Dulin v. Sharp

Mr. Justice Van Orsdel delivered the opinion of the Court: We are satisfied with the findings of fact by the court below, both that a shortage exists and that plaintiff was led to purchase the farm in the belief and upon the representation that it contained 500 acres. In .fact, it is conceded in the answer that, it was generally understood in the community that the farm contained 500 acres. The contract of sale called for 509 acres, more or less, but the deed supplemented that contract, and must be treated as the final agreement between the parties. With this defendant cannot complain, since the shortage is less according to the deed than the contract. .Besides, the number of acres mentioned in the deed conforms to the number of acres the farm was reputed to contain. The deed must be interpreted according to the law of Virginia. In Benson v. Humphreys, 75 Va. 198, the rules of construction applicable to conveyances of this sort are 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 surveyors, etc. When these terms are used it rather repels the idea [554] of a contract of hazard, and implies that there is qo considerable difference in quantity. Third. While contracts of hazard are not invadid, courts of equity do not regard them with favor. The presumption is against them, and while such presumption may be repelléd, 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. 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 clearly appear that the land was sold by the tract, and not by the acre.” This rule of interpretation is also sustained in Watson v. Hoy, 28 Gratt. 698; Camp v. Norfleet, 83 Va. 380, 5 S. E. 374. While it is true that plaintiff visited the land before making the purchase, and the lines were pointed out to him in a general way, the evidence is convincing that defendant represented to plaintiff that the farm contained 500 acres, and on this basis the .price was fixed at $30 per acre, or $15,000 for the 500 acres. If there was doubt on this point, the doubt would be resolved in favor of a sale by the acre. Pack v. Whitaker, 110 Va. 122, 65 S. E. 496. But independent of the decisions of the Virginia courts, the great weight of authority is to the effect that where the vendor represents to the vendee that a tract contains a given number of acres, the vendee may rely upon the representation, and where the sale is of a given number of acres, more or less, and the shortage is so great as to indicate a mutual mistake, equity will extend relief. The rule is the same where the vendee is taken upon the premises and [555] shown the boundaries. Quarg v. Scher, 136 Cal. 406, 69 Pac. 96; Lovejoy v. Isbell, 73 Conn. 368, 47 Atl. 682; Esles v. Odom, 91 Ga. 600, 18 S. E. 355; Antle v. Sexton, 137 Ill. 410, 27 N. E. 691; Ledbeter v. Davis, 121 Ind. 119, 22 N. E. 744; Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Boggs v. Bush, 137 Ky. 95, 122 S. W. 220; Starkweather v. Benjamin, 32 Mich. 305; Judd v. Walker, 114 Mo. App. 128, 89 S. W. 558; Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371; Cawston v. Sturgis, 29 Or. 331, 43 Pac. 656; Rich v. Scales, 116 Tenn. 57, 91 S. W. 50. The decree is affirmed with costs. Affirmed.