Hall v. Mayhew

Le Grand, C. J., delivered the opinion- of this court: The bill, in this case, was filed for the two-fold purpose of having an abatement from the amount of the purchase money, agreed to be paid by the appellants for a tract of land, and the enjoining of the further prosecution of a suit, at law, brought against them by the appellee for a part of said purchase money due and payable, agreeably to the terms of the [567] purchase. The case was decided on a motion to dissolve an •injunction which had been previously granted on the filing of the bill, and on affidavits taken under the Act of 1835, chapter 380. The bill, in substance, charges, that the appellants became the purchasers of the land because of the statements contained in an advertisement, published in a newspaper called the “Baltimore Sun,” and those made to them by the appellee, the ground of complaint being, that the land was believed by the appellants to contain 482 acres, when, by a survey by themselves caused to be made, it was found to contain but 3TS. All the purchase money, with the exception of $566.16, had been paid before the filing of the bill. To recover this residue, the action at law had been instituted by the appellee. The history of the case, as disclosed by the record, is, that the property was that of one Jones, who being indebted to Mayhew, the appellee, and being unable to discharge his indebtedness, and desirous of obtaining a loan from the latter, agreed with him to convey the property to him and to take a lease for a term of years at a certain rent. This transaction was viewed, by the parties to it, as one in the nature of a mortgage to secure the payment of the money due from Jones to the appellee. The sale was at the instance of Jones, but with the approbation of the appellee. Before the purchase Was consummated these facts were made known to the appellant. The appellee, in the agreement of sale executed by him, does not warrant on guaranty any number of acres. He refers to the source of bis own title, to wit$ the deed from Jones, and his lease to Jones. The deed from Jones to the appellee describes the land as: “All that tract * ® ® called Ninevabj as described in the patent thereof, * ® * (excepting there¿ from all those parts of said tract which were sold and conveyed by the said Charles Warfield, in his lifetime, to any person whatever,) the part of said tract hereby conveyed being estimated to contain 482 acres, 32 perches, be the same more or less.” The lease from the appellees describes the [568] land as “being estimated to contain 482 acres and 32 perches, be the sarnie more or less.” (Decided May 16th, 1860.) There is no fraud, in fact, charged in the bill. Reliance being placed entirely upon the facts already stated, and the averment that the appellee liad informed the appellants, that before he would have anything to do with the property, he had caused the records to be searched and found them to be satisfactory. But the bill admits, that before the payment of any part of the purchase money, or the giving of the notes on which the suit at law has been brought, the lease from the appellee to Jones had been shown to them. The only question then before this court, on this appeal, is, are the appellants entitled to the relief asked upon the facts stated by themselves? We concur in opinion with the Circuit court, that they are not. The property was not sold by the acre, but in gross. In Maryland the law is well settled, that where quantity does not enter into the essence of the contract, in the absence of fraud or misrepresentation, the purchaser is not entitled to an abatement. Here the complainants were referred to the title papers, which contained no warranty of any precise number of acres, but which described the quantity by estimation, and by the words, “more or less.” In the case of Jones vs. Plater, 2 Gill, 125, and in the case of Stull vs. Hurt & others, 9 Gill, 446, it was held, in the absence of fraud or misrepreséntation, that where land was1 sold' a;s containing so many acres, “more or less,” quantity did riot enter into the essence of the contract of sale. The same doctrine was' held in Marbury vs. Stonestreet, 1 Md. Rep., 152. That case is distinguished from this by the fact, that there, the property was described as “containing by survey 669 acres,” there being “no qualifying expression, such as more or less, by estimation, eye.” Concurring with the court below, that the complainants cannot succeed upon the case made in their bill, we approve its decree dissolving the injunction and dismissing the bill. Decree affirmed..