Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-22


On the 10th of October 1855, Mitchell sold to Sc
ward and Scales for the consideration of S8596,50
valuable tract of land in the county of Gibson de-
scrbed in the deed of that date by metes and bounds
containing 52l acres, being part of 5000 acre
tract granted to George Dougherty and bounded as
follows &C. The title is warranted with the usual
covenants, but. nothing said about the quanti-
ty than what is above recited
Sometime after the deed was made the parties
differing to the quantity of land embraced in the
tract made an that it should be surveyed
bv Gilespie and if there were more than 52l acres
the vendees should pay for the at the rates
of $3.50 per acre, that being the price az which
the sale was made, and if less the vendor should
pay for the deficiency at the same rate. 1t turned
out that there was an excess of 81 acres, and the
tract embraced in the deed was SIS instead of 52l
as estimated in the sale. For this excess the pre-
sent suit was brought and recovery had for Sl079.
1t is objected here that the Court below erred in
refusing charge requested, that the agreement
sued upon was void for want of writing and be-
cause there was no consideration for the promise.
l. The contract or promise sued upon is not for
the sale of land so as to require writing under the
statutes of frauds. The sale had already been
duced as writing This was subsequent collater
al agreement in relation to the price which was
binding by parOl sndo which the statute have no
application whatever. This is too plain for argu-
ment.
2 There is rather more plausibility in the second
objection that there sufficient consideration
for the promise. But this is also untenable. The
argument is that the deed embraced the whole
tract and passed perfect title the extent of the
boundaries and consequently there was nothing pass
ing as consideration for the new promise the party
did not own before by perfect legal right 1t is
true that if the sale by tract, and not by the
acre appears from the deed, and stipuatons as
10 quantity, that the title good for the whole
and covered the excess But if the sale was not in
gross by the acre, and the recitation in the deed
would not be conclusive in court of equity on that
point, if the fact could be shown TO be otherwise
then there would be no mutual remedies for
excess or deficiency IN proper cases, we
held in Miller vs. Bently, Sneed, and more recent
case But, independently of that, and taking it to
have been purely sale in gross, and both parties
desiring to act justly and being of different opinions
as to the quantity mutually agreed to abide by an
actual survey to ascertain which was bound to pay
and recover from the other and what amount, we
see no good reason in law morals why such an
agreement should not be binding upon them. The
case Of Hove VS.. O'Hally, Murphy's Lex. Egg. Z.
2S7 is precisely in point The court there held that
a promise for promise to pay for any excess over
what is called for in the deed, that such mutual
promises sufficient considerations for each other
The case of Smith VS.. Ware - John Rep. 259
which is supposed to conflict with this, is entirely
different There the court say, there mu-
tuality,' because the promise sued upon to pay
for the deficiency. without any obligation On the
other party to pay for an excess if any there had
been. The principle of the North Carolina case
itself to appreciation, because of its
equity and justice
Without further citations of authorities we are
satisfied TO hold, that the promise in this
binding upon the defendant, as his Honor charged.
and, therefore, affirm the judgment