power of attorney to Joseph Craig describes the land as voWLES 2000 acres and the receipt of Michael Robinson for the & OTHERS last payment states it expressly to be in full for 2000

acres of land the property of Mary Frazer. There is CRAIG not an expression used which shews an intention on & OTHERS. cither side to make a risking bargain.

No evidence appears in the record to shew that mili tary surveys do usually contain surplus lands, and it is. supposed without such proof the Court cannot take judicial notice of such an allegation.

But if the Court should recognize it, must it not also be admitted that the surplus in this case (one third) is much more than is usual. The influence of error on the contracting parties being proved, it lies on the Defen dants to bring themselves within the exceptions stated in the case of Young v. Craig, by the exhibition of sa tisfactory evidence on those points, this has not been done.

If the Complainants are entitled to relief the next enquiry is, how it should be granted. The object of the parties being a sale and purchase of 2000 acres of land, the contract being made for that quantity only, Could Lewis Craig be compelled to receive and pay for more? Let it be supposed that he had made an improvident bargain, that the lands were not worth the price he gave or that since the sale they had greatly depreciated in value, Mary Frazer or her representatives could, on no principle of equity, take advantage of her own error to require payment for a greater quantity of lands than had come within the contract, and Lewis Craig might relieve himself by a conveyance of the surplus land.

As Lewis Craig was not exposed to the risk of depreciation in value, on principles of reciprocity Mary Frazer and her representatives should be placed in the same situation, and should be entitled to a specific re-conveyance, so far as it can be had without affecting the rights of others. It appears from the proceedings that Lewis Craig is still in possession and the owner of a part of this land, and that Joseph Craig who was concerned in the purchase, holds another part; so far as these extend, a specific re-conveyance may be decreed. As to the other VOL. VIIL

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Defendants who appear to have been purchasers, and & OTHERS who probably had not notice of the latent equitable claim ซ. of the Complainants so as to affect them, it is not contended that they can be compelled to convey. As to & OTHERS. the quantity deficient after the conveyance of the lands hel by Lewis and Joseph Craig, a decree for pecuniary compensation according to the present value, if the principles before stated are correct, is the appropriate relief. If the Court should be of opinion that the Complainants are entitled to their decree in respect to the surplus land, but should not consider the principles before stated correct, as to the manner in which it should be granted, no alternative seems to remain but that of adopting the original price (said to have been $5 per acre, and from calculation appearing to have been so,) as the measure of compensation. The purchasers having had the use and received the rents and profits of the land should, as an equivalent, be decreed to pay interest, and an account should be decreed to ascertain the value of the paper money on the 20th December, 1779, and the interest which has accrued.

The length of time which has been suffered to intervene may perhaps be considered as amounting to a waiver of the Complainants equitable right, and be made an objection to a decree for relief in any shape.

In reply to this the following facts, which appear on the record, are stated.

That the Defendants soon after their purchase removed to Kentucky, where they continued to reside, and that Mary Frazer and her representatives always resided in, or near Fredericksburgh, in Virginia.

BLEDSOE, for the Appellees.

Craig purchased Mary Frazer's interest, be it much or be it little. Her interest was all he purchased, and. all he could obtain. And as evidence of it she assigned the plat and certificate of survey, that the patent might issue to Craig for whatever the survey contained. There was no mistake here. If Craig has got more land from the commonwealth of Virginia than he ought to have had, is Mary Frazer or her representatives to step into the

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place of the commonwealth to correct the error or the VOWLES fraud? Or is she to step into Craig's place to defraud & OTHERS that commonwealth or to take advantage of the error of its officer because she once owned 2000 acres of land which she has parted with? Had she carved and granted a & OTHERS, definite interest out of her claim, retaining a part, the question might be differently settled. But in this case she would be worse than a volunteer who cannot be compensated in equity. She would be a volunteer mala fide.

A Complainant in equity must recover on the strength and soundness of his own title, It is not sufficient that the Defendant is in the wrong; the Plaintiff must have right.

If the claim of the Complainants to any part of the land itself were to be sustained, where would you begin on the survey to correct the error? On which end, side, or corner? The beginning and ending corners of a survey are arbitrarily designated by the surveyor when he makes out his plat and cetificate: seldom or never corresponding with the actual stages of process on the ground itself.

