December

ex'or &c.

1842. ferred to in it, conclude with equal if not greater cogency in support of a construction of the will, whereby Stinson the children take a present interest in the profits, which, however small the property, is not destructible at the will or discretion of the mother, and for which, if withheld, the injured child is entitled to a remedy in equity.

V.

Day

& wife.

CABELL, P. approving the decision in Wallace & wife v. Dold's ex'ors & al. and being of opinion that it ruled the present case, held that the decree ought to be reversed and the bill dismissed.

Decree reversed and bill dismissed.

Richmond.

CRAWFORD and another v. M'DANIEL.

(Absent Cabell P.)

A deed of bargain and sale conveys a tract of land described as
"containing by survey 785 acres, and bounded as follows, to wit,
beginning," &c., (here certain metes and bounds were set out)
"this part containing 765 acres, and another part attached to the
same tract containing 20 acres, and making up the full amount
of 785 acres, being bounded as follows," &c.—the price stated in
the deed being 11,775 dollars, which is the product of 785 acres
at 15 dollars per acre, and there being no evidence but the deed
itself of the terms of the contract between the vendor and ven-
dee. It turns out that the tract contains less than 785 acres.
HELD: The vendee is entitled to compensation for the deficiency.
Where there is a sale of land by the acre, a right of surveying exists
whether expressly reserved or not, and if no time is limited for
making the election to survey, it may be done at any time before
the whole business is closed between the parties. Accord. Nelson
v. Carrington & others, 4 Munf. 432, and Carter v. Campbell,
Gilm. 170.

The vendee of land injoins a judgment rocovered against him for
a balance of the purchase money, alleging a defect in the title to
the land, which he fails to prove, whereupon the injunction is
dissolved and the bill dismissed. Afterwards he brings another
suit, in which he establishes his right to compensation for a de-
ficiency in the quantity of the land, to an amount equal to the
unpaid balance of the purchase money. HELD: He is entitled
to relief as well against the damages accrued on the dissolution
of the first injunction, as against the judgment at law.
A bond for purchase money of land, executed by the vendee to one
of the vendors, being assigned by the obligee to another of the
vendors and a third person, the vendee brings a suit in equity
against the vendors and assignees, and obtains relief against the
payment of the bond; but held that in the condition of the
cause there is nothing to justify a decree over in favour of the
assignees.

1842. December

1842. December

Crawford & al.

V.

The vendee of land having paid a part of the purchase money to the

assignee of his bond for the same, it turns out the quantity of the land is deficient, and that the money already paid to the assignee is more than the vendee was bound to pay. HELD: He has no equity to recover back the excess from the assignee.

M'Daniel After judgment recovered by vendor against two joint vendees of land for a balance of the purchase money, one of the vendees dies, and the other brings a suit in equity against the vendor, alleging and proving a deficiency in the quantity of the land to a value exceeding the unpaid balance of the purchase money, and claiming that the judgment be injoined and the overpaid money refunded. HELD, it is improper to decree in the cause without having the representatives of the deceased vendee before the court: dissentiente, Stanard, J.

Appeal by Sophia Crawford and Alden B. Spooner from a final decree of the Circuit Superior Court of Law and Chancery for the town of Lynchburg, pronounced on the 18th of January, 1832, in a suit in chancery, in which John M'Daniel was plaintiff, and the said Sophia Crawford and Alden B. Spooner with others were defendants: by which decree a perpetual injunction was awarded against all further proceedings on a judgment obtained by Crawford and Spooner, as assignees of William Vannerson, against M’Daniel, and they were directed to pay him the sum of 292 dollars 50 cents, with interest thereon from the 17th of November, 1820, till paid, and costs.

The material facts of the case were as follows:

In October, 1816, the said John M'Daniel and a certain Richard Jones jointly purchased of John Patton and Sarah his wife, William Vannerson and Henrietta his wife, and A. B. Spooner and Elizabeth his wife, a parcel of land in the county of Amherst, for the sum of 11,775 dollars, and received a deed therefor, bearing date the 17th of October, 1816, in which the land is described as "containing by survey 785 acres, and bounded as follows, to wit, beginning" &c. (here certain metes and bounds were set out) "this part containing 765 acres, and another part attached

December

& al.

V.

to the same tract containing 20 acres, and making up 1842, the full amount of 785 acres, being bounded as follows;" (here the metes and bounds were given; Crawford and then the deed proceeded-) "to have and to hold the said tract and parcel of land containing M'Daniel 785 acres described and bounded as aforesaid, with the hereditaments, &c. unto the said John M'Daniel and Richard Jones, their heirs and assigns forever." M'Daniel and Jones paid all the purchase money of the land except 600 dollars, part of a bond for 1804. dollars 40 cents, payable the 17th of November, 1820, which they had executed to William Vannerson, by whom it was assigned to Sophia Crawford and A. B. Spooner. This balance they refused to pay, alleging that the title to part of the land was defective; whereupon the assignees brought a suit against them on the bond in the Superior Court of Law for Amherst county, recovered a judgment, and took out execution, under which M'Daniel gave a forthcoming bond with surety. By a suit in the Superior Court of Chancery for the Lynchburg district, M'Daniel and Jones injoined the judgment, upon the ground of the alleged defect in the vendors' title to part of the land: ¡but at the final hearing on the 10th of May, 1828, the court dissolved the injunction and dismissed the bill. Crawford and Spooner then moved for and obtained judgment in the Superior Court of Amherst on the forthcoming bond executed by M'Daniel, which judgment included 431 dollars damages in lieu of interest for the time the injunction had been pending; and proceeded, to sue out execution thereon.

Whereupon, in October, 1828, M'Daniel (Jones being now dead) filed a new bill in the Superior Court of Chancery of Lynchburg, alleging, that at the time the first suit was brought, and during its progress, neither he nor Jones knew of any other equity against the payment of the purchase money, than the sup

December

& al.

V.

1842. posed defect of title on which they relied in that suit; but that since Jones's death he had discovered by a Crawford survey made for the purpose of a partition between himself and Jones's representatives, that the tract, M'Daniel instead of 785 acres, contained only 734, so that it was deficient in quantity 51 acres. This survey he alleged to have been made by John Pryor, the deputy surveyor of Amherst county. The purchase of the land, he insisted, was by the acre, at the price of 15 dollars per acre; and for the deficiency in the quanti ty, he claimed that the judgment against him on the forthcoming bond should be injoined, and that the money which had been overpaid should be refunded. The defendants to this bill were Sophia Crawford and A. B. Spooner, as assignees of Vannerson, and the aforesaid vendors and their wives; that is, John Patton and wife, William Vannerson and wife, and A. B. Spooner and wife. Jones's representatives were not parties, either plaintiffs or defendants.

The injunction prayed by the bill was awarded. Answers were put in by the defendants Sophia Crawford, Spooner and wife, and Vannerson and wife, denying the sale by the acre, and the alleged deficiency, and insisting that the sale was in gross. Process was served on the defendants Patton and wife, but they never answered.

The court directed another survey of the land, which was made by the same John Pryor, deputy surveyor of Amherst, who had before made a survey for Jones. According to this last survey, the whole tract contained but 725 acres, being 59 acres less than the quantity called for by the deed.

The only deposition filed in the cause was that of a witness for the defendants, which was excepted to by the plaintiff and disregarded by the court.

At the final hearing, the Circuit Superior Court for the town of Lynchburg (to which the cause had been