#### Joseph B. Littlejohn *v.*Jesse Isler.

Whore A. sold land to B.. for §5,100, with a permission to make a payment of §1,500 by a conveyance of two tracts of land in Tennessee, which should he of the value of three dollar's per acre according to the locator’s valuation; upon a bill by A. claiming the §1,500 in cash, it was held, to ho an executory agreement for an exchange of land, and that the default of B. in making the conveyance, and the want of a locator’s valuation were matters of compensation.

The defendant purchased of the plaintiff a house and lot in Granville, for which he was to pay, g5,100, part in cash and the residue in property,among which were two tracts of land in Tennessee, one containing 357 and the other 274 acres, which were to be of the value of three dollars per acre according to the locator’s valuation, and were estimated in making up the purchase money at St,500. A memorandum of the agreement was written and delivered to a third person for safe keeping.

The plaintiff admitted that the defendant had performed all his stipulation, except making him a title to the *303laud above mentioned; that lie tlie defendant had no ti-tie to oiie of the tracts, and that it never had been valued by the locator. He alleged that he had, from misplaced confidence, consented that the agreement should be delivered to the defendant. The bill prayed that the plaintiff might have a decree for the stipulated value of the land, or such relief as he was entitled to.

The defendant admitted that ho had not, at the time of his answer, procured a grant for the tract of *357*acres, and that it never had been valued by the locator, but he insisted that it was of the stipulated value, and that it was not valued at the time of its location, by mistake.

At the hearing, the defendant filed grants to himself for both the tracts, and a deed of bargain and sale from him to the plaintiff.

*Gaston*and *Devereux*for the plaintiff.

*Badger*for the defendant,

Danxee, Judge,

after stating the case, proceeded: The defendant has now a good title to the lands. The circumstance of the locator’s valuation not being endorsed on the entry of the 357 acre tract, is not such a misrepresentation as will authorise the plaintiff to waive the contract, which binds him to take the two tracts of land as part payment of the $5,100. As the defendant can now make an unexceptionable title to the two tracts of land, there would be no difficulty in decreeing the plaintiff to take them in payment of the $1500, according to the agreement, if the locator’s valuation of three dollars per acre, had been endorsed on both the entries. The plaintiff contends, that the 357 acre tract, is of little or no value. The defendant insists, that although the locator did not endorse on the entry any valuation, yet, it is land of that description that would have been valued by the locator, at the location, at three dollars per acre. From the interpretation which we think should be put on the contract, and in the absence of proof of any such misrepresentation as can operate to the injury of the plaintiff, wo think that the latter shall be bompelled to *304take a conveyance of tlie two tracts of land, but that it shall not operate as a complete discharge of the defendant from the entire payment of the $1500 mentioned in the agreement, unless the master shall report that the 357 acre tract is of that quality and description, which would at least have been valued at three dollars per acre, at the time of its location. We think that if the land is of a quality that would not have been valued by the locator at the time of location, at the price of three dollars per acre, then the defendant shall make up the difference in money. The bill will be retained, and it is ordered that the master enquire into the valuation per acre of the 357 acre tract, at the time it was located.

Buvfin Judge..

The construction which the Bill attempts to put upon the contract is, that it was a purchase by the defendant of the plaintiff’s house and land at a certain price in money, to be discharged in part, ou certain conditions, in *lands;*and the plaintiff is not now bound to take the land but is entitled *to*money, because the conditions have not been strictly performed. This construction cannot be supported. It is one of those hard and rigorous interpretations, which equity says, it is against conscience to make. The substance of the agreement is for the land on both sides; and is the common case of an executory contract, which will be specifically decreed here. It is however mainly insisted, that the agreement was for lands of a particular description, and that complainant is bound to receive none but such as come within it. It might he very necessary to consider the effect of this position, if the covenant extended to lands generally ; in which case perhaps the defendant must be held to have undertaken to procure such as he stipulated for, since the plaintiff had no opportunity of exercising his own judgment at all as to particular land at the time of entering into the agreement. But here it is clear that these identical lands were the subjects and exclusively the subjects to which the parties had reference. They do not say, the sum of $ 1500 is payable in any land to be valued jo *305that sum, without regard to situation, quantity or quality ; but in *two*tracts, *each*of a *■particular number*of acres and both then owned by the defendant and situate in Tennessee. These then were the very lands contemplated. And the question is brought-down to the common one, whether the vendor has described them to the ven-dee as having particular qualities; which, were essential to the purpose of the vendee in the purchase and without which he would not have bought them at all, because they were of no value to him *;*or whether the difference between them as described and as they turn out in fact to be, affects their value to the vendee only in such way as admits of compensation. Upon that there seems to be no reason to hesitate. They were described as having been valued by the locators at S3 per acre. They had not been so valued. But they yet may be ; and they may now turn out to be of that quality, which locators at the time valued at that price, or if they should not, the difference must be made up. A variance in this respect is not a ground for rescinding the contract, but ad-, mits of compensation ; and such compensation must be taken when the amount shall be ascertained by the master, to whom also either party may have a reference of the defendants’ title. It is a total perversion of the contract *to*say it ivas for money, or is now for money, for aught that has been made yet to appear.

Per Curiam.- — Direct a reeerence.