#### *Crawford and Another v. M'Daniel.

December, 1842,

Richmond.

(Absent Cabell, P.)

Vendor and Vendee—Deficiency in Quantity of Land Sold—Compensation.*—A deed of bargain and sale conveys a tract of land described as "containing by survey 785 acres, and bounded as follows, to wit, beginning” &c. (here certain metes and bounds were set out) “this part containing 765 acres, and another part attached to the same tract containing 20 acres, and making up the full amount of 785 acres, being bounded as follows,” &c.—the price stated in the deed being 11775 dollars, which is the product of 785 acres at 15 dollars per acre, and there being no evidence but the deed itself of the terms of the contract between the vendor and vendee. It turns out that the tract contains less than 785 acres. Held, the vendee is entitled to compensation for the deficiency.

Same—Sale by Acre—Right of Surveying.—Where there is a sale of land by the acre, a right of surveying exists whether expressly reserved or not, and if no time is limited for making the election to survey, it may be done at any time before the whole business is closed between the parties. Accord. Nelson v. Carrington & others, 4 Munf. 322, and Carter v. Campbell, Gilm. 170.

*311Same- Purchase Money—Judgment for†—Injunction to—Dissolution—Damages—lixtent of Relief.— T3ie vendee of land inioins a judgment recovered against Mm for a balance of the purchase money, alleging a defect in the title to the land, which he fails to prove, whereupon the injunction is dissolved and the hill dismissed. Afterwards he brings another suit, in which he establishes his right to compensation, for a deficiency in the quantity of the land, to an amount equal to the unpaid balance of the purchase money. Held, he is entitled to relief as well against the damages accrued on the dissolution of the first injunction, as against the j udgment at law.

AssigKiiUííUí - Assignees of *Purcha.se*.Money—Rights oi —A bond for purchase money of land, executed by the vendee to one of the vendors, being assigned by the obligee to another of the vendors and a third person, the vendee brings a .suit in equity against the vendors and assignees, and obtains relief against the payment of the bond; but held that in the condition of the cause there is nothing to justify a decree oyer in favour of the assignees.

Same—Same--Saicae.--The vendee of land having paid a part of the purchase money to the assignee oi his bond for the same, it turns out that the quantity of the land is deficient, and that the money already paid to the assignee is more than the vendee was bound to pay. Held, he has no equity to recover back the excess from the assignee.

Vessdoí* and Vendee —Suit by Surviving Vendee for Compensation—Parties.--After judgment recovered by vendor against two joint vendees of land tor a balance of the purchase money, one of the vendees dies, and the other brings a suit in equity against the vendor, alleging and proving a deficiency in the quantity of the land to avalué exceeding the unpaid balance of the purchase money, and claiming that the judgment be in-joined and the overpaid money refunded. Held, it is *improper*to decree *in*the cause without having the representatives of the deceased vendee before the court: dissentiente Stanaud, ,T.

Appeal by Sophia Crawford and Alden B. Spooner from a final decree of the circuit superior court of law and chancery for the town of Dynchburg-, pronounced on the 18th of January 1832, in a suit in chancery, in which John M2 Daniel was plaintiff, and the said Sophia Crawford and Alden B. Spooner with others were defendants: by which decree a perpetual injunction was awarded against all further proceedings on a judgment obtained by Crawford and Spooner, as assignees of William Vannerson, against M’Daniel, and they were directed to pay him the sum of 292 dollars 50 cents, with interest thereon from the 17th of November 1820 till paid, and costs.

The material facts of the case were as follows:

In October 1816, (he said John M’Daniel and a certain Richard Jones jointly purchased of John Patton and Sarah his wife, William Vannerson and Henrietta his wife, and A. B. Spooner and Elizabeth his wife, a parcel of land in the county of Amherst, for the sum of 11775 dollars, and received a deed therefor, bearing date the 17th of October 1816, in which the land is described as “containing by survey 785 acres, and bounded as follows, to wit, beginning” &c. (here certain metes and bounds were set out) “this part containing 765 acres, and another part at(ached to the same tract containing 20 acres, and making up the full amount of 785 acres, being bounded as follows (here the metes and bounds were given; and then the deed proceeded --) “to have and to hold the said tract and ^parcel of land containing 785 acres described and bounded as aforesaid, with the hereditaments &c. unto the said John M’Daniel and Richard Jones, their heirs and assigns forever.”

