Fraud, it is said, is not to be presumed, but must be established by proof. Not, however, by mere circumstances of suspicion leading to certain results, but if not by positive and express proof, at least by circumstances affording strong presumptions. If one person makes a representation to another who is going to deal in a matter of interest, upon the faith of that representation, he shall make it good, if he knew it to be false. But to induce the interference of equity in such a case, it is not enough to establish the fact of misrepresentation; it must also be shown to be in a matter important to the interests of the other party, and that it actually did mislead him. For if such was not the character of the misrepresentation, no prejudicial consequences resulted from it. A misrepresentation may be as well by deed or acts as by words, by artifices to deceive, as well as by positive assertions. The affirmation of a falsehood, without any precise knowledge on the subject, is
In Dozier v. Duffee, 1 Ala. Rep. N. S. 320, a sale was made of several contiguous tracts of land, and adding in a bond for title, after the description of each tract, so many acres, “ more or less,” but without stating at the close of the description, the aggregate number of acres : Held, that there was no stipulation on the part of the vendor of the number of acres sold, and there being no evidence of fraud, there could be no reduction in the purchase money for a deficiency in quantity. See Minge v. Smith, 1 Ala. Rep. N. S. 415, and citations in opinion. So, where lands are sold by the quarter section, according to the survey under the authqrity of the federal government, at so much per acre, and bonds are given for the payment of the purchase money, the purchaser cannot claim a deduction for a deficiency in the quantity of the land — there being no f'raudulent concealment or misrepresentation on the part of the vendor. Perkins’s ex’rs et al. v. Winter’s adm’x, heirs, ef al. 7 Ala. Rep. 854; Capshaw et al. v. Fennell, 12 Ala. Rep. 780.
In a contract for the sale of land as containing a specific number of acres, the party prejudiced is entitled to compensation for a deficiency, or excess in quantity, beyond what may be reasonably imputed to small errors from variations of instruments or otherwise; and is not precluded in equity from inquiring into what was the real contract by the words “ more or less,” inserted in the deed of conveyance. But where the contract, as understood by the parties, is to sell a tract of land as it may contain “ more or less,” the purchaser takes it at the risk of gain or loss, by deficiency or excess in the quantity supposed; and neither can coerce the other to make compensation." Jolliffe v. Hite, 1 Call’s Rep. 301. In Anthony v. Oldacre, 4 Call’s Rep. 489, the vendor sold a tract of land “ whereon he formerly lived, supposed to contain 300 acres, more or less, as he-bought it,” but which he had previously surveyed aud found to be deficient in quantity : Held, that the purchaser was entitled to a deduction, although he had paid part of the purchase money after he had discovered the deficiency, and gave a new bond for the balance, declaring he would endeavor to obtain compensation
Where a vendor advertised a tract of land for sale, as containing about 800 acres, and the vendee purchased at £4 per acre, expecting it would contain full that quantity, (the vendor having asserted his belief thereof,) and thus induced the vendee to accept a deed for the same, as containing 800 acres, more or less. It appeared that the tract contained little more than 608 acres, so that both parties were mistaken in the quantity; and chancery afforded the relief to the ven-dee. Quesnell v. Woodlief, 6 Call’s Rep. 218. But although the purchaser of a tract of land promises to pay a certain sum by the acre, yet if he also agree to take it by the patent, or survey previously made, (in the absence of fraud on the part of the vendor,) he must be understood to risk the quantity; and therefore is not entitled to any compensation for deficiency. Fleet v. Hawkins, 6 Munf. Rep. 188. So, the conveyance of a particular tract of land without specifying quantity, does not bind the vendor to warrant a particular number of acres, if he has not falsely represented or concealed facts within his own knowledge; although both parties may have expected (judging from documents and other evidence) that the number of acres was greater than was indicated by a subsequent survey. Tucker v. Cocke, 2 Rand. Rep. 51. And where a sale is made by the tract, or the quantity is stated merely by way of description, chancery will not afford relief in the absence of fraud, upon the ground that there was a mistake in the number of acres. Harrison v. Talbot, 2 Dana’s Rep. 261; Foley v. McKeown, 4 Leigh’s Rep. 627. Whether a sale be by the acre, or in gross, is a question of intention to be collected from the circumstances of the transaction. Keytons v. Brawford, 5 Leigh’s Rep. 39.
