1810.

Hull

V.

APRIL, tisfaction of the bond; for it is not proved to have been accepted as full satisfaction; without which, such acceptance could not be pleaded in bar. The deed was for part of the land; conveying no more than Cunning ham was enti tled to. This was only part satisfaction, which Full had a right to receive, as such, and then to resort to his action for the residue.

Cunning

ham's Execu

tor.

(a) 1 Call, 301.

1804.

If he had brought an action at law, the measure of damages would have been the value of the land. The same ought therefore to be the measure of relief in equity.

Williams, contra. From the evidence, it is clear that Hull knew more of the land than Cunningham, who relied on Hull alone. Folliffe v. Hite(a) settled the principle that the original contract is to be the rule; and that, if the ven dee buys at so much, more or less, he takes the risk upon (b)MS. April, himself. The same rule prevailed in Pendleton v. Stuart.(b) Hull, therefore, was entitled to no compensation; but if to any, certainly not to more than the Chancellor had given If he considered Cunningham bound to make good this land, he ought to have given him notice of the vacant land before he had perfected the title himself; and he should not demand an allowance of the full value of ninety acres, with all the improvements, for what cost him not more than ten dollars.

Wickham, in reply. The distinction, between this case and folliffe v. Hite and Pendleton v. Stuart, is, that, in each of those cases, the purchaser got all the land within the specified limits: the deficiency was only in the number of acres. But here, Hull does not get the land within the limits by which he purchased: an important part of the land contracted for was not conveyed at all; being admitted not to be the property of the vendor.

As to Cunningham's not being acquainted with the lines; he certainly must have supposed the houses and other improvements to have been on the tract which he held, and

APRIL,

1810.

Hull

V.

ham's Execu

tor.

must have contemplated conveying them to the purchaser. Nelson v. Matthews,(a) and Quesnel v. Woodlief,(b) are conclusive authorities to shew that he was bound to make good the deficiency; since the boundaries expressed in his Cunningown title papers contained less than the specified quantity; and the words "more or less" do not cover so great a deficiency as that discovered in this case, but only a reasonable allowance for small errors in surveys, and variations in instruments." The measure of damages should be the value of the land at the time of the contract; according to the case of Nelson v. Matthews.

The smallness of the sum paid by Hull to save the land is a matter of no consequence. Suppose he had sued for the land, and been defeated, after spending one hundred pounds. He could not have recovered that sum, in addition to the value of the land. When, therefore, he has got the land for a smaller sum, Cunningham is not entitled to the benefit of his successful speculation.

April 28th, 1810. The Judges delivered their opinions.

(a) 2 H. &M. 164.

(b) lbid. 174.

Judge TUCKER (after stating the case) observed. This case in many of its circumstances so nearly resembles that of Pendleton v. Stuart, that the same reasons which governed in that case appear to apply to this, in part, In both, the purchaser had a much better opportunity of knowing the lands than the seller. Here the words of the bond do not amount to a warranty of the quantity; inasmuch as, in speaking thereof, there is this caution used; " SAID to contain 370 acres, BE IT more or less, to wit, “ALL that tract left him by his father John Cunningham, deceased." These circumstances indicate a contract in gross, and not by the specific number of acres. Neither the seller nor the buyer appears to have had access to any title-deeds. The old marked lines and corners noticed by the surveyor may have misled them both; or may, in fact, be the true lines. of the original survey, or patent, lost or mislaid among

APRIL, 1810.

Hull

V.

ham's Execu

tor.

the records of the General Court; and, if so, Cunningham was entitled, perhaps, to a patent for the surplus under the 46th section of the land-law. Be that as it may, here has Cunning been no actual eviction or expulsion of Hull from the lands not comprehended within the lines of Cunningham's deed. What then is the damage he has sustained? Exactly what the Chancellor has supposed. Had he brought a suit at law upon the bond, after he had taken up and patented the lands, and thereby secured them to himself, a Jury could not have given him more than the Chancellor's decree probably allows him. Having elected to come into a Court of Equity, he certainly cannot have vindictive damages. Compensation for his trouble, and actual expenses in securing his title, seems to me to be the just measure that he is entitled to. Perhaps the decree ought to have directed that Cunningham should execute a release of the lands which he has taken up and patented; inasmuch as, by possibility, the original patent may be found, and the lines thereof comprehend the whole tract, which Hull now holds. But I lay no stress upon the omission, as that possibility seems very remote. Upon the whole, I think the decree ought to be affirmed, and the cause remanded to be proceeded on to a final decree, with this further direction, that Hull should be decreed to deliver up the title bond given him by Cunningham, and enjoined from bringing suit thereon.