M’Daniel and Jones paid all the purchase money of the land except 600 dollars, part of a bond for 1804 dollars 40 cents, payable the 17th of November 1820, which they had executed to William Vannerson, by whom it was assigned to Sophia Crawford and A. B. Spooner. This balance they refused to pay, alleging that the title to part of the land was defective; whereupon the assignees brought a suit against them on the bond in the superior court of law for Amherst county, recovered a judgment, and took out execution, under which M’Daniel gave a forthcoming bond with surety. By a suit in the superior court of chancery for the Lynchburg district, M’Daniel and Jones injoined the judgment, upon the ground of the alleged defect in the vendors’ title to part of the land : but at the final hearing on the 10th of May 1828, the court dissolved the injunction and dismissed the bill. Crawford and Spooner then moved for and obtained judgment in the superior court of Amherst on the forthcoming bond executed by M’Daniel, which judgment included 431 dollars damages in lieu of interest for the time the injunction had been pending ; and proceeded to sue out execution thereon.

Whereupon, in October 1828, M’Daniel (Jones being- now dead) filed a new bill in the superior court of chancery of Lynch-burg, alleging, that at the time the first suit was brought, and during its progress, neither he nor Jones knew of any other equity against the payment of the purchase money, than the supposed defect of title on which they relied in that suit; but that since Jones’s death he had discovered by a survey made for the purpose of a partition between himself and Jones’s representa*312tives, that the tract, instead of 785 acres, Contained only 734, so that it was deficient in quantity 51 acres. This survey he alleged to have been made by John Pryor, the deputy surveyor of Amherst county. The purchase of the land, he insisted, was by the acre, at the price of 15 dollars per acre; and for the deficiency in the quantity, he claimed that the judgment against him on the forthcoming bond should be injoined, and that the money which had been overpaid should be refunded. The defendants to this bill were Sophia Crawford and A. B. Spooner, as assignees of Vannerson, and the aforesaid vendois and their wives; that is, John Patton and wife, William Vannerson and wife, and A. B. Spooner and wife. Jones’s representatives were not parties, either plaintiffs or defendants.

The injunction prayed by the bill was awarded.

Answers were put in by the defendants Sophia Crawford, Spooner and wife, and Vannerson and wife, denying the sale by the acre, and the alleged deficiency, and insisting that the sale was in gross. Process was served on the defendants Patton and wife, but they never answered.

The court directed another survey of the land, which was made by the same John Pryor, deputy surveyor of Amherst, who had before made a survey for Jones. According to this last survey, the whole tract contained but 725% acres, being 59% acres less than the quantity called for by the deed.

The only deposition filed in the cause was that of a witness for the defendants, which was excepted to by the plaintiff and disregarded by the court.

At the final hearing, the circuit superior court for the town of Lynchburg (to which the cause had been regularly transferred) held that the sale was by the acre; that the deficiency was 59%acres, which, at 15 dollars per acre, entitled the plaintiff to an abatement from the purchase money equal to 892 dollars 50 cents; that the plaintiff was therefore entitled to a perpetual injunction *to the judgment at law, and, deducting 600 dollars, the balance of principal money remaining due on the assigned bond, from the 892 dollars 50 cents, was entitled to recover back 292 dollars 50 cents, with interest from the date when the assigned bond fell due, viz. the 17th of November 1820; and thereupon rendered the decree above mentioned.

’ In their petition, the appellants insisted that the decree was erroneous for the following reasons:

1. Because Jones’s representatives not being parties to the suit, the questions made by the bill could not properly be adjudged by the court.

2. Because after the long acquiescence in the first survey, which, after all, was probably as near the truth as either of the two subsequent surveys; and after one bill of injunction entertained, heard and dis-1 missed, the court ought not to have entertained this'bill.

3. If any relief at all should have been granted, that relief ought to have beqn against the vendors of the land, not against the assignees of one of the bonds executed to one of the vendors. If the court ought to have injoined the balance due on the bond, it should have made the vendors of the land pay the whole amount injoined. And as to the surplus over and above that balance, there was no pretence for decreeing that against the assignees. It was neither alleged nor proved that they had received it; and if it had been so alleged and proved, still there would have been no equity for the plaintiff to recover it back from them.

4. Because one half the surplus, if due from the defendants at all, was due to Jones’s representatives and not to M’Daniel.

In the argument of the cause in this court, by C. and G. N. Johnson for the appellants, and Leigh for the appellee,

besides the points above stated, another question *was discussed; namely, whether the second injunction could properly be extended to the damages accruing upon the dissolution of the first?