In Stebbins v. Eddy, 4 Mason’s C. C. Rep. 414, a sale was made of a farm upon a contract at a definite sum per acre, to be ascertained by measurement: afterwards the parties agreed to waive a survey, and the purchaser took the farm at the gross sum of $2,500, supposing it to contain fifty acres, on the representation of the seller; and in the deed of conveyance, the land was said to be forty-seven and an half acres, “ more or lessHeld, that as the vendor was not
The answer is a direct denial of the allegations of the bill —declares that the defendant was ignorant of the extent of the deficiency in the lands he had sold the plaintiff, or of the several tracts which compose them — insists that he informed the plaintiff, the subdivisions did not contain the usual quantity — denies all misrepresentation or suppression of facts, or fraud in any other form. Under this state of the pleading', it is incumbent on the plaintiff to make out his case by proof.
We think the evidence altogether fails to show, that the defendant stipulated to sell six hundred, or any other specific-number of acres, or that he was advised how much the half quarter sections fell short of the statute quantity. True, the plaintiff stated to the defendant, before he began to examine his lands, that he would not give for them above $20 per acre, and would not look at -them unless the defendant would sell at that price. This, may serve to show that the plaintiff’s maximum limit, at the time he entered upon the
Previous to the sale to the plaintiff, the defendant said, his price for the land was $20 per acre, but also said, he must have twelve thousand dollars’for .the tract, although it might fall short in quantity. When the draftsman of the agreement inquired of the parties whether he should insert the number of acres, the defendant answered in the negative — saying he should state $12,000 as the aggregate amount of purchase money, to which the plaintiff made no objection. Upon the defendant informing the plaintiff that the lands fell short in quantity, he remarked that a few acres would make no difference, without making any inquiry in respect to the defi-ficiency.
It cannot be inferred that the defendant intended to sell his land at an agreed price per acre, but rather for an aggregate sum, without reference to quantity. This is indicated by his declarations previous to the sale, and what he said in answer to the inquiry of the draftsman of the contract. Nor is this conclusion weakened by what the defendant said subsequent to the sale, as to the price at which he had sold. True, one witness states, that the defendant informed him he was to receive $20 per acre, while others testify, he not only sold for $20, by the acre, but added, he informed the plaintiff the land was deficient in quanty, who replied, a few acres would make.no difference, he would take it at $12,000, and for this sum the sale was made. This testimony so far from overbalancing the answer, tends rather to sustain it, except as to the' evidence of the single witness, which cannot outweigh the defendant’s denial.
Conceding that it was the duty of the defendant to have given to the plaintiff all the information he possessed in re
In respect to the generality of the knowledge of the deficiency in the neighborhood, the proof of it was objected to by the defendant, and we incline to think was incompetent, as a predicate from which to infer that the defendant had such information, and could, had he thought proper, have informed the plaintiff how much each half quarter section was short of the usual quantity. But if admissible, it must be altogether too weak to override the answer, which contains an explicit denial upon this point. Besides, these witnesses who testify to common report, are not agreed among themselves as to the precise quantity each half quarter was generally understood to contain, and thus it appears, that although the fact of a deficiency was known, the extent of it was unsettled.
There is then an absence of proof to show either a sug-gestio falsi or suppressio veri, on the part of the defendant, one or the other of which is essential to constitute fraud in the sale. If the plaintiff was not aware how much the land fell short of containing the quantity indicated by the subdivisions, and supposed it would reduce the aggregate below what he was willing to take at $ 12,000, he should have inquired into the deficiency. Such an inquiry was suggested, if not invited by the remark which the defendant made to the plaintiff, and it may be questioned, whether the failure to prosecute it, does not, in the absence of fraud, preclude all relief in equity.
The impression of the witness, who was present at the sale, and who wrote the contract, that both the vendor and vendee supposed the lands contained six hundred acres, is