88 Va. 141 | Va. | 1891
(after stating the case, as aforesaid), delivered the opinion of the court.
The question we have to decide is, Was this a sale in gross of a tract of land by the boundaries, at a hazard as to quantity, or was it, as the circuit court decided, a contract for a sale by the acre ? It is evident that there was no agreement to buy by the acre, and the purchase-price cannot be evenly divided by the number of acres.
It is proved that there is a deficiency. If it is a sale by the acre, then the purchaser is clearly entitled to an abatement.
But when the lands in a conveyance arc mentioned to contain so many acres by estimation, or the words “more or less” added, if there be a small portion more than the quantity the vendor cannot recover it; and if there be a small quantity less the purchaser cannot obtain any compensation in respect to the deficiency; and even a large excess or deficiency has not been considered a ground for relieving a vendor or purchaser. And although the contract states the property to contain a given quantity, yet the purchaser must be content with a much less quantity if it be stipulated that the quantity shall be taken as stated, whether more or less.
When the. real contract is to sell a tract of land, as it may contain more or less, fully understood to be so, the purchaser takes the tract at the risk of gain or loss by deficiency or excess in the number of acres contemplated, and neither can resort to the other for compensation on the grounds of excess or deficiency. Jolliffe v. Hite, 1 Call, 284, and in the case of Hull v. Cunningham, 1 Munford, 335.
It was said there : “ 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.”
In Keytons v. Brawford, 5 Leigh, 48, it was said of such a controversy: “ This depends upon the question whether the sale was in gross or by the acre, for if it was a contract of
“ Questions of this character have frequently been before this court, and nothing is better established than the law of the subject, when the real intention of the parties in the contract is once clearly established. But this intention it is sometimes difficult to discover, from the carelessness of the parties, from the use o'f equivocal expressions, and from the glosses which are given to the transaction by the testimony of witnesses. Contracts of hazard, such as these we are now considering, never have been discountenanced by. our law. When they are clearly established they are valid. It is not readily to be presumed that parties designed to enter into such a contract, unless it is clearly sustained by the facts.”
In the case of Russell v. Keeran, 8 Leigh, 18, it is declared that every sale of land in gross or by the tract is, ex vi termini, a sale of hazard as to quantity, the vendor being debarred from claiming any addition to the purchase-money in case the real quantity of land shall be found to exceed the estimated quantity, and the vendee being debarred from claiming any diminution of the purchase-money in ease the real quantity shall fall short of the estimated quantity. In that case the deficiency was more than one-fourth of the entire tract, the stated quantity being 405J, be the same more or Jess, the actual quantity 289J acres.
The question depends upon the intention of the parties, as expressed in the contract by the words “ more or less,” and the evidence of witnesses as to the true intention of the parties, the latter being held admissible because of the ambiguity in these words, (Russell v. Keeran, supra,) and not upon the quantity of deficiency.
In Caldwell v. Craig there was a deficiency of 200 acres' — one-fifth.
In Tucker v. Coke, 2 Ran. 51, there was a deficiency of 2,000 acres in a large tract.
the land was not sold by the acre, but that it was sold by the tract, for $4,750, which is far from being an equi-multiple of the supposed number of acres. The boundaries of the land were well defined, and are minutely set out in the deed of trust. There appears to have been no doubt or difficulty as to any of the corners or lines. The purchaser, no doubt, viewed every part of it. Being a small tract, he could probably stand in the centre of it and see all of it in one view.”
These remarks are appropriate to this case. It is clearly in this case not a sale by the acre. .The purchase-price and the number of acres clearly show this. The contract excludes the idea by the words “ more or less.” The vendor testified that it was expressly agreed to be a sale by the tract, quantity not to be considered as forming any part of the sale. The vendee says there was nothing said about this; but he impliedly confesses the contrary by the circumstance that, instead of standing by the contract of sale mutually agreed to at the time of the sale, he prepares a receipt for some of the money, and inserts in that, not “fifty-six, more or less,” but fifty-six acres absolutely, and when, by casual meeting, as appears, the same was carelessly signed by the vendor, holding this as a sort of sealed-up mj'stery, approaching the vendor in the field at his work, and threatening him with a receipt which he had, and which he did not know the contents of, and crowning the whole with the boast: “ And I am going to use it against you, too.” And when, upon reading the receipt, the vendor said he certainly had not known what it contained, the vendee replied : “ I knew you did not,” as if he would’ now make no more defence against the claim.
But obviously the contract between the parties cannot be set aside or construed by any such transaction as this. The question is what the parties intended at the time, as shown by the
It is evident that he is not damaged in any degree, as he can rid himself of the purchase, and receive back the money, and this without any outlay by him.
The circuit court having decided otherwise, I am of opinion. to reverse and annul the decree complained of here.
Decree reversed.