#### *Blessing’s Adm’rs v. Beatty.

August, 1842,

Lewisburg.

(Absent Brooke. J)

Equity Jurisdiction—Mistake—Conveyance of Land.*— Sale is made of land embraced by a deed under which the vendor claims, but by mistake the conveyance from the vendor embraces some land not conveyed by that deed, and omits some comprised in it. On a bill by the vendee against the administrator and heirs of the vendor, Held, equity will correct the mistake, by directing a conveyance from the heirs of the vendor according to the calls of the deed under which the vendor claimed.

Vendor and Vendee†—Contract of Hazard—Rule—The princitfles upon which equity gives relief to vendor *252in case of excess, or to vendee in case of deficiency in the estimated Quantity of land, examined by Baldwin, J.

Same—Estimate of Quantity by Parties—“More or Less.”‡—An estimate by the parties of the quantity' of land sold, whether in a contract executed or in a contract executory, ought to he taken prima facie to have influenced the price. Therefore where a sale was made, for 2000 dollars, of a tract of land, which, in the articles of sale and in the deed of conveyance, was mentioned as “containing 280 acres,” without the addition of the customary *253words “more or less,” and the tract proved to contain only 253 acres, it was considered that although the purchase money was not an equimultiple of the number of acres, yet the presumption was against the contract being one of hazard, and the vendor was held liable for the deficiency ; dissontiente Stanard, J.

Same—Rule of Compensation§ -Where, at the time of the sale of a tract of land, it is estimated that there is a certain number of acres within the boundaries by which the tract is conveyed, and it afterwards appears that the vendee is entitle.d to be compensated for a deficiency m the quantity, the rule of compensation will generally be according to the average value of the whole tract.

Appellate Practice- -Costs|—Administrator — Amendment of Decree.—in the court below, there having *254been a clerical misprision in decreeing; jointly against two defendants as administrators of a decedent, when the pleadings indicated that one of them was sole administrator, and the decree for costs haying through oversight been entered against him, as well as against certain heirs of the deceased, de bonis propriis, the appellate court amended the decree in these particulars. The appellate court being farther of opinion that what was declared in the decree would, by necessary implication, relieve the heirs from responsibility for ^certain land, but that it would have been more'regular to direct a release of that land, decreed such release accordingly. And the decree, being thus amended, was thereupon affirmed.

By deed bearing date the 5th of January 1816, between William Poston' and Charles Tate of the one part and Jacob Blessing of _the other part, it was recited that Poston and Tate, by virtue of a decree of the superior court of chancery holden at Staunton in July 1808, in a case therein depending between Jacob Blessing plaintiff and Arthur Campbell defendant, had sold to Blessing “a certain tract or parcel of land with the appurtenances, lying in Washington county on the middle fork of Holston and Mill creek, containing 280 acres,” and that the court afterwards confirmed the sale and ordered the commissioners to convey the said land fo Blessing; and then the deed witnessed that Poston and Tate, the commissioners aforesaid, conveyed to Blessing the said tract or parcel of land with the appurtenances; but the deed, instead of stopping there, proceeded to describe the said tract or parcel of land as bounded by particular metes and bounds set forth therein.

On the 6th of September 1828, articles of agreement were entered into between Blessing and Robert Beatty, which witnessed that Blessing had sold to Beatty “a certain tract or parcel of land containing 280 acres, called Staley creek place, lying and being in the county of Washington and state of Virginia, and or- both sides of the main road,adjoining the lands of John Townsend, the heirs of John Irons deceased, the heirs of Robert Thompson deceased, Wyatt M’Ghees and Augustine M’Ghees. ’ ’ Beatty, on his part, bound himself to pay to Blessing 2000 dollars, to be paid in the manner set forth in the articles.

By deed bearing date the 5th of January 1830, Blessing and wife, for the consideration of 2000 dollars, conveyed to Beatty the said tract or parcel of land, describing it as “lying and being in the county of Washington *and state of Virginia, and on both sides of the middle fork of Holston river, also on a creek called Staley’s creek, containing 280 acres, adjoining the lands of John Irons deceased and others, and bounded as followeth, to wit:” (after which, particular metes and bounds were set forth). The deed contained a covenant that Blessing and his heirs would warrant and defend the right and title ‘ ‘to the above described premises, ” to Beatty and his heirs, free and clear from the claim or claims of any person or persons whatever.

After the death of Blessing, to wit, on the 24th of October 1834, a suit in equity was brought by Beatty against the administrator and heirs of Blessing, in the circuit court of Smyth county. The bill set forth, that since Blessing’s death the plaintiff had discovered that the boundaries by which the land was conveyed by Blessing to him do not contain 280 acres, and that of the land included in the said boundaries there is between 15 and 30 acres to which Blessing had no title. And then the bill proceeded to explain how this arose. It stated, that the tract of land conveyed by Blessing to the plaintiff as containing 280 acres was mortgaged by a certain Arthur Campbell to Blessing ; that under this mortgage it was decreed to be sold, and was sold by Poston and Tate as commissioners, and Blessing the mortgagee became the purchaser thereof; that in the conveyance to Blessing, the commissioners included land which was not included in the mortgage, and that in this way Blessing was probably led into the error of attempting to convey to the plaintiff land to which he had no valid claim. The bill prayed that a survey might be ' directed, to ascertain the deficiency in the land conveyed by Blessing to the plaintiff, and that for this deficiency satisfaction might be decreed the plaintiff out of Blessing’s estate.

.The administrator of Blessing, after excepting to the jurisdiction of equity, answered, that he knew nothing *of the terms of the contract between Blessing and Beatty. He did not know whether Beatty purchased the land by the quantity, or in gross; and he called upon the plaintiff to shew 'what the contract was. He did not know that there were not 280 acres contained in the tract mentioned in the bill, nor that Blessing had conveyed any land to the plaintiff to which he had not right; and he called for proof. Blessing,- he said, had put the plaintiff into possession of the land contained in the deed, and the plaintiff had never been evicted; and if he had voluntarily surrendered possession of it to others, it was his fault,—a fault for which Blessing’s estate was not liable. At all events, he insisted, the plaintiff should have brought a suit at law upon the warranty, and not resorted to a court of equity for relief.

