*Nelson, claiming a credit for a much larger sum, appealed MARCH,1808. to this Court. Nelson V. Matthews Wickham, for the appellant. There can be no question and another. as to our right to compensation for the deficiency in the land. The only inquiry is, what shall be the measure of that compensation. I shall contend that we are entitled to compensation, not at the date of the contract, but at a subsequent period. As to so much of the land called for in the deeds as never existed, there is some difficulty, but as to that lost by prior titles, Nelson is entitled to compensation at the time when he received the damage. He is entitled to his contract. If the price had depreciated, he must have submitted to the loss; as it has appreciated, he is entitled to the benefit. He can only be compensated by giving him the full value of his contract after the purchase, at which time he sustained the injury. In Groves v. Graves.(a) which was a contract for the (a) 1 Wash. 1. delivery of certificates, the Court determined that the standard of value should be fixed on the day when the contract was to have been performed. The ground that the Court went upon was, that after the day of payment had past, the party was not bound to receive the certificates, but might resort to his action. In Reynolds v. Wal Ter,(b) the Court determined that Reynolds should pay the (6) Ibid. 164 'value of the certificates at the time of the trial; and a distinction was taken between the two cases, in this, that, in the former, there was a contract to deliver the certificates at a future day, but,, in the latter, there was no contract, the certificates having been fraudulently obtained by the agent of Reynolds, and a bill was brought by the heirs and administrator of Waller for a specific restitution. So in Morris v. Alexander,(c) the owner of certificates was (c) 3 Call, considered as entitled to the certificates themselves, if to be 89. had; if not, their value at the time of the decree. The same doctrine was recognised in the late case of Short v. VOL. II. Y Nelson Matthews MARCH, 1808. Skipwith, in the Federal Court; and nothing but the pecu liar circumstances of the case induced the Court to fix the value at a different time. The difference, however, beand another. tween certificates and land is this: The contract cannot be satisfied by other lands, because there cannot be an identity of situation, &c. But with respect to certificates, if the purchaser be disappointed, he can vest his money in others. The next point to be considered is, what should be the standard of compensation. The lands which were lost were wood-lands, rendered peculiarly valuable on account of their being annexed to the old plantation. They had, therefore, a relative value, and should have been estimated accordingly. The Chancellor has allowed the real and not the relative value; though the term real value is unintelligible, without considering, at the same time, the relative value. The real value of the land is its relative value; because its value is estimated in reference to its utility. The true injury the person sustained should always be the measure of damages. If the value of the land at the time of the purchase be resorted to, what ought to be regarded? The price paid? Surely not. A man may agree to give for a tract of land a much greater price than it is worth. In this case, it ap pears, from the report of the commissioners, that Nelson agreed to give too much; and an arbitrary standard of their own has been established. According to this rule, and the principle established by the Chancellor, if Matthews had not had a foot of land, Nelson would still have had to pay him a considerable sum of money; because the real value of the land at the time of the purchase would have fallen so far short of the purchase-money. This shews the difficulty and impropriety of making the price and date of the contract the standard of compensation. [Here Mr. Wickham went into a minute calculation founded on the report of the commissioners, and the testimony of the witnesses, which stated that the value of the large tract was impaired MARCH, 1808. one-fifth in consequence of the loss of the surveys; and en- Nelson deavoured to shew that Nelson was entitled to a much larger sum than had been allowed by the Chancellor.] V. Matthews and another. Call, for the appellees. No deduction ought to be allowed for the twenty acres deficient in the large tract, because the title bond speaks of it as containing so many acres, more or less, and the deed conveys it by estimation only. It is a rule of law, that if an estate be sold by estimation, the vendor is not liable for a small deficiency.(a) (a) Sugden's If a person wishes an exact quantity, he must contract for Law of Ven it by the acre, in which case he would be entitled to compensation in the event of a deficiency.