*

Sale by the Acre—Contracts of Hazard.— See *footnote*to Triplett v. Allen, 26 Gratt. 721.

The principal case is cited in Boschen v. Jurgens, 92 Va. 759, 24 S. E., Rep. 390. The authorities upon this subject will be found collected in *foot-note*to Blessing v. Beatty, 1 Rob. 287.

Sale in Gross or by the Acre—Price Multiple of Number of Acres.—in Crislip v. Cain, 19 W. Va. 545, the court said: “The case of *Crawford v. McDaniel,*1 *Rob.*448, was decided by the same court, and the facts were substantially the same as in the case of Blessing v. Beatty (1 Rob. 287), except that the price of the land was an exact multiple of the number of acres and the court allowed the vendee an abatement for the purchase monel' on the face of the contract, there being no proof in the case except the deficiency in the land. The decision was clearly right, as on the face of the contract and this proof the vendor would be regarded as guilty of a legal fraud; but the court following the views of Judge Baldwin, decided it on. the ground of a mutual mistake. Judge Sherrard concurs in this decision basing his opinion on the fact, that the price was a multiple of the number of acres stated in the contract, and therefore it was to be regarded as a sale by the acre. This I submit is in direct conflict with the case of Bierne v. Erskine, 5 Leigh 59, where j ust such a contract was held to be *prima fade*a sale in gross but as ambiguous and admitting therefore in aid of its interpretation proof of the conduct of the parties in carrying it into execution: and because of this proof only was the contract in that case interpreted to be a contract by the acre. But in the case of *Crawford v. McDaniel,*2 *Rob.*448, it was unimportant, whether it was a contract by the acre or not, inasmuch as there was a deficiency, and the vendor was, as I conceive, responsible therefor because of his presumed fraud in the absence of evidence. And I cannot regard the unsound reasons assigned for the decisions as sufficient to overthrow the large number of Virginia decisions sustained by authorities else*311where, which are irreconcilable with the reasons assigned in these two decisions, but which are in perfect accord with the decisions themselves.’'

SMe oi Laud - Deficiency in Quantity—Rtaie of Abatement. - The principal case is cited in Depue v. ñergen L 21 *W.*Va. 345. for the proposition that, the genet al rule in the case of an abatement on account of deficiency in the quantity of land sold, is to allow for deficiency the average price of the whole land.

*See foot-note to*Blessing v. Beatty, 1 Rob. 287.

†

Msidgmejsts ~ Injunction by Person Not Party- -Liability.--if a person, not a party to a judgment, enjoins it. and the injunction is dissolved, he is liable to pay the ten per cent, damages prescribed by the statute. Claytor v. Anthony, 15 Gratt. 518, 523. citing and reconciling the principal case.

ALLEN, J.

There is no difficulty on the main point in controversy between these parties. The right of the vendees to compensation for the deficiency in the quantity of land sold is clear. The evidence of the contract is contained in the deed. The land is described as containing by survey 785 acres. Two adjoining tracts are conveyed. After describing the first tract by metes and bounds, the deed contains the following clause: “this part containing 765 acres; and another part attached to the same tract, containing 20 acres, and making up the full amount of 785 acres:” shewing very clearly that no hazard was contemplated. Each party laboured' under a mistake; each supposed he was dealing for a specific quantity. The consideration to be paid shews that the price was 15 dollars per acre. This I do not consider as material, except as furnishing evidence of the character of the agreement, and that the parties dealt for the land under the impression that it contained a certain quantity; that it was this specific quantity the vendors contracted to sell, and the vendees to purchase. In tt>e case of Blessing’s adm’rs v. Beatty,* all the decisions of this court were reviewed by judge Baldwin. The principle deduced from them was, that equity entertains jurisdiction and gives relief upon the ground of mistake: that the question is not affected, whether the sale was at so much per acre, or a sale of a tract supposed by both parties to contain a certain number of acres, for an aggregate sum or gross price: that in either case, if there was a mistake as to the quantity, equity will relieve, and give compensation for the excess or deficiency, though no *313fraud or misrepresentation ^appear. In the opinion then delivered I fully concurred.

Nor is there any thing in the conduct of the parties, or the time of filing the bill, which affects the claim to relief. A previous injunction had been obtained, because of some alleged defect of title. In this the purchasers failed. The mistake as to quantity was not discovered until afterwards ; and thereupon this bill was filed. The cases of Nelson v. Carrington & others, 4 Munf. 332, and Carter v. Campbell, Gilmer 170, shew that where there is a sale by the acre, a right of surveying exists, whether expressly reserved or not, and that if no time is limited for making the election to survey, it may be done at any time before the whole business is closed between the parties.