Some of the defendants were out of the commonwealth, and the cause was proceeded in against them by publication. Some were infants, and answered by guardian ad litem.

Under an order of survey made in the cause, the surveyor of the county returned a plat and report; but the report was deficient in clearness. The deposition of the surveyor was taken, which stated, that he ran the lines agreeably to the courses of the *255mortgage given by Campbell to Blessing; “or rather, running to the corners, where they could be found, and where not found, according to the courses and distances of said mortgage ;” and found the tract of land to contain 253 acres. In answer to a question of the plaintiff’s counsel, he stated that he had compared the courses of the morlgage with the courses of the deed made by Blessing to Beatty, and found them to differ, the deed last mentioned including some land that the mortgage would not cover; to wit, land on the south side of the main road, In the possession of James P. Strother. Other depositions were taken, but it is not material to state the purport of them.

*The cause coming on to be heard the 3d of May 1839, the following opinion and decree were entered: “The court, not being able from the evidence before it to perceive the extent of relief to be decreed to the complainant, supposes the difficulty may be removed by an additional report of the surveyor on the survey already made, or by making another survey and report; and perceiving that the probable relief to be granted will be a correction of the conveyance from Blessing to the complainant, so as to conform it to the deed of conveyance from the commissioners Poston and Tate to Blessing, under which Blessing held said land, and which (by mistake, as is believed) was departed from in the conveyance from Blessing to the complainant, so as to leave out some of the lands held by him under said deed, and to include others not conveyed to him; and then, by ascertaining the deficiency, to compensate the complainant therefor, leaving him to action at law upon his warranty for compensation for eviction of any portion thereof of which he does not now complain: therefore it is adjudged, decreed and ordered that the said surveyor so amend his report, if it can be one without a farther survey, as to shew how much land is contained in the tract in the bill mentioned, surveyed according to the lines of the conveyance made by the said commissioners Tate and Poston to Jacob Blessing, and also to shew the amount of acres included in Blessing’s conveyance to the complainant; also to shew the number of acres included in the latter and not embraced by the former, and how much of the former is left out in the latter; reporting also whether or not he finds marked trees and corners on the lines surveyed by him: and if he cannot do so in the survey by him now reported, that he again go upon the land in controversy, and survey and lay off the same.”

The surveyor made an additional report, setting forth the boundaries called for in the mortgage from Campbell *to Blessing, and the boundaries called for in the deed from the commissioners Poston and Tate to Blessing, and specifying wherein the two deeds corresponded and wherein they differed, and accounting for the variations between the two. The principal difference was the omission in the latter deed of one course and distance specified in the former. The surveyor supposed that a mistake was committed in copying the courses of the one deed into the other. There were, he said, two white oak corners following in succession, and he supposed that the copyist, after writing the words “white oak,” overlooked the description of the first corner and passed to the description of the second. This supposition, he said, was strengthened by the fact that thenceforward the lines of the commissioners’ deed pursued the calls of the mortgage, except that one course in the mortgage was S. 71 E. whilst the course of the correspondent line in the other deed was S. 21 E. which was a mistake that might readily happen with a negligent copyist, the words twenty and seventy, when written, being often mistaken for each other. The surveyor had no doubt that the commissioners intended to convey to Blessing according to the boundaries of the mortgage. This opinion, he said, was confirmed by the fact that the plat made from the courses of the mortgage closed accurately, whilst the plat according to the tines of the commissioners’ deed failed to close, by a difference of 11 degrees in course, and a deficiency of 90 poles in distance.

It seemed to the surveyor that the deed from Blessing to Beatty was made upon actual survey, and that the surveyor who made that survey went by the calls of the commissioners’ deed (making some corrections in course and distance) until he reached two white oaks at one of the corners described in the mortgage deed, after which he left entirely the courses both of the mortgage and of the deed from the commissioners, and ^struck out a new course for himself. This error was committed in attempting to run with the surrounding lands of Robert Thompson’s heirs and Wyatt M’Ghees, mentioned in the deed from Blessing to Beatty.

The surveyor reported that the quantity of land conveyed by the mortgage deed, according to his survey thereof as actually run by marked boundaries, when found, and by courses and distances taken from the mortgage deed, when corners were gone, was 2S3 acres; so that the quantity of land embraced in the mortgage deed was less by 27 acres than the quantity for which Beatty contracted. He further reported that the deed from Blessing to Beatty embraced 23 1-5 acres of land not contained in the mortgage deed, and left out 8 acres included in it.

The cause came on to be finally heard the 7th of May 1840. The circuit court, being of opinion that an error was committed in the conveyance from Blessing to Beatty by departing from the mortgage deed, and being satisfied that the sale from Blessing to Beatty was intended to include all the lands within the bounds of the mortgage, to which Blessing had, as mortgagee, the legal title, and that the boundaries thereof were departed from by mistake, decreed that the heirs of Blessing, or, in case of their *256failure, a commissioner appointed for the purpose, should convey to the complainant the land embraced by the mortgage deed, according to the calls thereof. And it appearing by the report of the surveyor, that the quantity of land embraced within the mortgage was only 253 acres, and it also appearing (as the court thought) by the original contract, that Blessing contracted to sell to the complainant 280 acres, and the average price paid for said land per acre being 7 dollars 14 cents, at which price the 27 acres deficient would amount to 192 dollars 78 cents, the court therefore decreed that the administrators of Blessing, out of his estate, pay to the complainant *the said sum of 192 dollars 78 cents, with interest thereon from the 6th of September 1830 (when the last payment of the purchase money fell due) till paid; and that the complainant recover against the defendants his costs.

Although Arthur M. Bowen was the only person sued as administrator of Jacob Blessing deceased, and his son Jacob Blessing was no otherwise a defendant than as one of the heirs of the deceased, yet the decree was against both Arthur M. Bowen and Jacob Blessing as administrators.

On their petition, an appeal was allowed from the decree.

The cause was argued in writing b3r M’Comas and B. R. Johnston for the appellants, and b3T Sheffey for the appellee.

