Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-04-06
OFFICIAL.
opinions of she SH brenae Court Of the state
of Tennessee, at Knoxville, september
Terms 1855.


W. Miller and wife Benjamin Bentley Benjamin Bent
ley 80. GeO. W. Miller and wife, (erSss ball.
On 9Th Nov 1876, Miller and wife contracted in
writing 10 sell 4447 acres Of land 20 cents per
acre, lying in BiedsOs county, State Of TOnnssses
The boundaries are given, and the terms OF payment
set foTth-S600 down in 200 sheep and the balance
on time. On the LIST day Of May, I54T a deed was
made with covenants of seisen and warranty The
deed ecites that 'fOr the consideration Of $Ss9 40
10 them il haOd paid they have sold, aad do con
vey the said Benz. Bentley aud his heirs s.tbe fol-
lowing described tract Of land" and then gives a
description by notes, and concludes, containing
four thousand four hundred aud forty seven acres
In addition TO the sheePa 5000, the defendant paid
500, leaving $lS9 unpaid. Miller and wife fled
their original bill for the balance due aud claiming
that at the time Of the contract sale cut of the
quantity sold, 2jO acres were excepted having
been sold to one Thompson, and thaG the complain
ant was requested ts pTOeUre il fIOm Thompson al
such price could be agreed upon and that was to
be paid by the defendant and that be did procure il
at 75 cents per and included il in the deed by
which the consideration would be to that extent
augmented. All this is denied in the answer aud
an angfy controversy arises upon it. Il seems that
the complainant had ineFined that fact in The copy
Of the written authority ,f Bentley and who agreed
to do the in his cepy. Tbis is positively de.
MED. Upon this question OF fact much proof is
ken as o charge Of perjury is made by each party
against the other, and that of fogery in addition
against complainant This is put cut Of the cas by
the decree or the Chancellor VINO found that the al
legation Of the complainant on that point was not
sustained by the evidence and as We think correct
ly. But Bentley by his cross bill raises some quss-
tions which are properly before He insists
that upon an accurate surrey CT the land according
TO the boundaries given it falls short of the qusn
tty sold by about 1900 acres, and that within the
boundaries there older and better claims 10 the
extent Of asOut-- acres For ali this be claims
to be allOWed by deduction from the amount agreed
TO be given, be applied 10 the extiBguishmeut Of
the bslaLee of $lSy, and the remsindsr 10 be re-
funded TO him.
Upon these matters there was c reference TO the
master. and aTepOrt made by which, as6nally adopt
ed and dseroed BY the court appears Ihas The de
fciency in quantity is 1924 acres, aud the quantity
taken by iaterferenee of older and better claims is
lSS acres The first is valued at the oontrsct price
Of 70 cents per acre. and the last al what Il
supposed TO be Eor,h t0sEit: 10 acres at ST. and 5
acres at 81 per acre The whole loss is S537 &C.
That amount less the balance due on the purchase
viz: SIS9 40, is deereed 10 Ben'ly under his er9ss
BILL and the defeLd4R bring the case hete by ap-
peal from the action Cf The court upon his eYcep-
iiOnst the report, raising several questions.
The fret question, that arsss is the abatement
be made for the dsEoIency in qu nifty! The def
cheney here is about third There is no express
sti pulation that it shall contain certain quanfity
but the Q es AMI bOuDdsare gwen, aud the qusn
tT is stated 90 be 4447 The contract reduced
10 writing Nov, 1876 is for 444I acres, at 20 cents
p,r acre The deed made the next May is in aea-
rral terms stating the consideration to be $3.50 40
and the quantty Of land to be as stated in the con
tract IL is correctly argued that when sle Is in
gross and Eot 10y the acre and ID ere is fraud the
purchaser takes it at his risk as to the ausut
iy, unless thsd icieney be very great, so much So
as to create presumption Of fraud But here the
sale vas not in gross but by the acre The contract
Of sales was in Nov, '46 and not when the deed was
made IA Mar, 1897 that Was only the execution OF
eontrac, 80 the ciIed Of Allison vs Allison Yer
and Meak rs. Besrden, Yerger, d. a1t apply the
case so ss sustain argument. They relate to sales
in gross aud not BY the acre The FIRST case was at
law bat the last in equity, but principle settled
seems 10 be the ssme that is where the boundaries
are given correctly, ia the contract Of sales and
III, re is no stipulation quaafiy nor any fraud
il is sale in gross, and no deduction IN the prics
IN be made for deficiency ia quantity 2ud Can
The complainant 10 the cross-bill be allowed the
value OF the older and better claims, within the
b n dariss sold 20 him! We think that question
was properly decided by the Chancellor Il is true
that a claim for failure Of title upon a warranty
cannot be set up either in Law equity until affer
yietion But in this case there are covenants of
seizure SO Besides it is not required 10 wait for
eviction IN when the tile and possession Is in
haOther at the time Of ale. That would be an 40,
surdty, there could be no technical eviction in
such 8 case. As the complainant files his bill for
the bslsuce Of the consideration he must ssttIs
the whole matter, and is subject TO decree against
himself if the balance is 50 found We think the
decree is right both points and it will be affirmed
CARUrHERs.
Atrus copy. Attest: c. W. NzLsoz, Clerk.
BUTTREBi BUTFERI !! BUTTER III
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