But as it was clearly the intention of the parties that the whole should be sold, and as the evidence of the whole was transferred, the utmost that the Complainants could, in any event conscientiously ask, would be, that the Defendants should refund a part of the purchase money, in proportion to the surplus, with interest, which must be reduced by the scale of depreciation.

TODD, J. after stating the case, delivered the opinion of the Court as follows:

In the written arguments submitted by the parties, it is admitted by the counsel for the Appellants that the evidence exhibited, does not support the allegation in the bill, that the assignment was made during the minority of Mary Frazer. This admission renders it unnecessary for the Court to go into a minute examination of the evidence; it will be sufficient to observe that the testimony is clear and satisfactory on this point; and, therefore, there is no pretence for setting aside the contract and decreeing a re-conveyance of the land, But it is contended that the Complainants are entitled

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VOWLES to relief in some shape for the surplus land contained OTHERS within the survey; either by a decree for the re-conveyance of the surplus land; by a pecuniary compensation CRAIG for it according to its present value; or by a pecuniary OTHERS. compensation according to the price at which the land was sold, on which interest should be allowed,

This argument assumes for its basis, that there existed a mistake as to the thing sold. If there was a mistake, how did it originate, and who is injured thereby? Was there a mistake? It may be enquired to what quantity of land was Mary Frazer entitled by virtue of the governor's warrant issued in pursuance of the royal proclamation? To two thousand acres. How much did she sell and receive payment for? Two thousand acres. It would appear from this that she had sold and received payment for as much land as she was entitled to. How comes it, that this surplus was included in the survey? From the fraud, design, ignorance or negligence of the surveyor. Who is defrauded or injured thereby? The commonwealth of Virginia, and not Mary Frazer, For what is it asked that compensation shall be made? For land which, by the fraud, design, ignorance or negligence of the surveyor, Mary Frazer might by possibility have been entitled to. Was the sale of this survey of a specific quantity, at a certain price per acre? or was it a sale of a specific tract? The bill alleges it was of the first description; the answers deny it, and say it was of the latter. There is no proof to support the allegation in the bill, unless from the survey, a power of attorney, and the receipt for the purchase money, it should be inferred, that as they relate to 2,000 acres of land, only that quantity was intended to be included in the sale. But this proof is conceived to furnish a very opposite conclusion, the description and designation of the tract of land sold, not as part of a tract, but an entire tract. The answers, being supported by the assignment, that it was a sale of the whole survey, and being also responsive to an allegation as well as to an interrogatory in the bill, must be taken as true and conclusive. When an assignment is made of a plat and certificate of survey, the purchaser takes it subject to the risk of its containing a less quantity than is expressed on its face, and should it contain more he is intitled to it. In the case of Young

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v. Craig, decided by the Court of Appeals of Kentucky, VOWLES (a copy of which has been furnished and relied on by & OTHERS each party) the Court say, "there was, particularly "in the sales made at an early period of this country, "great liberality of admeasurement frequently allowed & OTHERS. ❝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." Now it appears from a statement in the bill, as well as from the general history of the country, that it was usual and customary to make considerable allowance in military surveys; and it is not shown that the surplus in this is greater than in other surveys made about the same time. Again, in the same case, the Court proceed, "it would be obviously im"proper and unjust to lay down any general rule as to "the rate of surplus that would justify an inference of "mistake which would deserve correction; each case "must depend upon its own particular circumstances; "whether such an inference would be authorized in the present case, were the sale in question per acre and "not in gross, need not be determined since we are of "opinion it is of the latter description." If this reasoning be correct as to conveyances, it will apply with redoubled force to assignments of plats and certificates of survey, where the purchaser takes it subject to the risk of its containing less than it specifies.

Mary Frazer or the Complainants can be considered in no other view, than mere volunteers mala fide, and of course not entitled to the aid of a Court of Equity.

It seems, as a necessary consequence, if the Complainants are not entitled to the surplus land, they are not to compensation in either of the other modes contended for. Where there is no right there can be no claim to compensation sustained.

Decree affirmed with costs.