I. It was contended for the appellants, that the sale of the land was not by the acre, but in gross. Where the contract is not explicit, they argued, the question whether it is of the one character or the other, depends upon the particular circumstances of the case. The insertion or omission of the terms more or less is immaterial. In the case of Keytons v. Brawfords, 5 Leigh 39, the land was mentioned in the deed as containing a specified number of acres; but the court considered that this was merely descriptive of the tract of land, and could not be referred to the clause of warranty, so as to bind the party to make good a deficiency. The sale was held to be in gross, and the circumstance that the purchase money was not an equimultiple of the number of acres was strongly relied on. That circumstance equally exists here. The price per acre in this case, if it were' considered to be by the acre, would be 7 dollars 14 cents and eight twenty-eighths part of a cent. The deficiency, moreover, is not excessive. Under the authority of Keytons v. Brawfords, no allowance should be made for it.

*Ror the appellee, it was contended to be a general principle of equity, that for deficiencies relief will be granted. Only in peculiar cases will that relief be refused. Rrom the cases on the subject, this rule is fairly to be deduced: that where it can clearly be shewn by the vendor that the parties understood and expressly agreed that the one should risk the loss of a surplus and the other of a deficiency, let the quantity be what it might, no relief will be granted; but where the parties did not contemplate a deficiency, or expressly contract with reference to risk as to quantity, and there turns out to be a deficiency, there equity will relieve. Jolliffe &c. v. Hite &c., 1 Call 329; Hull v. Cunningham’s ex’or, 1 Munf. 330; Nelson v. Carrington & others, 4 Munf. 332. Is it shewn by the appellants that such was the express contract and understanding of the parties? What evidence is there that a deficiency was contemplated, or made the subject of a contract? It does not appear by the contract, nor b3T the deed 6f conveyance. Not even the usual words “more or less” are used; and if they were used, they would not be conclusive. Who shews that Beatty expressly took upon himself the risk of a deficiency? No one. There is no principle of equity, then, which will throw upon him the loss. The only circumstance that can be relied upon to make the contract a sale in gross, is, that the average price per acre is not an even one. In Keytons v. Brawfords, this circumstance was expressly held not to be sufficient by itself. There were other strong circumstances in connexion with that; and from the whole the court inferred that the sale was a sale in gross.

II. It was contended for the appellants, that the case was not proper for the interference of equity. In Long’s ex’or &c. v. Israel &c., 9 Leigh 556, it is decided, that while equity will interfere by way of injunction to restrain the collection of purchase money, where a defect of title is alleged by the vendee, yet it is only in that 'x'mode that it will take jurisdiction ; and that where the purchase money has been paid, and there is a mere covenant of general warranty, as in this case, the party will be left to his action at law, which only accrues when there has been eviction by paramount title. Though the facts in that case were stronger than in this, the party was left to his remedy at law. No compensation was allowed for land which, upon the proof, was covered by an elder and better title. In the case at bar, it appears that the appellee was put in possession under Blessing’s deed, and the bill sets forth no complaint of eviction. But if equity interfere, it should only allow for so much as the land embraced in the deed from Blessing to Beatty falls short of 280 acres.

Ror the appellee it was said, that though the allowance for deficiency would be ascertained by the deed from Blessing to Beatty if that deed was correct, yet as there was a mistake in that deed, it was right to correct the mistake. The case of Long’s ex’or v. Israel &c. was an authority in support of the decree in this respect. Blessing having contracted to sell, and Beatty to buy, according to the mortgage deed, it was proper to give compensation for the deficiency ascertained by running the lines according to that deed.

III. It was contended that the allowance per acre for the deficiency was too high.

The counsel for the appellee relied upon Nelson v. Matthews &c., 2 Hen. & Munf. *257164, and Nelson v. Carrington & others, 4 Munf. 332, as sustaining the allowance, which was of the average value of the whole tract.

Bor the appellants, it was said, that where there is a mere defect of quantity (the boundaries of the deed not including the full number of acres), the only rational and attainable standard of damages is the average value per acre; but that where, on the contrary, land is included within the boundaries which is lost by defect of title, the land itself is subject to view and ^valuation, and no more damages will be given than the actual value of that very portion lost.

IV. It was insisted, that no correction could be made according to the mortgage deed, without making the heirs of Campbell parlies. The counsel for the appellee answered, that all the interest of Campbell had been parted with by the mortgage, the sale under it, and the purchase bj’ Blessing at that sale.

V. It was contended that the decree was clearly erroneous in decreeing against Jacob Blessing as administrator, when he was not sued in that character.

Bor the appellee it was said, that this, though erroneous, was an error without an injury. Blessing was not directed to pay out of his own funds, but out of the estate of the decedent. Having in his hands no estate of the decedent, he incurs no contempt by not performing the decree of the court, and his rights are no way affected. The burthen must fall upon the assets in the hands of Bowen the true administrator, and the associating another’s name erroneously with his neither lessens his obligation’ to pay, nor renders the payment by him more difficult.

The counsel for the appellants replied that the decree as to Blessing was not so harmless as was supposed. Bor, while it remained unreversed, it fixed conclusively that there were assets in his hands, though he had never had the opportunity of pleading that he had no assets.

VI. It was insisted that the decree ivas erroneous in giving costs jointly against the administrators and heirs, and giving them, as against the administrators, de bonis propriis. Long’s ex’or &c. v. Israel &c., 9 Leigh 556.

The counsel for the appellee said, he did not understand the decree as making Bowen individually liable; and Blessing stood on the same footing with his coheirs.

*

Equity Jurisdiction-Deficiency in Land—Mistake. ""Courts of equity have jurisdiction to render decrees for the value of the deficiency in the quantity *of*land sold by the acre. The basis of this jurisdiction is either mutual mistake, or the mistake of one party occasioned by the fraud or culpable negligence of the other. Hull v. Watts, 95 Va. 12, 27 S. E. Rep. 829, citing the principal case.

The principal case is also cited for this proposition in Watkins v. Elliott, 28 Gratt. 380; Boschen v. Jurgens, 92 Va. 759, 24 S. E. Rep. 390; Graham v. Larmer, 87 Va. 233, 12 S. E. Rep. 389; Crislip v. Cain. 19 *W.*Va. 533; Caldwell v. Craig, 21 Gratt. 139; Rogers v. Pattie, 96 Va. 502, 31 S. E. Rep. 897.

