#### *D. H. Harbers*vs. *T. N. Gadsden.*

Where the vendor, in the agreement to sell, misdescribes the quality of the land, the vendee may insist Upon a specific performance with proper abatement in the price.

*Before*Wakdlaw, Oh., *at Charleston,*June, 1853.

Every thing necessary to a proper understanding of this case is contained in the circuit decree, which is as follows :

Wardlaw, Oh. Defendant being owner of a parcel of unimproved land in the upper wards of the City of Charleston, procured the same to be divided into building lots by the City Surveyor, and afterwards s.old a large number of these lots at public auction, according to the representations thereof on the plat of said surveyor. At this sale, plaintiff bid off for #650,. lot No. 112, at the corner of Spring and Chesnut streets, which was represented on the plat to consist of high land and marsh in nearly equal portions, whereas, in fact, it is all marsh land, and less valuable than it would have been if a large portion of it were high land.

Plaintiff, by this bill, seeks to compel the defendant to specific performance of this contract of sale, with proper abatement in the price for defendant’s misdescription of the lot. Defendant, in his answer, admits the contract and the representation, offers to convey the lot to the plaintiff for the price bid, or to rescind the contract — and insists that the plaintiff should be left to his remedy at law, and that this Court should not undertake to enforce a modified contract into which the parties never entered.

Where the vendor is incapable of making a complete title to all the property sold, or in the agreement to sell, has misde-scribed it in important particulars, the Court will not hear from him the objection, that although he has part — he has not the whole estate as described and sold, but will compel him, if the purchaser so chooses, to execute so much of the contract as he is able, with abatement in the price. Story Eq. § 797; *Mortlock*
      *285vs. *Butter,*10 Ves. 315; *Milligan*vs. *Cooke,*16 Ves. 1; *Thomas*vs. *Dering,*1 Keen, 729. In *Graham*vs. *Oliver,*cited in a note to this last case, Lord Langdale remarks, that this partial performance is somewhat incorrectly called a specific •performance ; and he says in the principal case in substance, that there are great difficulties in the exercise of the jurisdiction in cases which are not very clear and simple. The *cypres*execution of contracts given in these cases, is in fact the execution of new contracts which the parties did not enter into, in which there is no mutuality, and in which it is frequently difficult to ascertain the just price. It is more easy to compute a just compensation, where it is to be given for defect in the quantity or quality of the land sold, than where given for deficiency in the vendor’s interest; where reversioners or others may be prejudiced by partial alienation.

In the present case, there can be no great difficulty in adjusting the proper abatement; and the general rule allowing option to the purchaser to have execution *pro tanto*must be followed.

It is ordered and decreed, that it be referred to one of the Masters to ascertain and report what abatement should be made from the price bid by the plaintiff on account of defendant’s misdescription of the quality of the lot: and that upon plaintiff’s paying and securing to be paid the balance of the purchase money according to the terms of the contract, defendant execute to plaintiff a conveyance in fee with general warranty of the lot in question. Let defendant pay the costs.

The defendant appealed, because, the plaintiff made no case which entitled him to the relief he asked, and which was decreed by the Court.

*Magrath,*for appellant.

-- contra.

*Per Curiam.*

We concur in the decree, which is hereby affirmed, and the appeal dismissed.

Johnston, Dunkin, and Wardlaw, CC., concurring.

*Appeal dismissed.*