the circumstances that had been proved in this case might be described by a word that was used by one of the witnesses; they were mere bagatelles. If these small circumstances were to be the foundation of an action, every house that was sold would produce an action. If a broken pane of glass that might be found in a garret window, perhaps, had not been described by the seller, it would be ground of an action. If he was to consider himself as a witness in the cause, he could say he had met with something of this kind, and he never thought himself imposed upon, because now and then some rotten boards and rotten joists might be found about a house. Besides, there was no imposition, no mala fides in this case. Although the purchaser might, with proper precaution, (*)have discovered the defect; yet if, during the treaty, the vendor industriously conceal the fact, equity will not assist him. Thus, upon a suit for a specific performance, the defence was, that the estate was represented to the defendant as clearing a net value of 90l. per annum, and no notice was taken to him of the necessary repair of a wall to protect the estate from the river Thames, which would be an out-going of 50l. per annum. And it appearing, upon evidence, that there had been an industrious concealment of the circumstances of the wall during the treaty, the Lord Chancellor dismissed the bill, but without costs(n). And here a case may be mentioned, where an estate appeared to be subject to a right of entry to dig for mines; the purchaser did not object to the title on this ground, but insisted upon a specific performance with a compensation, which was accordingly decreed (o). (n) Shirley v. Stratton, 1 Bro. C. C. 140. SECTION III. Of Defects in the Quantity of the Estate. If a purchaser of an estate thinks he has purchased bona fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, that neither party may be damaged; because it is impossible to say, one shall be forced to give that price for part only which he intended to give for the whole; or that the other shall be obliged to sell the whole for what he intended to be the price of part only (p). Upon the other hand, if both (*) understood the whole was to be conveyed, it must be conveyed. But again, if neither understood so, if the buyer did not imagine he was buying any more than the seller imagined he was selling the part in question, then a pretence to have the whole conveyed is as contrary to good faith on his side, as a refusal to sell would be in the other case(q)(197). If an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to a compensation, although the estate was estimated at that number in an old survey(r)(198). (p) See 13 Ves. jun. 427; and see Higginson v. Clowes, 15 Ves. jun. 516, stated, as to this point, supra, p. 38. (q) Per Lord Thurlow. See 1 Ves. jun. 211; and see 6 Ves. jun. 339. (r) Sir Cloudesley Shovel v. Bogan, 2 Eq. Ca. Abr. 688, pl. 1. (197) See Nelson v. Matthews, 2 Hen. & Munf. 164. (198) See Quesnel v. Woodlief, 2 Hen. & Munf. 173. in note. Jollife v. Hite, 1 Call, 301. Nelson v. Carrington, 4 Munf. 332. v. Campbell, Gilmer, 159. Carler The rule is the same, though the land is neither bought nor sold professedly by the acre; the presumption is, that in fixing the price, regard was had on both sides to the quantity which both suppose the estate to consist of. The demand of the vendor, and the offer of the purchaser, are supposed to be influenced in an equal degree by the quantity, which both believe to be the subject of their bargain. The general rule therefore is, that where a misrepresentation is made as to the quantity, though innocently, the right of the purchaser is to have what the vendor can give, with an abatement out of the purchasemoney, for so much as the quantity falls short of the representation(s) (199). But where the lands in a conveyance are mentioned to contain so many acres by estimation, or the words "more or less” are 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 of the deficiency (t). Indeed, (*)a case is said to have been decided, where a man conveyed his land by the quantity of one hundred acres, were it more or less, and it was not above sixty acres ; but the purchaser had no relief, because it was his own laches(u)(200). (s) Hill v. Buckley, 17 Ves. 394, per Sir William Grant. (1) Twyford v. Warcup, Finch, 310. See Marquis of Townshend v. Stangroom, 6 Ves. jun. 328; Rushworth's case, Clay. 46; Neale v. Parkin, 1 Esp. Ca. 229. (u) Anon. 2 Freem. 106. (199) See Waters v. Travis, 9 Johns. Rep. 465. on appeal. And where there is a great deficiency in the quantity of land, the purchaser is entitled to have the contract rescinded in toto. Glover v. Smith, 1 Des. 433. See also, Peay v. Briggs, 2 Rep. Con. Ct. 100. (200) In Quesnel v. Woodlief, 2 Hen. & Munf. 173, 174; in note, the court say, that the words "more or less," inserted in a deed, "should be restricted to a reasonable or usual allowance for small errors in sur That however was the case of an actual conveyance. Where the contract rests in fieri, the general opinion has veys, and for variations in instruments." 102. See Smith v. Evans, 6 Binn. Jollife v. Hite, 1 Call, 301. Grantland v. Wight, 2 Munf. 179. Snow v. Chapman, 1 Root, 528. Howes v. Barker, 3 Johns. Rep. 506. 