Same—Same—Same—Estimate of Quantity by Parties.—The principle upon which equity gives relief in cases of excess and deficiency in the estimated quantity upon the sale of lands, is where there is a mistake, whether the mutual mistake of the parties. or the mistake of one of them, occasioned by the fraud or culpable negligence of the other. The general rule is that an estimate of the quantity by the parties, whether in a contract executed or a contract executory, ought to be taken *prima facie*to have influenced the price. Nichols v. Cooper, 2 W. Va. 350, citing the principal case.

The principal case is cited in Graham v. Larmer, 87 Va. 233, 12 S. E. Rep. 389; Crislip v. Cain, 19 W. Va. 542; Hendricks v. Gillespie, 25 Gratt. 200; Walsh v. Hale, 25 Gratt. 318; Trinkle v. Jackson, 86 Va. 241, 9 S. E. Rep. 986.

The principal case is distinguished in Shoemaker v. Cake, 83 Va. 4, 1 S. E. Rep. 387. But see Nichols v. Cooper, 2 W. Va. 347, disapproved in Crislip v. Cain, 19 W. Va. 552, 553, 554.

Same—Same—Same.—En Graham v. Larmer, 87 Va. 232, 12 S. E. Rep. 389, the court said : “In the leading Virginia case of *Blessing Beatty,*1 *Rob.*301, Judge Baldwin reviewed all the prior decisions of this court upon the subject in hand ; and the principle deduced therefrom was, that courts of equity entertain jurisdiction and grant relief upon the ground of mistake, and this whether the sale was at a specified price per acre, or a sale of a tract supposed by both parties to contain a definite number of acres, for an aggregate sum or gross price, and that if, in either case, there was a mistake as to the quantity, equity will give relief, with compensation for the excess or deficiency, as the case may be ; but that the right to relief, otherwise clear, maybe excluded by a stipulation at the time of the sale, that the estimated quantity shall, in any event, be taken as the actual quantity—the parties thus making a contract of hazard.’*

The principal case is cited in Crawford v. M’Daniel, 1 Rob. 453.

Same—Principal Case Disapproved.—The opinion of .Judge Baldwin, in the principal case, and the subsequent Virginia case.s which have adopted his views, as also the first syllabns in Nichols v. Cooper, 2 W. Va. 347, disapproved in Crislip v. Cain, 19 W. Va. 533, 545.

Same—RtiJe When Purchase Money Paid, —it was said in Kelly v. Riley, 22 W. Va. 249, citing the principal case, that if equity has jurisdiction in the case of a deficiency in quantity of land, the sale being by the acre, to enjoin the collection of purchase money after conveyance executed, it would, seem to be clear that it ought to grantrelief wnen the purchase money has been paid as no objection to its j urisdiction could be urged in the one case which would not equally apply to the other.

Same—Clerical nisprision.—The principal case is cited in Deitz v. Ins. Co., 33 W. Va. 541, 11 S. R. Rep. 56, to the point that no court of record would hesitate to correct a clerical misprision in its own records. if the mistake is clearly established.

†

Sale by Acre or by Tract of Land.—A question frequently arises as to whether a sale is by the acre or is of a tract of land, the acreage being merely for description and not determining the amount of the price. The question is largely one of intention. Jollife v. Hite, 1 Call 262; Keyton v. Brawford, 5 *252Leigh 39; Weaver v. Carter, 10 Leigh 45; Norfolk Trust Co. v. Foster, 78 Va. 419. In this latter case the court said: “Whether a contract of saléis one of hazard as to quantity—in other words, whether it is a 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 he gathered from the terms of the contract, and all the facts and circumstances connected with it. And 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 can he 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 hy 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 one of hazard. These propositions have been affirmed by this court in numerous cases. Keyton v. Brawford, 5 Leigh 39; *Blessing v. Beatty,*1 *Rob. Rep.*304; Triplett v. Allen, 26 Gratt. 721; Watson v. Hoy, 28 Gratt. 698; Yost v. Geisler, 7 Va. L. J. 624."

The principal case is cited in this connection in Watson v. Hoy, 28 Gratt. 704, 705; Boschen v. Jurgens, 92 Va. 759. 24 S. E. Rep. 390; Graham v. Larmer, 87 Va. 238, 12 S. E. Rep. 389*See foot-note*to Triplett v. Allen, 26 Gratt. 721, and *foot-note*to Caldwell v. Craig, 21 Gratt. 132.

‡

“More or Less”—Effect on Purchaser.—When the real contract is to sell a tract of land for so many acres as it may contain, more or less, fully understood to he so, the purchaser takes the tract at the risk of gain or loss, by deficiency or excess. Tucker v. Cocke. 2 Rand. 51; Russell v. Keeran, 8 Leigh 9; Pendleton v. Stewart, 5 Call 1; Hull v. Cunningham, 1 Munf. 330; Weaver v. Carter, 10 Leigh 37; Grantland v. Wight, 2 Munf. 179; Caldwell v. Craig, 21 Gratt. 132; Allen v. Shriver, 81 Va. 174; Jollife v. Hite, 1 Call 301. 1 Am. Dec. 579; Pratt v. Bowman, 37 W. Va. 715, 17 S. E. Rep. 210; Depue v. Sergent, 21 W. Va. 326; Anderson v. Snyder, 21 W. Va. 633.

But in Jollife v. Hite, 1 Call 329, where the principles applicable to this subject were discussed, it was decided that wherever the primary contract is for a sale by the acre, though it be carried into execution by a deed conveying a certain quantity, more or less, the vendee is not precluded from claiming for deficiency, nor the vendee for excess.

Same—Sale in Gross or by Acre.—A sale of a tract of land, described by metes and bounds as containing a certain number of acres, “more or less,” is a sale in gross and not by the acre, though the price named be an exact multiple of the number of acres . named. Depue v. Sergent, 21 W. Va. 326; Anderson v. Snyder, 21 W. Va. 632; Crislip v. Cain, 19 W. Va. 438; Pratt v. Bowman, 37 W. Va. 715, 17 S. E. Rep. 210; Weaver v. Carter, 10 Leigh 39; Russell v. Keeran, 8 Leigh 9; Hull v. Cunningham, 1 Munf. 330; Pendleton v. Stewart, 5 Call 1, 2 Am. Dec. 583; Benson v. Humphreys, 75 Va. 196. The principal case is cited in this connection in Crawford v. M’Daniel, 1 Rob. 458.

