in which the vendee took the hazard of a defect, and the vendor that of an excess, in the quantity?

2. The attorney general insisted, that parol evidence was not admissible to explain the written agreement between the parties, and that the court must look to that alone, to ascertain the terms of the contract. And Johnson admitted, that the parol evidence of what passed between Brskine and Alexander, in the treaty between them which resulted in the agreement, ought to be disregarded; but he said, that the proof as to the conduct of the parties, in regard to the execution of the agreement after it was made, was proper to shew their understanding of it; and that Bierue’s demand of a survey, andErskine’s acquiescence in it, plainly evinced that they both understood it to be á sale by the acre.

3. The attorney general objected, that the survey exhibited with the bill, on which the chancellor founded his decree, was an ex parte one, and that he ought to have ordered a survey, to ascertain the quantity with accuracy, before he proceeded to decree the purchase money for the alleged excess of quantity.

Johnson answered, that the objection was too late in this court: the appellants, in the court of chancery, nowise questioned the accuracy of the survey exhibited by the appellee with his bill; they had controverted his claim there, upon an admission, in effect, that there was an excess of thirteen acres; they did not ask for a new survey.

*

ReaI Estate — Sale by Acre — Deficiency—Compensation. — If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation; and the rule is the same, although the land is neither bought or sold professedly by the acre. Trinkle v. Jackson, 86 Va. 240, 9 S. E. Rep. 986, citing the principal case; Nelson v. Carrington, 4 Munf. 332 ; Harrison v. Talbot, 2 Dana; Grant v. Conells, 6 Monroe 281; Hoffman v. Johnson, 1 Bland 109; Marbury v. Stonestreet, 1 Md. 147, and Tarbell v. Bowman, 103 Mass. 341.

See also, *foot-note*to Keytons v. Brawfords, 5 Leigh 39. and *foot-notes*there cited.

Sale of Land — Deficiency—Equitable Relief. — See-principal case cited in Blessing v. Beatty, 1 Rob. 299; Crislip v. Cain, 19 W. Va. 534, 535, 537 (criticism of 1 Rob. 299); Blessing v. Beatty, 1 Rob. 301; Crislip v. Cain, 19 W. Va. 540 (criticism of 1 Rob. 301).

See also, *notes*referred to in *foot-note*to Keytons v. Brawfords, 5 Leigh 39.

Real Estate — Sale by Acre — What Constitutes. — As cases exemplifying what constitutes a sale by the acre, *Bierne v. Erskine,*5 *Leigh*59, Nelson v. Carrington, 4 Munf. 332, and Carter v. Campbell, Gilm. 159, were cited in Graham v. Larmer, 87 Va. 227, 228, 12 S. E. Rep. 389.

See also, *notes*cited in *foot-note*to Keytons v. Brawfords, 5 Leigh 39.

†

Same — Same—Parol Evidence. — Where in a sale of land, the words describing the quantities of land specify the *exact*quantities unqualified by the words “more or less,” or any other words, if the price is an *exact*multiple of the *exact*number of acres named, the sale, which would otherwise be clearly a sale in gross, will thereby be rendered ambiguous. It will still be *prima facie*on the face of the deed a contract of sale in gross and not by the acre, but being ambiguous it may be shown.to be a contract of sale by the acre, by proof of the circumstances surrounding the sale and the subsequent *conduct*of the parties in carrying it out; but all-other parol evidence will be carefully excluded, as. the character of a written contract can never be explained in this way by the oral declarations of the parties made either before, at the time of, or after, the sale. As holding to this effect, the principal case is cited with approval in Depue v. Sergent, 21 W. Va. 334; Crislip v. Cain, 19 W. Va. 523, 524, 527, 528, 529, 530, 531, 532, 543, 549, 550.