5 Mass. Rep. 355. Howe v. Bass, 2 Mass. Rep. 380. Jackson v. Barringer, 15 Johns. Rep. 471. Jackson v. Defendorf, 1 Caines' Rep. 493. Thomas v. Perry, 1 Peters' Rep. 49, 58. Dayne v. King, 1 Yeates, 322. Boar v. M'Cormick, 1 Serg. & Rawle, 166. Fleet v. Hawkins, 6 Munf. 188. Pringle v. Witten's Exrs. 1 Bay, 259. v. Handkinson, 1 Bay, 278. Wainwright v. Read, 1 Des. 573. Dev. v. Carter, 4 Hen. & Munf. 184. Hull v. Cunningham's Exr. 1 Munf. 330, 335, 336. 66 Gray Jones' "In a conveyance of land by deed, in which the land is certainly bounded, it is very immaterial, whether any or what quantity is expressed for the description by the boundaries is conclusive. And when the quantity is mentioned in addition to a description of the boundaries, without any express cevenant that the land contains that quantity, the whole must be considered as mere description. (Per Parsons, C. J. 5 Mass. 155; S. P. in Large v. Penn, 6 S. & R. 488.) In the latter case cited in which the plaintiff sued the defendant for breach of covenant, it appeared that the deed described the land as containing two acres and three quarters of an acre, being the lot mentioned in a plan or map of land (number 18, R. M. Penn,) and which, upon a partition and division of the said W. M., was, inter alia, allotted and assigned unto the said R. and M. Penn, her heirs and assigns forever." And then followed a special covenant of warranty in the usual form. The question being whether there was a covenant that the quantity of land should amount to two acres and three quarters? The court held, that there was not. It is the boundaries to which the grantee must look ; he has a right to all the land within them: and the quantity is introduced, not by way of covenant, but of description. So, in Davis et al. v. Rainsford, 17 Mass. R. 207, Wilde, J. in delivering the opinion of the court said-" no rule of law can be more firmly established, than that whenever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern; although neither courses, nor distances, nor the computed contents, correspond with such boundaries. But this fundamental rule in the construction of deeds is not inflexible, but like other rules of law, it must sometimes yield to exceptions. The reason why monuments are to govern the courses and distances in a deed, is that the been that the purchaser, if the quantity be considerably less than it was stated, will be entitled to an abatement, former are less liable to mistakes. When the reason of the rule ceases, the rule is not to be applied. When lines are laid down on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on such plan, are to be as much regarded as the true description of the land, as they would be, if expressly recited in the deed. This is a familiar rule of construction in all those cases, wherein no other description is given in the title deeds, than the number of the lot on a surveyor's plan of a township or other large tract of land. The land in question was conveyed to the plaintiffs at the time they were about erecting a store; and it was stipulated in the deed, that the southwardly wall of the store should be placed exactly on the line last mentioned in the description of the land conveyed. The store was accordingly erected, and the southwardly wall was placed as it now stands, in conformity to the adineasurement, and to the plan, no objection being then made to its position by the grantor. This wall, when built, was a monument; and it was referred to in the deed, although it was not at that time erected. This part of the case is similar to the case of Makepeace v. Bancroft, 12 Mass. 469, excepting the wall in that case did not exactly coincide with the line, as described in the deed; and in the case before us it does. The case last cited was thus-“ a certain piece of land in C. measuring on W. street 22 feet, and keeping the same width 70 feet back to another way, with all the privileges and appurtenances to the said lot belonging, meaning to convey thereby the same lot which was conveyed to the said grantor by M'Neil, by his deed dated, &c., including one half of the brick wall mentioned in the deed last aforesaid." The plaintiff sued for breach of covenant in respect to one half the brick wall, with the land under the same; there being no question as to the residue. It appeared at the trial, which was had before Jackson, J., that one Porter was seized of this lot, and also of another lot adjoining. He conveyed this to R., and the other to one W., who conveyed to S. Then R. and S. agreed to exchange lots and by direction of the latter the former conveyed to Neil. At the time of the conveyance by P., he owned a third lot on which was a brick house; and the deed to W. included one half of the wall of that house. R. intending to build on the lot he received from S. in exchange says in the deed to Neil "I do also convey to said Neil the one half of a brick wall that I hereby engage to erect on the adjoining lot now owned by S., which the said S. is this day to convey to me." S. conveyed to R. one half the wall of the house aforesaid; and R. undertaking to convey to the said appointee of S. one half of the wall which he was to build. |