Virginia Case Disapproved.—The case of Benson v. Humphreys, 75 Va. 196, is disapproved in Depue v. Sergent, 21 W. Va. 327. The court said: “It is true that where the words ‘more or less’ were not added to the description of the quantity of the land, the court of appeals of Virginia in the case of Benson v. Humphreys, Law Journ. April, 1881, did hold, where the price was an exact multiple of the quantity, though it was not stated exactly but was qualified by the addition of the words ‘more or less,’ yet, that this was still a contract of sale by the acre. But this case met the express and decided disapproval of onr court, in Crislip, Guardian, v. Cain, 19 W. Va. pp. 551 and 552. It is entirely unsustained hy reason or authority in Virginia or elsewhere.”

Distinction between Sale in Gross and by the Acre.— The distinction pointed out in Pendleton v. Stewart, 5 Call 1, 2 Am. Dec. 583, between a sale in gross and by the acre is as foliows: Where the sale is by the acre for a stipulated number of acres, the words "more or less” will cover only very small errors, such as might reasonably he imputed to the variation of instruments or other similar causes; but if it is a sale in gross and it is fully understood that the contract is to sell a tract of land, as it may contain more or less, both parties are presumed to take the risks of the excess or deficiency in the quantity.

An agreement to sell land contained within specified boundaries, supposed to he a certain number of acres, at a fixed price per acre, is a sale by the acre, and not in gross. Carter v. Campbell, Gilm. 159.

Same—Same—Rights oí Vendee.—It was held in Keyton v. Brawford, 5 Leigh 39, that a vendee of land, in a sale *by the acre,*is entitled to an abatement from tbe 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, in case of deficiency; and whether the sale he 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.

Payment of Gross Sum upon Estimate of Given Quantity.—The principal case is cited in Watson v. Hoy, 28 Gratt. 698. and Camp v. Norfleet, 83 Va. 382, 5 S. E. Rep. 374, to the point that where the parties contract for the payment of a gross sum for a tract or parcel 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 one of hazard. See Grayson v. Buchanan, 88 Va. 251, 13 S. E. Rep. 457.

As Estimated—As Supposed.—The words “more or less,” are not construed to mean “as estimated,” “as supposed,” hut are construed to mean “about” the specified number of acres, and are considered or designated to cover only such small errors of surveying as usually occur in surveys. Crislip v. Cain, 19 W. Va. 442. See also, Benson v. Humphreys, 75 Va. 196; Anderson v. Snyder, 21 W. Va. 647.

Warranted That Thing Sold Will Correspond to Representation.—A warranty tacitly annexed to every contract, that things bought or sold shall corre*253spond with the representation made ot it, at the time oí concluding the contract between the parties, is neither waived nor destroyed by the insertion of the words “more or less.” in a contraction the sale of land by a specified number of acres, if an error beyond what may reasonably be imputed to the variation of instruments, or other similar causes, be afterwards discovered. Jollite v. Hite, 1 Call 301, 1 Am. Dec. 519; Pendleton v. Stewart, 5 Call 5; opinion of Tucker. J., Caldwell v. Craig, 21 Gratt. 137.

Contract of Hazard—A sale in gross, when applied to the thing sold, means a sale by the tract, without regard to quantity, and in that sense is *ex*vi *termini*a contract of hazard. Shoemaker v. Cake, 83 Va. 1, 1 S. E. Rep. 387; Russell v. Keeran, 8 Leigh 9; Yost v. Mallicote. 77 Va. 616.

Material and Immaterial Differences — Immaterial Differences.—Where the contract is for a tract or parcel ot land in gross, without reference to its qujntity, whatever the deficiency, no allowance is made to either party, even where the deficiency is great. Thus, in the case of Tucker v. Cocke, 2 Rand. 51, the deficiency was a thousand acres. In Russell v. Keeran, 8 Leigh 9, the deficiency amounted to one hundred acres in a tract ot four or five hundred acres.

Tn Caldwell v. Craig, 21 Gratt. 132, there was a deficiency of two hundred acres in a conveyance of one thousand acres, more or less, for a considerate on of six thousand five hundred dollars. See also, Graham v. Larmer, 87 Va. 222, 12 S. E. Rep. 389.

If a tract of land be sold for *1100*acres more or less at a fixed price, and It tnrns out that It is less, the purchaser will not be relieved in equity. Pendleton v. Stewart, 5 Call 1, 2 Am. Dec. 583.

A deficiency of eight acres in a tract of 552 acres, is no more than a purchaser who buys for more or less may reasonably expect. Nelson v. Matthews, 2 H. *&*M. 164, 3 Am. Dec. 620.

Material Differences. -But ten acres, ill a tract of 166 acres, Is not one of these small deficiencies to lie covered by the phrase “more or less.” Triplett v. Allen, 26 Gratt. 721. Nor a deficiency of one hundred and ninety-two acres in a conveyance of eight hundred acres, more or less. Quesnel v. Woodlief, 6 Call 239, opinion of Judge Lyons.

Quantity Considerably *Less*—The principal case is cited in Walsh v. Hale, 25 Gratt. 317, to the point that a purchaser, if the quantity be considerably less than was stated, will be entitled to an abatement, although the agreement contain the words “more or less.”

Sale of Five Hundred and Three Acres, Deficiency, Thirty-Four Acres,- In a sale of lands described in the deed as containing five hundred and three acres, the presumption is that the specified number of acres wasintended, andil' there is a consi derable deficiency—here thirty-four acres—the purchaser is entitled to an abatement of price. Watson v. Hoy, 28 Gratt. 698. and *note.*See *foot-note*to Caldwell v. Craig, 21 Gratt. 132.