(b) It is clear that no discount ought to be allowed for the surveys. They were made on the 8th and 9th of February, 1785, (before the date of the bond,) for Nelson himself; one contained 39 acres, the other 115. On the 11th of February, 1785, the bond was entered into. The inference is, that Matthews never saw those surveys; for if he had seen them, he never would have inserted in the condition of the bond, that they contained about 200 acres. Matthews was to convey the land contained in BUCHANAN's surveys. If Nelson knew what was in those surveys, and did not disclose it to Matthews, he was guilty of a voluntary concealment, and cannot be relieved in equity. The entries were originally made, but Matthews never had the surveys. Nelson caused the entries to be surveyed himself; and obtained a deed from Beverley, with general warranty, for the quantity contained in them. The condition of the title bond clearly shews, that Nelson took the surveys from Matthews, for better for worse; and if he has been injured, he must resort to Beverley, upon his warranty, for redress; according to a rule of law, that, although in personal things you must resort to the vendor, yet, in real, you must rely on the title papers alone. But if any compensation is to be made for deficiency, it dors, 201. (b) Ibid. MARCH,1808. ought only to be for 20 acres in the large tract; and that Nelson V. according to the actual value at the time of the contract. The Chancellor has correctly decided, that no allowance and another, should be made for the difference of eight acres between the actual quantity, and that called for in Matthews' title Matthews papers; such deficit being no more than a purchaser in gross might reasonably expect. In that position, he is for(a) See note, tified by the decree of this Court in Quesnel v. Woodlief.(a) next page. When an action is brought upon the warranty, the plaintiff at law goes upon the ground of future disturbance, and has a right to other lands, or as much money as will replace those from which he was evicted. But, on a bill in equity, it is like the action for money had and received; and the complaint is, that the vendor has had the purchase-money for a consideration which happened to fail. The only rule which can be adopted, is, to take the actual damage, which is to be estimated by the money paid with interest. You cannot ascertain the relative value of parcels composing an entire tract: you cannot say that so much money was paid for one part of the land, and so much for another. In the (a) 1Ves. jun, case of Calcraft v. Roebuck,(a) the purchaser came into a Court of Equity to be relieved on account of two acres, which lay in the centre of the tract, and for which the title proved to be bad. The Chancellor thought that the actual value with interest should be the rule, without regarding the particular situation of the two acres. If the land was really lost on the 11th of February, 1785, that ought to be the period at which damages should be ascertained. If Nelson wants ulterior damages, he must look to Beverley, who warranted the title. Matthews only sold the surveys such as they were. 221. Wickham, in reply. The only question in the cause respects the rate of compensation; upon which very little need be said. As to the objection, that Nelson bought th land for so many acres more or less, the law has been long settled in this country, upon that point, in the case of Ques- MARCH,1808. nel v. Woodlief and others.(1) Whenever a man pur- Nelson chases land for "more or less," he is entitled to the quantity specified, making a reasonable allowance for small in- and another. V. Matthews (1) The case above referred to was decided during the period of Mr. Washington's Reports, but was omitted in his collection. It has been so often inaccurately quoted out of Court, and even in Court has been cited under such different appellations, that it is believed a correct statement of the case, from the record, will be acceptable to the profession. QUESNEL. WOODLIEF, RUFFIN and HARRISON. November 19, 1796. Woodlief, one of the appellees, advertised for sale, the tract of land whereon he resided, called Sion Hill, and described it as containing about 800 acres, Quesnel became the purchaser, at private sale, and agreed to give the price of four pounds per acre, estimating the tract at 800 acres, which amounted to the sum of 3,2001. for which he executed his bonds payable at several different periods. The parties had been some time in treaty for the land; Woodlief representing it as held by old title-papers, and reputed, by himself as well as former proprietors, to contain at least 800 acres, and Quesnel believing that it would hold out that quantity. The land was not re-surveyed by Woodlief, either be fore he advertised it, or sold it to Quesnel. After the sale, Woodlief still expressed his belief that the tract contained 800 acres, and Quesnel accepted a deed for that quantity "more or less." But, in fact, upon an actual survey, it was found to contain only 608 acres, 1 rood, and 18 poles. Before any survey was made, Quesnel gave a deed of trust upon the same land as containing 800 acres, (without any qualification,) to Harrison as trustee, for the purpose of securing a balance of the purchase-money, part to Woodlief, and part to Ruffin, to whom some of the bonds of Quesnel had been assigned. A bill was exhibited by Quesnel in the High Court of Chancery for an injunction to judgments obtained on some of the said bonds, on the ground of the deficiency in the quantity of the land. The Chancellor, on a final hearing, dismissed the bill; and Quesnel appealed to the Supreme Court of Appeals, where the following decree was pronounced. "That the appellee Woodlief, not having surveyed the tract of land in "the bill mentioned called Sion Hill, before he advertised the same for "sale, or sold it to the appellant, but that, supposing there had been an "old survey which he has not produced or referred to, and does not ap |