#### Neal v. Logan &c.

May, 1844,

Richmond.

(Absent Brooke, J.)

Contracts—Sale of Land by the Acre—Deficiency— Rights of Purchaser.*—On a sale of land by the ■ acre, the written terms of sale, after stating the quantity to be believed to be 1049 acres, proceeded thus, "the purchaser will be bound to pay for that quantity, unless he shews, by a survey made at his own expense, within twelve months, that the quantity is less; in which case, if notice shall have been given of the time of the survey, the bonds (for the purchase money) shall be credited for the deficiency.” The land was surveyed within twelve months, and there appeared to be but 862M acres; but no notice of the survey was given. Held, nevertheless, that the purchaser is entitled to relief for the deficiency; though the survey made, is not to be taken as ascertaining its extent. That must be ascertained by a survey, of which the parties interested have notice.

In the year 1826, Edward R. Chambers conveyed to Richard Bogan a tract of land lying in the county of Eunenburg, said to contain one thousand and forty-nine acres,' in trust, to secure the payment of a sum of money to Judith W. Chambers.

In 1832, Bogan, in pursuance of the provisions of the trust deed, proceeded to sell this land at public auction, *when Thomas Neal became the purchaser thereof, at the price of 3 dollars 15 cents per acre, on a credit of one and' two years. The sale was by the acre; and the written terms of sale, after stating the quantity “to be believed to be 1049 acres,” proceeded thus, “the purchaser will be bound to pay for that quantity, unless he shews by a survey made at his own expense, within twelve months, that the quantity is less; in which case, if notice shall have been given of the time of the. survey, the bonds (for the purchase money) shall be credited for the deficiency.” The land was surveyed within twelve months from the time of sale, and by that survey the quantity appeared to be but 862% acres; but it did not appear that notice was given to the other parties interested, of the time of such survey.

Neal having executed his bonds for the .purchase money, and conveyed the land to William Bogan in trust to secure its payment; the trustee was about to proceed to sell the land under this deed, when Neal obtained an injunction to stay his proceedings, as to so much of the purchase money as was equal to the ostensible deficiency in the land: but when the cause came on for final hearing, the court below dissolved the injunction, and dismissed the bill. Erom that decree this appeal was allowed.

Spooner, for the appellant.

Beigh, for the appellee.

*

Sale of Land by the Acre.—See *foot-note*to Triplett v. Allen, 26 Gratt. 722; *foot-note*to Watson v. Hoy, 28 Gratt. 698.

STANARD, J.,

after stating the case, said—-The decree of the superior court denies the appellant any relief for the -deficiency ; and the question is, was this decree *correct?*

The land was offered by the acre, and was purchased at so much per acre. Upon-such a sale and purchase, without any stipulation as to allowance for deficiency in the supposed or estimated quantity, it is, I think, not *to be questioned, that the general principles of law would have entitled the purchaser to an abatement from -the purchase money for a material deficiency in quantity; the claim therefor being ascertained and asserted, within a reasonable time.

Does the special stipulation in this case deprive the purchaser of the protection, to which on general principles of law and equity governing contracts of sales and purchases *by*the .acre, he would be entitled.

According to one interpretation of the written terms of sale, and that which is insisted on by the appellee, the right to any allowance for deficiency is entirely conditional ; and did not ensue, but on the strict performance of that condition. And the condition, according to the same interpretation, was a survey on notice within twelve months from the sale.

If such were the explicit stipulations, and they strengthened by express negation of all right to allowance for deficiency, unless that was ascertained by a survey on notice within twelve months, it would not, in-my opinion, necessarily follow that a failure to have a survey on notice within twelve months would destroy all title in law or equity to allowance-for a deficiency. The sale and purchase having been by the acre, the right to such allowance was by principles of law and equ^' inherent therein; and special stipulations to modify this inherent quality of such a contract, and destroy .it on events which may furnish no measure whatever of loss on the one side or *23gain on the other from their occurrence, take the tone of, and should, unless under very special circumstances, be treated as penalties, and relievable in a court of equity. In this case no loss on the one side or gain on the other, is even suggested as the consequence of the failure of a literal compliance in giving notice of the survey that in this case was actuallj' made within twelve months: and therefore were it conceded that the appellee’s interpretation of the written *terms of sale is correct; I think in eauity, the effect thereof on the appellant’s title to allowance for the deficiency should be considered as a forfeiture, and would- be relievable in equitj'.

But I think the appellee’s interpretation of the terms of sale is too strict and literal. By-these terms the notice of the survey is not made indispensable to the title to the allowance. The survey is to be made within twelve months, and if not so made, the title to the allowance for deficiency would be in strictness lost or forfeited. The secondary provision as to notice of the survey, makes that the condition, not of title to any allowance for deficiency, but the condition on which the survey should ascertain and liquidate the amount of that right, and give a peremptory title to the liquidated credit on the bonds. The only consequence of not giving notice of the survey, is to deti3’ the survey any binding obligation on the vendor; and the purchaser had no right to any precisely ascertained credit on his bonds, until the deficiency was ascertained by a survey, of which both parties had notice.

My opinion is that the decree be reversed; the injunction reinstated, and the cause remanded, with instructions to direct a survey of the land, to ascertain its quantity; and should there be a deficiency to relieve the appellant by perpetuation of the injunction or otherwise, for an amount equal to the deficiency of the land, at the rate at which it was sold; that amount being applied in moieties, as credits against the principal of the two bonds given for the purchase money, or if the bonds should have been paid, by decreeing the said moieties, with interest from the maturity of the bonds respectively, to be paid by the party or parties that may appear responsible therefor.

The other judges concurred.