Fraud or False Representation.—Although the sale be in gross, and not by the acre, If the vendor, to induce the vendee to purchase, falsely represents to him that the land contains a specified number of acres, or that number “more or less,” and the vendee, relying' on the truth of such representation, is thereby induced to purchase the same as containing about that num her of acres, at a price he would not otherwise have given for it, such representation even if innocently made, may amount to an implied warranty of the number of acres, and the vendor may be compelled to account to the vendee for a deficiency in the number of acres. Anderson v. Snyder, 21 W. Va. 683; Crislip v. Cain, 19 W. Va. 438; Sine v. Fox, 23 W. Va. 521, 11 S. 16. Rep. 218; Kelly v. Riley, 22 W. Va. 247; Boggs v. Harper, 45 W. Va. 554, 31 S. E. Rep. 943; Allen v. Shriver, 81 Va. 174.

Failure to Disclose Quantity of Land Sold.—-If the contract be for 900 acres, more or less, and the tract be found to contain only 765 acres, the purchaser will be relieved, if it appear, that the seller knew of the deficiency at the time of the sale, but did not disclose it. Bedford v. Hickman, 5 Call 236, 2 Am. Dec. 590. To the same effect, see Anthony v. Oldacre, 4 Gall 489; Nelson v. Matthews, 2 H. & M. 164, 3 Am. Dec. 620.

Though land be sold *in gross, for so much, he it more or less,*yet, if it be evident that both parties were mistaken in a material point, as *to the*lines by which the vendor held, and there was no express agreement on the part of the purchaser to take the risk upon himself, a court of equity will give relief for a deficiency. Hull v. Cunningham, 1 Munf. 330.

§

 Rule of Compensation Stated.—The rule of compensation or abatement in case of an excess or deficiency in the quantity of 1 and sold is according to the average value per acre of the whole tract, un less particular circumstances require a departure from that rule. Watson v. Hoy, 28 Gratt. 698. citing the principal case, and Hoback v. Kilgores, 26 Gratt. 442; Triplett v. Allen, 26 Gratt. 721; Nelson v. Matthews, 2 H. & M. 164, 178; Nelson v. Carrington, 4 Munf. 332, *340;*Hundley v. Lyons, 5 Munf. 342.

The principal case Is cited for this proposition in Yost v. Mallicote, 77 Va. 615, 617; Hoback v. Kilgores, 26 Gratt. 442; Sergeant v. Linkous, 83 Va. 667, 3 S. E. Rep. 295; Trinkle v. Jackson, 86 Va. 241, 9 S. E. Rep. 986; Caldwell v. Craig, 21 Gratt. 139. *See footnote to*Hoback v. Kilgores, 26 Gratt. 442.

Same.—The general rule in the case of an abatement on account of deficiency in the quantity of land sold, is to allow for the deficiency the average price of the whole land. Depue v. Sergent, 21 W. Va. 345, citing the principal case, and Hull v. Cunningham, 1 Munf. 330; Nelson v. Matthews, 2 H. & M. 164; Lowther v. Com., 1 H. *&*M. 202; Crawford v. McDaniel, 1 Rob. 448; Nichols v. Cooper, 2 W. Va. 347; Stockton v. Union *Oil &*Coal Co., 4 W. Va. 273. See also, Kelly v. Riley, 22 W. Va. 247; Boggs v. Harper, 45 W. Va. 554, 31 S. E. Rep. 944; Grayson v. Buchanan, 88 Va. 251, 13 S. E. Rep. 457.

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 Appellate Practice—Decreeing Costs of Appeal to Appellee,—The principal case Is cited in Marks v. *254Hill, 15 Gratt. 422. See also, Handly v. Snodgrass, 9 , Leigh 484; Williamson v. Howard, 2 Rob. 39; Boyce, v. Smith, 9 Gratt. 704.

BALDWIN, J.

I am well satisfied, from all the circumstances of the case, that it was the intention of *Blessing to sell, and of Beatty to purchase, the land embraced by the mortgage deed, according to the true boundaries, whatever those might be, and adopting the estimate of quantity expressed in that deed, to wit, 280 acres; but that a mistake occurred in relation to the boundaries, occasioned by errors"in the deed from the commissioners to Blessing, and an unfortunate attempt to correct those errors without resorting to ' the calls of the mortgage deed. The consequence has been that the deed from Blessing to Beatty embraces some land not conveyed by the mortgage deed, to which Blessing had no colour of title, and omits some comprised in that deed, to which there does not appear to have been any adverse claim. The decree of the circuit court very properly corrected the mistake, by directing a conveyance from the heirs of Blessing according to the calls ol' the mortgage deed. The corrected boundaries contain only 253' acres, shewing a deficiency of 27 acres : and the questions presented for our consideration upon merits are, whether compensation ought to be made for that deficiency, and if so, what should be the measure of compensation?

The principle upon which equity gives relief incases of deficiency or excess in the estimated quantity upon the sale of lands, I understand to be that of mistake ; whether the mutual mistake of the parties, or the mistake of one of them, occasioned by the fraud or culpable negligence of the other. 1 do not perceive any other principle upon which the jurisdiction can be founded; for if there has been no mistake, either in the contract itself or the execution of the contract, the parties must stand upon their legal rights, to be adjudicated and enforced in a legal forum, unless the question should arise incidentally in a court of chancery, in the exercise of some other branch of its jurisdiction. The principle was recognized in Hill v. Buckley, 17 Ves. 394, 401; Glover v. Smith, 1 Desaus. 433, and Duvals *v. Ross, 2 Munf. 290. It was the expressed and sole ground of decision in Quesnel v. Woodlief. That case, though commented upon and approved in Jolliffe *&c.*v. Hite &c., 1 Call 301, was for some time misunderstood and questioned, 5 Call 9, 10, 2 Rand. 67, from the want of a correct report of it; (see an imperfect one in 2 Hen. & Munf. 173, note,) but it is now well and accurately reported *in*6 Call 218, and its authority no longer disputed, but recognized; Bierne &c. v. Erskine, 5 Leigh 64. The cases of Nelson v. Matthews &c., 2 Hen. & Munf. 164, and Hull v. Cunningham’s ex’or, 1 Munf. 330, must have been founded upon the same princi£)le. The idea is sometimes adverted to, of a tacit warranty annexed to every contract, that the thing bought or sold shall correspond with the representation made of it at the time, 5 Call 5, but this is only another mode of suggesting the same principle, and imports nothing more than the duty of one party to correct a mistake to which he has been instrumental, committed to the prejudice of the other. In the application of the principle, it is wholly immaterial whether a'deficiency arises from a miscalculation of the area within the boundaries, as in Duvals v. Ross, or the exclusion b3r the described boundaries of a part of the tract sold, as in Hull v. Cunningham’s ex’or. or the inclusion of a jart unquestionably belonging to a third person, as in one aspect of Nelson v. Matthews &c.