A purchaser Judge ROANE. The grounds of the decision of this

who buys a

tract of land Court in the case of Pendleton v. Stuart, are decisive of as containing the present case, and even go beyond it. That was a judg

so manyacres,

more or less, ment upon a written agreement, whereby Stuart agreed to

and agrees to

take uponhim- sell Pendleton “1,100 acres of land, more or less,” for 3001. self the risk,

as to lines, or A bill to enjoin the judgment was brought by the defendquantity, (ap

pearing, also ant, stating a pro rata sale, and also a deficiency of 160

better ac

the land than

quainted with acres appearing by an ex parte survey. There was no evithe vendor, a dence, however, supporting the allegation of the bill, as to gainst whom

there is no proof of fraud,) is not entitled to any relief in equtiy, for a loss relating to the risk undertaken.

APRIL, 1810.

Hull

V.

Cunningham's Executor.

301.

the pro rata sale, or varying the contract as appearing upon the face of the written agreement. The bill of injunction was dismissed by the Chancellor, and his decree of dismission affirmed, pro tanto, by this Court; though the same was corrected as to an omission in the decree, to provide for procuring a title to the land actually contained within the patent. One of the judges was of opinion, that, if the case had stood upon the written agreement merely, he should probably have been of opinion, on the authority of Jolliffe v. Hite,(a) to allow for the deficiency, as that deficiency (a) 1 Call, was greater than was reasonably imputable to the variation of instruments; and this the rather, because the agreement was not to sell "a tract of 1,100 acres," but to sell "1,100 acres of land," but that the bill having asserted a pro rata sale, and the answer which was substantially responsive thereto, having stated a verbal communication, in which the buyer agreed to take the risk upon himself, (there being no contrary proof or circumstances,) he was of opinion to affirm the decree upon the merits. Another judge lays great stress upon the contiguity of Pendleton's residence to the land, and his better knowledge of the quantity than Stuart's; circumstances which emphatically exist in the case before us.

These principles are decisive of the present case, unless we say that a party is not as competent to take upon him. self a risk, with respect to the manner in which the lines of a tract of land may run, as with respect to the actual number of acres contained in the tract. In the case before us it is fully proved, that that risk was taken upon himself by the appellant, and that there was no concealment, fraud, misrepresentation, or deception, on the part of the appellee. It is also evident, that the appellee was not only as ignorant of the actual lines of his tract, as the appellant, (and probably more so,) but sold the land by the gross, and was particularly careful not to lay himself responsible for any particular boundaries or number of acres. Unless, therefore, we are prepared to say, that it is immoral and inequitable for a man to pay, and another to receive, money

APRIL, 1810.

Hull

V.

ham's Execu

tor.

for more land than the one parts with and the other gets, under all possible circumstances whatsoever, (thus excluding the competency of a contracting party to take upon Canning himself any risk as to lines and quantity,) a position that was negatived in the said decision of Pendleton v. Stuart, and by the opinion of Judge Pendleton and the Court in the said case of folliffe v. Hite, the appellee was entitled to recover the stipulated price in the case before us. My opinion is, that the decree should be affirmed.

Judge FLEMING. This is a very plain case. cree is right, and I am not for disturbing it.

The de

Decree AFFIRMED by the unanimous opinion of the Court.*

Note by the Reporter. From this and other cases it appears that, where a purchaser is entitled to relief in equity on the ground of a deficiency, the measure of relief depends upon circumstances. If the deficiency be very considerable, and the parties can be put in statu quo, the contract should be rescinded, if the purchaser request it. If the parties cannot be put in statu quo, or the purchaser do not apply for a rescission of the contract, an allow ance should be made for the loss sustained; which allowance is, in general, the value of the land at the time of the contract, with lawfu! interest; (Nelson v. Matthews, 2 H. & M. 164.;) the purchase-money furnishing (as it seems) a proper standard of that value, where the actual value does not appear to be different; Lowther v. The Commonwealth, 1 H. & M. 201., and Judge Fleming's opinion, 2 H. & M. 179.; but it seems, the actual value, when appearing to be greater than the purchase-money, is to be allowed. Nelson v. Matthews, Tucker's and Roane's opinions, 2 H & M. 175. and 177. In this case, the actual loss sustained by Hull being only his expenses and trouble in getting the patent, and actual costs of suit, the court allowed him no more; the circumstances of his case making it an exception to the general rule.

It seems from Judge Tucker's opinion in Nelson v. Matthews, 2 H. & M. 177., that if the purchase-money has been paid, and the purchaser be evicted by a superior title, the measure of relief is the value at the time of the eviction, and not at the time of the contract. But Chancellor Taylor, in Lowther v. The Commonwealth, 1 H. & M. 202., decided otherwise. Ideo quære.

In case of a deficiency in land purchased, the sum to be allowed as the actual value, is, in general, to be estimated by the average value per acre of the whole purchase, and not by the relative or intrinsic value of the part lost; (which rule may, however, be varied by circumstances;) 2 H. & M. p. 178.; but, in case of an eviction of part, the proper estimate of damages is the actual value of the part lost; ibid. p 177.; in estimating which, I presume, its relative as well as intrinsic value, should be considered.