83 Va. 380 | Va. | 1887
delivered the opinion of the court.
The only question in this case is whether William N. Camp, the vendee, is entitled to an abatement of the purchase price of a farm bought by him from Sarah E. Nor-fleet, administratrix c. t. a., &c., of Elisha Norfleet, for a deficiency of two hundred and ten acres of land out of an aggregate of 892 acres, which the farm sold was supposed to contain. If this was a sale in gross, why, of course, the vendee, Camp, must bear the consequences of his engagement, notwithstanding the deficiency is certainly very large, amounting to almost one-fourth of the whole number of acres which the farm was believed by both vendor and vendee to contain. For compensation has been often refused in cases where the deficiency was greater than it is in this case. In Tucker v. Cocke, 2 Rand. 51, the lands fell short more than two thousand acres of the quantity they were supposed to contain. In Russell v. Keeran, 8 Leigh, 9, the deficiency amounted to one hundred acres in a tract supposed to contain four hundred and five. And numerous- other cases might be cited where the deficiency was nearly or quite as great, and yet the purchaser has been required to bear the loss, because they were contracts of hazard, in which the purchaser assumed the risk of any deficiency which might be found to exist. For, whilst such contracts are not favored, yet, when clearly established, they are always enforced. Caldwell v. Craig, 21 Gratt. 139; Watson v. Hoy, 28 Gratt. 698. But, as was said by Judge Tucker in Keytons v. Branfords, 5 Leigh, 39, “ though such a contract of hazard is valid, it is not to be readily presumed unless it is clearly sustained by the facts,” * * * and the courts “ will take it that a contract is by the acre whenever it does not clearly appear that the land was sold by the tract, and not by the acre.” And in Watson v. Hoy, supra, this court, citing Blossing’s
The decree appealed from must be reversed, the injunction reinstated, and the cause must be remanded for further proceedings, in accordance with the views herein ■expressed.
Decree reversed.