*258The cases proper for compensation on account of deficiency or excess are of three classes. The first I will mention is that of a sale by the acre, by the express terms of the contract; for example, the sale of a tract stated ..at 1000 acres, for the price of five dollars per acre. Here the quantity mentioned is manifestly mere matter of description, or conjectural or temporary estimate; either party having a perfect right to ascertain accurately the precise quantity by actual admeasurement; which quantity, when so correctly ascertained, *gives infallibly, by the application of the stipulated price per acre, the exact amount of the purchase money. But if the parties, relying too much upon the estimated quantity, go on to adjust the consideration by that criterion, and it turns out that the estimate is erroneous, the mistake.is undoubtedly one which must be corrected. In such a case, the mistake is not in the terms of the contract, but in the result of those terms when applied to the subject. The parties may, however, b3T their agreement, make the estimated quantity conclusive, by stipulating to dispense with a survey and to be governed in all events by the given estimate. This changes the sale into a contract of hazard, and necessarily excludes the interposition of equity on the ground of mistake.

A second class of cases is where the agreement or understanding of the parties is for a sale at a stipulated price per acre, but instead of stating those terms in the contract, they express, as the consideration, the result of a calculation based upon an erroneous estimate of the quantity. Here the mistake is in the terms of the contract, a gross sum having been adopted under the belief of its being the aggregate of the agreed price per acre. In such cases, also, the right to relief, otherwise clear, may be excluded by a stipulation that the estimated shall in any state of facts be taken as the actual quantity; the parties thus contracting for an anticipated hazard.

The third class of cases is where the parties contract for the payment of a gross sum for a tract or parcel, upon an estimate of a given quantity, which influences the price agreed to be paid. Here there is no mistake in the terms of the contract, nor in the application of those terms to the subject, but in an important element of the contract, which, if correctly understood at the time, would in all probability have prevented the contract from being made, or have varied its terms. That *such cases require relief in equity, is well established; Hill v. Buckley, Glover v. Smith, Quesnel v. Woodlief, and Duvals v. Ross, above cited; to which may be added Bierne &c. v. Erskine, 5 Leigh 59, and the authorities cited by judge Lyons in 1 Call 316. The proper relief is to set aside the contract, or to give a just compensation, such as will place the. parties in the same relative situation in which they would probably have placed themselves, if the true state of the fact had been known when they made their agreement. In this, however, as in the other classes of cases, the relief being founded upon a mistake unprovided for, it is repelled by shewing that it was anticipated as probable, and provided for by an agreement that the contingency should be a matter of hazard.

This is briefly my view of what I consider the correct doctrine on this subject; over which it is true there is some obscurity, attributable, as I conceive, not so much to a difference of opinion in regard to the principles, as to an occasional want of accuracy and precision in the terms employed to express them; which has arisen in a great measure out of the use of the same words in different senses. Thus the word “gross” is applicable as well to the price as the thing sold, and “a sale by the acre” has reference to both. But we must bear in mind that upon the question of compensation, the substantial distinction is between a sale that is a contract of hazard, and one that is not. When “a sale in gross” is used as equivalent to a contract of hazard, the term is properly applicable not to the price but to the subject: for a sale by the acre may be a contract of hazard, and a sale for a gross sum may not. A sale in gross, when applied to the thing sold, means a sale by the tract without regard to quantity ; and in that sense is (as was said by judge Cabell in Russell &c. v. Keeran &c., 8 Leigh 19,) ex vi termini a contract of hazard. In that sense, however, the distinction sometimes taken between *a- sale in gross and a sale by the acre is too narrow; inasmuch as, though a sale in gross, thus understood, is a contract of hazard, a sale by the acre may be so too: and this want of comprehensiveness in the distinction is apt to beget a confusion of ideas, and lead us into error. Thus, when a sale for a gross sum is spoken of as a sale by the acre, because the quantity is not hazarded, two distinct classes of cases are confounded, and the absence of a provision regulating the price in the event of deficienc3r or excess, substituted for an express provision which does regulate it; in other words, a mistake of the parties as quantity, not provided for by the terms of the contract, is treated as identical with one which is provided for by the terms of the contract: for a sale at a given sum per acre carries out the intention ■of the parties, whether they are correct or mistaken in their estimate of the quantity; whereas a sale for a gross sum effectuates their intention, only where they are correct, and not where they are incorrect, as to the quantity. The inadequacy of the distinction tends to obscure the doctrine, and lead us away from the true ground of relief (the mistake of the parties) into delusive speculations as to the specific character of the contract. For example, where a given sum per acre is not an even quotient of the gross price stipulated, it cannot, as has been sometimes supposed, serve to show that the sale is a sale in *259gross (understood as a contract of hazard), inasmuch as it may well have happened, not merely that there was no sale by the acre, but no estimate of the price per acre which the gross sum would give, and yet the gross price may have been influenced by the supposed quantity, by enhancing or diminishing the value according to an aggregate and not a distributive estimate.

The question of compensation usually arises (for reasons already suggested) not in sales by the acre, but in sales for a gross sum. In the latter cases, the enquiry *to be made in the first place is, whether the parties made a mistaken estimate of the quantity, which influenced the price; and then, whether, notwithstanding such mistaken estimate, they have waived the right to compensation, by an agreement of hazard. In the absence of all direct evidence, the safest general rule, I think, is, that an estimate of the quantity by the parties, whether in a contract executed or a contract executory, ought to be taken prima facie to have influenced the price; for quantity is usually an important element of the agreement, and can hardly be supposed to have been disregarded by the parties, or to have been unmeaningly stated by them in a solemn contract. As a mere matter of description in a conveyance, it is for the most part useless ; and more emphatically so in an executory contract. That the statement of the quantity has not generally been regarded as a matter of indifference, is evident from the frequent introduction of the additional words “more or less,” the habitual employment of which can be for no other purpose than to shew that the parties do not intend to bind themselves for the precise number of acres mentioned: and the effect which the courts have given to those words (which have been construed to cover only small deficiencies or excesses, attributable to variations of instruments and the like, and not important deviations, Quesnel v. Woodlief, 6 Call 218; Jolliffe &c. v. Hite &c., 1 Call 301), illustrates the strong leaning of the courts against the inference of a contract of hazard; a construction which has moreover been expressly declared in several cases to be one that ought not to be favoured. Hundley v. Lyons, 5 Munf. 342; Keytons v. Brawfords, 5 Leigh 48.