The decree injoined not only the principal due, but the damages which accrued during the pendency of the previous injunction. As that injunction was dissolved and the bill dismissed, the defendants insist on their right to those damages, and that their claim to them rests on the same foundation with their claim to the costs incurred in that suit. The question seems not to have been expressly decided, though it was presented in the case of Carter v. Campbell, before cited. In that case there had been a previous injunction, which had been dissolved, and a suit and judgment on the injunction bond. A deficiency being made out in the second suit, both damages and principal were enjoined. The decree as to this was affirmed, but the particular question now raised was not discussed. It seems to me there is nothing in it. The interest accrued is always in joined. And damages are given in lieu of interest. They are entire. The court has no right to divide them, and say that 6 per cent, as interest shall follow the principal, and 4 per cent, "be recovered as a penalty. Being allowed by way of interest, though denominated damages, they are an incident to the main subject. The last suit ^ascertains that the money was never due; and damages ought not to be allowed for withholding money to which the party was not entitled.

So far I think the decree right. But errors have been committed in the details, for which it must be reversed.

The vendees purchased from three individuals and their wives, the husbands holding in right of their wives. A bond executed by the purchasers to one of the vendors, was by him assigned to another of the vendors and a third person. A portion of this bond (600 dollars) being unpaid, the assignees recovered a judgment for the amount against the purchasers. This judgment was injoined. It is ascertained that on allowing for the deficiency, the bond is extinguished, and the purchasers have overpaid for the land actually conveyed. So far as the decree injoins the judgment, it was correct. In the actual condition of the cause, it would have been improper to decree over in favour of the assignees, against the assignor of the vendors. One of the assignees occupied both relations, of vendor and assignee. There was nothing to shew the state of accounts between the vendors; and the pmrehasers had nothing to do with this matter. By taking the assignment, the assignees occupy the position of the assignor, so far as the purchasers are concerned. Whether the assignees will be entitled to recover from the assignor, will depend on the contract between them. No issue is made up in this case between them, nor any admissions made, which would justify the court in decreeing over against the assignor for the amount of the bond.

But the decree not only injoins the judgment, but makes the assignees liable for the amount overpaid by the purchasers. It does not appear upon what ground they were held responsible for this excess. The bond assigned to them had been partially paid, though to whom does not appear. The court, perhaps considering that they had received all but the balance, held *them liable for that reason. As assignees they had a right to receive all that was voluntarily paid to them. It was paid without any notice of the plaintiff’s equity, and they are entitled to hold what they legally received. The remedy of the plaintiff for the excess is against the vendors, and not the assignees, who have equal equity and the legal possession.

It seems to me that the court also erred in rendering any decree without having the representatives of Jones before it. M’Daniel and Jones were joint purchasers, received a joint conveyance, executed their joint notes for the purchase money, were jointly sued, and were joint plaintiffs in the first injunction. Jones afterwards died, and M’Daniel filed the present bill without joining the representatives of Jones as plaintiffs, or making them parties.

■The general rule that all persons materially interested should be made parties, is too familiar to require authorit3r to support it. And in regard to the nature of the interest, it is wholly unimportant whether it be a legal or an equitable interest of the absent parties in the subject matter of the suit. Story’s E)q. Pleading 137. This constitutes one of the leading distinctions between proceedings at law and in equity. A person with a mere equitable or remote interest cannot sue at law, and if he be improperly joined, the suit *tas.y*fail. The analogies, therefore, derived from legal proceedings do not apply. Conceding that the right to recover here was a joint right which survived, and that M’Daniel might therefore have sued at law, it is equall3r clear that the representatives of Jones had an interest in the suit, so far as it went fo establish a deficiency, and, for any thing appearing, a right to a moiety, possibly to the whole, of the money overpaid. Serious injustice might be sustained by them if the quesiton of deficiency is to be determined in their absence; and a total *314loss inflicted on them, if the survivor be permitted to pocket the excess ^recovered. Whenever there is a community of interest between the parties, which may be affected by the decree, they should all be before the court. Thus in case of joint bonds or obligations, all the parties, obligors and obligees, are required to be made parties to the suit. 16 Vesey 326; Story’s Eq. Pleading 159. And the same rule is applied where one of the obligors is dead; for in such case his personal representatives, as well as the survivors, must be made parties to a suit in equity brought for payment of the debt, whether it be for payment by the survivors alone, or out of the assets of the deceased. It seems to me that the correlative of the rule thus laid down is equally true, and that the representatives of the joint purchaser should be made parties here. In reality, this case is stronger than cases growing out of joint bonds, partnerships, and the like. These were joint purchasers of land. The right of survivorship as to the land is taken away; and though the breach here may have been incurred in the lifetime of both, yet it was an incident to a subject which did not survive, and in a suit to ascertain the extent of the breach, the amount of the deficiency, the representatives of the decedent were necessary parties. Eor this cause also, I think that the decree must be reversed, and the cause remanded in order that the representatives of Jones may be brought before the court.

