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VOWLES and legal representatives of Mary Vowles formerly Mary & OTHERS Frazer.
The bill alleges that in the year 1774 a survey was &OTHERS. made for Mary Frazer as heir at law, and only daugh
ter of George Frazer, dec'd. by virtue of the governors ginia for 2000 warrant and agreeable to the royal proclamation of 1763, acres, sell and transfer, for a
for 2000 acres of land in Fincastle county, on Elkhorn valuable consi- creek, the waters of Ohio river. That according to deration, huis
usual and customary allowance, made in this, as well as right to the survey, und as, other military surveys at that time, a considerable quansign the plat tiy of land over and above 2000 acres, is. contained to the purcha- within the actual boundaries. That in the year 1778 ser, whereup. whilst the said Mary was a minor, Michael Robinson, as patent for the guardian of the said Mary, and who had intermarried fand in his own with her mother, made a contract with the Defendants name ; and if, L wis, Joseph and Benjamin Craig's, for the sale of the vey, it appear said 2000 acres of land surveyed as aforesaid for the that the grant said Mary at the price of 30s. per acre, amounting to seres, the ven. 3000l. which was paid in the depreciated paper currency dor cannot in of Virginia and was of little or no value. That the said equity support Mary was induced to aflix her signature to an 'assignsurplus, a ment of the said plat and certificate of survey, which gainst the ven- was post-lated so as to bear the appearance of its being
executed when she was of full age ; in consequence of which Lewis Craig obtained a patent for the said land in bis own name and has since conveyed a part thereof to the said Joseph and Benjamin, and under whom the other Defendants derive their titles. The prayer of the bill is to vacate the contract and to decree a re-convey. ance of the land, and for general relief,
The answers of the Defendants, Lewis and Joseph Craig's, admit the making of the survey, and that it con, tains a considerable quantity of land within the bounda. pics more than 2000 acres.
They admit the contract with Michael Robinson for the purchase of the said survey; but positively deny that it was made in the year 1778, and aver that it was made in 1779. They deny that the contract was for 2000 acres of land at 30s. per acre, but was for the whole survey at the price of 3000l. They also positively deny tilat the assignment on the plat and certificate of
survey was post-dated or that any fraud, or misrepresen- VOWLES tation was practiced or used relative to the transaction & OTHERS
The answers of the other Defendants are deemed im CRAIG material to the investigation of the questions arising in &OTHERS. this case.
The cause was heard in the Circuit Court upon the bill, answers, depositions and other proofs. The Court decreed the bill to be dismissed with costs; from which decree an appeal was taken to this Court.
TAYLOR, for the Appellants.
On examination of the evidence exhibited, we are satisfied, that the allegation, that the assignment was made during the minority of Mary Frazer is not sufficiently supported to have authorized the Circuit Court to have decreed a re-conveyance. But we suppose the Complianants were entitled to relief in some shape for the surplus land contained within the survey; either by a decree for the re-conveyance of the surplus, by a pecuniary compensation for it according to its present value or by a pecuniary compensation according to the price at which the land was sold, on which interest should be allowed.
No evidence is introduced of the terms of the sale, whether by the acre or in gross, except the survey, assignment, power of attorney and receipt before mentioned, from these it plainly appears that the parties contracted on a supposition that the quantity of land sold and purchased was 2000 acres.
The surplus of 700 acres (nearly one third of the whole quantity supposed to be sold) cannot be considered as a small one, such as might arise from inaccuracy of instruments, &c. and therefore within the contemplation of the parties.
The remote residence of the vendor, who had but lately attained full age when she sold, precludes the idea of her having any information of the quantity of land to which she was entitled, other than that which was derived from the survey. On her part, therefore, and probahly on the part of the purchaser also, the contract was
VOWLES made under an evident mistake respecting the subject of & OTHERS sale. There is nothing discoverable in the contract or
exhibits from which it can be collected that the sale was
made without responsibility for the quantity, the words, &OTHERS. more or less, almost universally used to designate such
an intent, are no where to be found.
The case presented is that of a contract made under the influence of mistake, in both parties, as to a material and importent part, without fraud or concealment on either side.
It is supposed that no différence exists between contracts for the sale of lands, and those of any other description. The same principles apply to all. This doc. trine is recognized in the opinion expressed by the Court of appeals in Kentucky, in the case of Young against Craig. In delivering that opinion the Court expressed itself as follows: « The question in this case is whether Craig who had sold to Young a tract of land containing in its boundaries a surplus, has a right to recover such surplus, or incase it cannot be had, a compensation therefor in money. There is no novelty or peculiarity in the principles upon which questions of this sort depend. In contracts of this kind the same good faith is required, and the same responsibility attaches to its violation, which law and reason prescribes in every description of contracts. If, through fraud or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with, or the purchaser to receive, the injured party would be entitled to relief in like manner as he would be for an injury produced by a similar cause in a contract of any other species."*
The same opinion also establishes the principle that in sales in gross as well as in sales by the acre, if the parties have contracted under manifest error as to quantity, the party injured is entitled to relief, unless indeed, the surplus or deiicit was small, not more than usual in such cases, and of course supposed to be within the contemplation of the parties. In that case, it is true the Court refused to decree compensation for the surplus land sold, because it appeared plainly to have been the intention of the parties to risk the gain or loss, and because the sur
plus was not more than usual in such 'sales. * In the VOWLES case of Young v. Craig, the Court appears to have & OTHERS adopted the principle laid down by Pothier in his treatise on obligations, ch. 1, art. 3, s. 1, title Error, and also CRAIG by the writers on natural law, “that an error about a &OTHERS, thing, or about its quality, upon prospect of which a man
* The opinion of the Court of appeals in Kentucky in the case of YOUNG T. CRAIG, was as follows:
The question in this case is whether Craig who had sold to Young a tract of land containing in its boundaries a surplus, has a right to recover such surplus, or in case it cannot be had, a compensation therefor in money.
