Benson v. Humphreys

Christian, J., delivered the opinion of the court. The sole question we have to determine in this case is, whether the sale of the tract of land in the bill and proceedings mentioned was a sale in gross or a sale per acre. The rules of law on this subject, laid down by this court, extracted from the numerous decided cases, may be briefly stated as follows: ■First. Every sale of real estate where the quantity is referred to in the contract, and where the language of the contract does not plainly indicate that the sale was intended to be a sale in gross, must be presumed to be a sale per acre. Second. The language “more or less,” used in contracts for sale of land, must be understood to apply only to small excesses or deficiencies, attributable to variations of instruments of surveyers, &c. AVhen these terms are used it rather repels the idea of a contract of hazard, and implies that there is no considerable difference in quantity. Third. AYhile contracts of hazard are not invalid, courts of equity do not regard them with favor. The presumption is against them, and while such presumption may be repelled, it can only be effectually done by clear and cogent proof. Fourth. The burthen of proof is always upon the party asserting a contract of hazard; for the presumption always being in favor of a sale per acre, a sale in gross, or contract of hazard, must be clearly established by the facts. [199] Fifth. Where the parties contract for the payment of a gross sum for a tract or parcel of land upon the estimate of a given quantity, the presumption is that the quantity influences the price to be paid, and that the agreement is not one of hazard. Sixth. Whether it be a contract in gross or for a specific quantity depends, of course, upon the intention of the contracting' parties, to be gathered from the terms of the contract and all the facts and circumstances connected with it. But in interpreting such contracts the court, not favoring contracts of hazard, will always construe the same to be contracts of sale per acre, wherever it does not dearly appear that the land was sold by the trad, and not by the acre. See Watson v. Hoy, 28 Gratt. 698, where all the cases decided by this court and many others are carefully collected in the elaborate opinion of Judge Burks. Applying these rules of law to the case before us, our conclusion is that the sale to Benson was a sale per acre, and not a sale in gross, and that the court below was plainly right, upon the evidence in the cause, in holding him responsible to pay to the appellees the sum of $35 per acre (the contract price) for the excess in quantity as shown by the survey. The decree of the circuit court of Fairfax county must therefore be affirmed. Decree aefirmed.