BROOKE and BALDWIN, J., concurred in the opinion of Allen, J.

*

Reported *ante,*p. 287.

STANARD, J.

Notwithstanding I dissented from the majority of the court that decided the case of Blessing’s ad'm’rs v. Beatty, and still retain the opinion I formed of that case, I entirely concur in the opinion of my brother Allen on the main question in this case, respecting the right of the purchaser to an abatement from the purchase money for the deficiency of the land. In this *case the proof is satisfactory that the sale was by the acre, and not in gross. I think it a sound general rule, that where the purchase money of a tract of land is a multiple of the number of acres specified as the contents of the tract, at a rate per acre in pounds, shillings and pence, or dollars and cents, corresponding with coins in use, or not being fractional, the just implication is, that the purchase money is ascertained by the multiplication of a rate per acre by the number of acres specified, and that the sale and purchase is by the acre; and in such a case the purchaser is entitled to an abatement for a deficiency, and is chargeable for the excess, unless such implication be controlled by express stipulation, or other satisfactory evidence ascertaining that such was not the real contract. This case furnishes this ground of implication, and much to strengthen, and nothing to impair or control it. On the contrary, where a tract of land by given metes and bounds, the contents or supposed contents of which are specified, is sold for a gross sum, not a multiple of the specified number of acres, but which would make a fractional rate per acre, not corresponding with any coins in use, or aggregations thereof, the just implication is, that the sale is by the tract in gross, and the specification of the number of acres but descriptive of the tract; and in such case the purchaser is entitled to the land comprehended within the designated metes and bounds, without right to abatement if the quantity be less than that specified, and without liability if it be greater. Such, I thought, was the nature of the sale in the case of Blessing’s adm’rs v. Beatty, furnishing an ample foundation for the implication that the sale ivas in gross, and consequently that the purchaser was only entitled to have the land within the specified metes and bounds, and getting that, was not entitled to recover for the deficiency of quantity, and would not have been responsible had there been an excess. I thought there was nothing in the case to control *that implication, but much to reinforce it, and require the application of the general rule I have before indicated.

I do not concur in that part of the opinion which respects the necessity of making the representatives of Jones parties. The claim is for money jointly paid, or paid on joint account, upon a joint contract with M’Daniel and Jones, the consideration of which has failed. While Jones lived, it was a joint demand of himself and M’Daniel on the vendors, for money, and for money only. That demand, and the right at law to sue for it, survived to M’Daniel. It may be, that on adjusting the account of the joint purchase between the joint purchasers, they would be entitled to the amount of this demand in moieties, or in unequal shares, or one of them be entitled to the whole. But in this the vendors liable to the demand have no interest. They are discharged by accounting to the survivor, to whom the legal right to this joint pecuniary demand has survived. The only plausible reason for requiring that Jones’s representatives should be parties would be, that the rights of the joint purchasers in the money that may be recovered should be adjusted, and their respective shares thereof decreed. Now this could not be done without involving in this case a settlement between the joint purchasers. In this settlement the vendors have no interest. On the one hand, this absence of interest precludes the parties liable to the demand from the right to require Jones’s representatives to be made parties. On the other hand, I apprehend, those parties might justly object that the case should be incumbered with such an account, or that it and they should be retained in court until that account might be adjusted.

The decree of the court of appeals declared, that there was no error in the decree of the circuit court in allowing for the deficiency of quantity of the land, *315and in *perpetuating the injunction; but that the said decree was erroneous in proceeding to de-.ree in the cause before the representatives of Richard Jones were *made*parties, and also in decreeing against the appellants for the sum of 292 dollars 50 cents, the amount overpaid by the purchasers of the land for the quantity actually conveyed : therefore it was decreed and ordered, that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed, with costs to the appellants. And the cause was remanded to the circuit court, with instructions to make the proper parties, and to be further proceeded in pursuant to the principles of the foregoing opinion and decree.