In the case before us, the quantity is unequivocally and expressly stated at 280 acres, in the deed of conveyance from Blessing to Beatty, without even the addition of the customary words “more or less;” and the articles of agreement between them evidence a sale of *“a certain tract or parcel of land containing 280 acres, called Staley creek place.” These terms, to my mind, furnish at least strong presumptive evidence against a contract of hazard; and I am aware of no circumstances in the cause, by which that presumption is rebutted. The case of Keytons v. Brawfords, 5 Leigh 39, relied on by the appellants’ counsel, is not like this. There, the claim to compensation was not for a deficiency within the boundaries contemplated by the parties, but for the loss of land out of those boundaries, not intended to be sold, and which had been long held by an adverse claimant under a good title ; and the deviations in the deed were from the known boundaries by which the land was sold and had been long held, the parties being mislead in the description of the boundaries by erroneous title papers. Here, the deviations were from the true, but not accurately known boundaries of a correct title paper, by which the parties intended to be governed. There, the statement of the quantity in the deed was not an estimate according to the known and contemplated boundaries, but an incident of the erroneous description of the boundaries. Here, the statement of the quantity in the deed corresponds with that in the correct title paper, and must have been a mistaken estimate from the true and contemplated boundaries. These points of difference between the two cases are sufficient for *my*purpose; and I need not notice the various other circumstances relied on in the case cited, and not existing here, tending to shew a contract of hazard. The case of Pendleton’s ex’ors v. Stewart, 5 Call 1, is more like this; but that case turned upon the effect of the words “more or less” in an executory contract, which, under the circumstances, were held to make a contract of hazard, upon the authority of Jolliffe &c. v. Hite &c., 1 Call 301, where a public sale by an executor for more of less, so distinctly understood, was held to be of that character. *1 do not consider the authority of Pendleton’s ex’ors v. Stewart as applicable to the case before us, which is very much like, and cannot be distinguished in principle from, that of Bierne &c. v. Erskine, *5*Leigh 59, where a purchaser was compelled to make compensation for an excess, upon an executory contract for the sale, at a gross price, of a tract stated in the agreement to contain 100 acres.

Por the reasons above stated, I am of opinion that the decree of the circuit court was right in holding the representatives of Blessing liable for the deficiency of 27 acres. As to the measure of compensation, I think there can be no difficulty. If the deed from Blessing to Beatty had been correct in the first instance, it would have presented the case of a mere deficiency in quantity within the boundaries of the tract conveyed; and such is the real nature of the case, after the correction of that deed according to the true boundaries. In such a case the general rule of compensation is according to the average value of the whole tract; and there are no particular circumstances here, requiring a departure from that rule.

The other objections to the decree require but little notice. There was no necessity for making the heirs of Campbell, the mortgagor, parties in the cause; he having been divested, by the mortgage and *260the decree of foreclosure, of all title, legal and equitable. The joint decree de bonis testatoris against Bowen and Jacob Blessing, as joint administrators wUh the will annexed of the vendor Blessing, for the value of the deficiency, when the pleadings indicated that Bowen was the sole administrator, is not an error of judgment, but a clerical misprision, which may yet be amended. And so the decree against the administrator Bowen, jointly with the other defendants, the heirs of Blessing, for costs de bonis propriis, was evidently not intentional, but a mere oversight, which might have been corrected, on motion, *by the court in which the decree was rendered, and which is still amendable. And the declaration contained in the decree, of the true boundaries of the tract, would by necessary implication relieve the heirs of Blessing from any responsibility, upon their ancestor’s warranty, for the land out of those limits, but comprised in the erroneous deed: but perhaps it would be more regular, and certainly cannot be improper, to direct a release from Beatty to the heirs of Blessing of the land thus improperly conveyed.

Upon the whole, I am of opinion to affirm the decree of the circuit court with costs, after correcting it in the points above indicated.

STANARD, J.,

dissented. But ADREN, J., and CABEDL, P.¿ concurring in opinion with Baldwin, J., the decree of the court of appeals was entered in the following terms:

The court is of opinion that there is no error in the said decree from which the same ought to be reversed; but that there is a clerical misprision therein, in decreeing jointly against the appellants Bowen and Jacob Blessing, as joint administrators with the will annexed of Jacob Blessing deceased, the value of the deficiency in the tract of land in the proceedings mentioned, sold and conveyed by their ancestor to the appellee, when the pleadings indicate that the said Bowen is the sole administrator with the will annexed of said testator, and therefore that the decree for that matter ought to have been against him alone as such administrator. And the court is also of opinion that the decree against the said administrator Bowen, jointly with the other defendants, for costs de bonis propriis, was evidently not intentional, but a mere oversight, which might have been corrected on motion in the court by which said decree was rendered, and is still amendable. It is therefore considered by the court that the said decree ' be, and the same *is hereby, amended in said particulars. And the court is further of opinion, that though the declaration in said decree, of the true boundaries of said tract of land, would by necessary implication relieve the heirs of said Jacob Blessing deceased from any responsibility, upon their ancestor’s warranty, for the land out of those limits, but comprised within the erroneous deed executed by him to the appellee, yet that it would have been more regular to direct a release from the appellee, to-the appellants who are the heirs of said Jacob Blessing deceased, of the land thus improperly conveyed. It is therefore considered by the court that the appellee do execute, to those of the appellants who are the heirs of said Jacob Blessing deceased, a good and sufficient deed of release for the land last mentioned. Therefore it is adjudged, ordered and decreed that the said decree, thus amended in the particulars aforesaid, be affirmed, and that the appellant Bowen out of the estate of his testator, and the other appellants out of their own estates, pay to the appellee his costs.