In Caldwell v. Craig, 21 Gratt. 138, Judge Staples, in delivering his opinion, said that many cases had been before the court involving the doctrine of compensation upon contracts for the sale of real estate ; and that, in many of them, parol evidence had. been received of the true understanding of the parties, whether a sale in gross or by the acre was. intended, notwithstanding the existence of written articles evidencing the contract, and he cites. Jollife v. Hite, 1 Call 301; Quesnel v. Woodlief, 6 Call 218; Fleet v. Hawkins, 6 Munf. 188; Grantland v. Wight, 2 Munf. 179; Russell v. Keeran, 8 Leigh 9, as. cases in which such evidence was admitted. Continuing, the Judge says ; “The only case I have seen in which a doubt is expressed of the propriety of receiving parol testimony in this class of cases, is that of *Bierne v. Erskine,*5 *Leigh*59. There the contract was for the sale of a tract of land containing one hundred acres, for the sum of two thousand. *33dollars. Judge Caer said It -would be wrong to let in parol evidence to explain or alter the written agreement, which must be taken uninfluenced by such evidence. The principle on which this case was decided, is obvious. There was no question of mistake; the terms employed were not merely descriptive of the land, but constituted a positive representation of quantity, which the vendor was bound to make good. Parol evidence showing that no such representation was in fact made or intended, would have been contradictory of the deed in its very terms and according to its legal effect.” See also, *foot-note*to Quesnel v. Woodlief, 6 Gall 219.

CARR, J.

It would be wrong to let in parol evidence to explain or alter the written agreement for the sale of the land. We must take the agreement uninfluenced by that evidence, since there is no allegation in the pleadings of fraud, surprize or mistake. Yet we may resort to the cotemporafy and subsequent acts of the parties themselves (as' this court has said in several cases) to shew how they understood the contract. And I will remark here, that I consider Bierne *as so far identified with Alexander, — as having so completely taken his place, — that his acts may be taken as the acts of a party.

The contract itself impresses me with the idea, that both buyer and seller thought, that the one was selling and the other buying a hundred acres of land at 20 dollars per acre, making 2000 dollars for the hundred acres. Erskine sells his tract containing a hundred acres. This seems to me, not a description, but a representation of quantity, which would bind him to make good the quantity of a hundred acres, for 2000 dollars. If so, the obligation ought surely, to be reciprocal; binding Alexander to pay for any excess. The whole conduct of Bierne shews, that he understood the sale to be by the acre: he refused a deed without a previous survey, and it was only after the survey shewed an excess, that he took the opposite ground.

I do not think it necessary to send back the case for another survey. There was not the shadow of a contest in the court below on that point. The parties received the survey, and went to hearing without exception to it; it is too late to take it here. I am for affirming the decree.

CABELE and BROOKE, J., concurred.

TUCKER, P.

I think the decree clearly right. ' I consider the original contract between the parties, as having been entered into under an innocent mistake of both as to the quantity of land contained in the tract conveyed. That tract was held by Erskine under his father’s wil*, and Alexander so understood it to have been. By that will, a hundred acres were devised to Erskine, which it seems had been carefully laid off for that quantity; for ninety-four acres were laid off first, and then six acres more were laid off to complete the quantity which the father designed to give to this son. No wonder, then, that he supposed he held exactly a hundred acres; and no wonder that Alexander also so understood it. It was not a case in which hazard was incurred or eschewed by either party. It. was a case (as the whole transaction clearly proves) in which each took -'it for granted, that there was that identical quantity, and in which, therefore, as there proves to be an excess, it appears there was an innocent mistake on both sides. Against this, either was entitled to relief, according to well received principles, and on the authority of Quesnel v. Woodlief, now well reported 6 Call 218.

If the case was doubtful in this view of it, it is clear in another. Erskine being prepared to make a deed before the excess was discovered, Bierne, who was at that time the party concerned, inquired of Erskine whether it had been surveyed; and learning that it had not been surveyed, all together, he said, he was going to Alabama, and. wished Erskine to let it stand till he returned home, and could have it surveyed; that he wished to know whether there was a hundred acres of it or not. Why? What had the ascertaining of that fact to do with making the deed? It must be understood, as conveying his interpretation of the contract, that there was to be a hundred acres in the tract. To this Erskine assented; he agreed to wait. A survey was made, and when there turned out to be an excess, instead of a deficiency, Bierne refused to pay for the excess. In Fleet v. Hawkins, 6 Munf. 188, the tract was actually sold for IS dollars per acre; yet the purchaser having agreed to take the tract by the old survey, was held to be bound by that agreement, though in conflict with the terms of the contract. So here, Bierne having insisted that there should be a survey, with no other possible view than to get a deduction, if there was a deficiency, and Erskine having assented to it, the parties must abide the result. Whether we consider the transaction as a new agreement or not, it is the same thing. If it was a new agreement, by which compensation was to be made for risque or deficiency, then Bierne is clearly bound. If we look upon it only in the light of Bierne’s *35insisting on that as the true interpretation of the old agreement, and Rrskine’s acquiescing, Bierne cannot now be permitted to recede from the ground he has taken, when the fact has turned out differently from what he expected.

Decree affirmed.