There is no novelty or peculiarity in the principles upon which questions of this sort depend. In contracts of this kind the same good faith is required. And the same responsibility attaches to its violation, which law and reason Prescribe in every description of contract.
If through fraud, or gross and palpable mistake, more or less land should be conveyed tuan was in the contemplation of the seller to part with o: the purchaser to receive, the injured party would be eatitled to relief'in like neanner as he would be for an injury produced by a similar cause in a contract of any other species.
In this case however there is no evidence of fraud; and the only ground, from which an interence can be deduced that there was such a mistike as would justify the interference of the Court for the purpose of correction, is the surplus contained in the boundaries described by the deed. Whether this ground be sufficient to justity such an inference depends upon the nature and terms of the contract.
Contracts for the sale of land may be considered of two descriptions. 1st. Where the sale is of a specific quantity, which is usually denominated a sale by the acre, and Adly, where the sale is of a specific tract by name or description, each party risking the quantity; and this latter, for sake of brevity, is sometimes called a sale in gi'ass.
It is evident that in a sale per acre, much less variation from the quantia ty intended to be conveyed would afford evidence of a mistake which would justify the interposition of a Court to critect it, than would be sufficient for that purpose in a sale of the other description. But even in a sale per acre, as from the roughness and uneveness of the ground from the variation of instryments and from the different results tha: will necessarily be produced by different surveyors operating with the same instruments, it is impracticable to ascertain the quantity with perfect precision, a small deficit or surplus, however exactly the parties may have intended to be confined to a specific quantity, would not justify an application to a Court of justice for relief. In many cases, however, of sales of this sort, the parties did not intend to be very scrupulously exact with respect to the quantity. There was particularly in ihe sales nade at an early period of this country great liberality of admeasurement trequently allowed by the seller and expected by the purchaser. Where this was the case to authorize a conclusion from the surplus contained in the boundaries of a tract, that there was a mistake of quantity, the surplus ought to be greater than was usual in conveyances made about the same period and with the same intention of allowing liberal admeasurement. But is in some sales of an early period, and in perhaps a great majority of those of a more recent date, such a liberality of all measurement was not intended by the parties it would be obviously improper and unjust to lay down any general rule as to the rate of surpluses that would justify an inference of a mistake which would deserve a correction. Each case must depend much upon its own particular circumstances. Whether such an inte rence would be authorized in the present case were the sale in question per acre, and not in gross, need not be determinod since we are of opinion it is of the latter description.
VOWLES is induced to come to any agreement, renders the agree& OTHERS ment or bargain void, for in such case a man is not supa
posed to have agreed absolutely but upon supposal of the
presence of such a thing or quality, on which as on OTHERS, a necessary condition, his consent was founded, and
therefore, the thing or quality not appearing, the consent is understood to be null and ineffectual.” Puffendorf's Law of Nature and Nations, b. 1, c. 3, s. 12.
On these principles as applied to this case the Complainants would be entitled to compensation, or the contract would be considered as void, unless it was in proof that the surplus was not unusually great, and was not more than may reasonably be supposed to have been in contemplation of the parties. As the consideration of quantity does not appear to have been the operating motive which led to the contract though it certainly influenced the price, according to the principles established by writers on natural law, it would appear that the er. ror of the parties rather afforded a ground for a decree of compensation than for annulling the contract.
From an examination of the documents exhibited it will clearly appear that the parties contracted under an opinion that the survey contained only two thousand acres, the survey itself specifies that quantity. The
The deed of converance must be taken as conclusive evidence of the terms of sale unless it had been shown that language not comporting with the true intention of the parties had been inserted ihrough fraud or mistake, of which there is not the slightest indication in this case.
The deed describes the land by its boundaries and situation, and as “contain"ing by survey four hundred and twenty-five acres, be the same more or less." The plain and most obvious meaning of the expressions“ be the same more or less" is that the parties were to run the risk of gain or loss as there might happen to be an excess or deficiency in the estimated quantity., This it is believed is the sense in which such an expression is uniformly understood by bosh the learned and the unlearned. This idea is not repelled by the expression of the quantity of acres; on the contrary it rather derives strength from the manner in which the quantity is mentioned, for it plainly indicates that the expression of quantity was used as matter of description only and that it was tire intention of the parties not to be confined to a precise and specific quantity.
We do not mean to be understood that in a sale of this kind the surplus or deficit might not be so great as to authorize an intere ce that it has been produced by fraud or mistakt ; but in this case where he estimated quantity was 425 acres and the largest quantity which any subsequent survey has made it is 481 the surplus does not appear so great as not to be within the reasonable limits of a risking bargain of this kind. See in sapport of this doctrine..... Sugdeu 225, 6-1 Call
. 301. We are therefore ot' opirion that the decree oi the Circuit Court in favor of Craig was erroneous and must be reversed with costs.