1877. July Term. result is reached as to the extent of deficiency, we will coöperate in bringing the matter to the attention of the court, in order that the matter may be fairly and legally adjusted. As previously stated, it is not our function as commissioners to make the adjustment; but we will aid in hav- Hoy & als. ing it done by the court." These letters are a virtual admission by the commissioners that there had been an error, a mutual mistake, in the estimate of the quantity of land sold, and that the appellant was entitled to a "fair adjustment" of his claim to compensation for the deficiency. The evidence not only shows that the contract was for the purchase of a specific quantity of land at a gross sum, but that the quantity must have influenced the price agreed to be paid. The detached parcel of forty-four acres appears to have been considered by both parties as of little value. The other tract was valuable, not only on account of the costly buildings upon it and the rights and privileges appurtenant to it, but also by reason of the intrinsic worth of the land itself, the greater portion of which is represented by witnesses as worth from $50 to $100 per acre, the other portion being esteemed by them as of comparatively little value. It does not appear distinctly in which portion the deficiency existed; although the appellant, in one of his sworn statements read in evidence, says it was in the "tillable" portion. The respective portions were not separately valued in the sale and purchase; and the just inference from the whole proof is, that so great a difference as thirty-four and one-half acres between the estimated and actual quantity in the tract, if known at the time of sale, would have materially affected the price, if indeed it would not have defeated the sale altogether. In his testimony the appellant says, that had he doubted the Watson V. 1877. July Term. accuracy of the quantity represented, he certainly would not have made the purchase at the price agreed upon, nor would he have purchased it had he known it would have fallen short as much in quantity as it Hoy & als. did. Watson V. I am of opinion that, under this state of facts, the appellant was entitled to compensation for the deficiency in the estimated quantity. But it is contended by the counsel for the appellees, that the sale having been confirmed by the court without objection or exception by the appellant, he was thereby precluded from asserting his claim afterwards; and such seems, from the decree, to have been the opinion of the learned judge in the court below. I cannot agree to this. It is true that in Virginia the general rule would seem to be, that objections by purchasers to judicial sales for defect of title must be made before the sale is confirmed by the court, and that such objections afterwards made come too late. Threlkelds v. Campbell, 2 Gratt. 198; Young's adm'r & others v. McClung & others, 9 Gratt. 336, 358; Daniel & others v. Leitch, 13 Gratt. 195, 212, 213. The English rule is different. The reason of the difference would seem to be, that in England the courts undertake to sell a good title, while in Virginia they sell such title only as the parties to the suit have. Hence, in such sales here the rule of caveat emptor applies. But even here the rule is subject to exceptions. "There are certainly some defects," says Judge Moncure, in Daniel & others v. Leitch, supra, "to which objection may be made by a purchaser even after confirmation, here as well as in England-such, for example, as a defect arising from a want of jurisdiction, or want of parties, which would prevent a purchaser from getting the title intended to be sold and conveyed to him." 1877. July Term. Watson V. But I apprehend the rule has no application to the equity of a purchaser arising from after discovered mistake, fraud, or other like matter. Courts of equity are always ready to relieve innocent injured parties in such cases, unless by reason of acquiesence, laches, Hoy & als. or other special circumstances, relief would be inequitable. There are no such circumstances precluding relief in this case. In all cases like the one in judgment, equitable jurisdiction is based on the mutual mistake of the contracting parties, or the mistake of one of them induced by the culpable negligence of the other. No fraud is imputed here. It is a case of mutual mistake. The sale was reported and confirmed within three weeks after it was made. The mistake was dis covered by the appellant soon thereafter and promptly made known, and no act was done or omitted by him which can be construed into acquiesence, waiver, or laches on his part. On the contrary, the commissioners in their answer to appellant's petition for relief in the court below, say, that the appellant "prior to the period when the deed was to be made and continuously since, has raised the issue as to the quantity of land he was entitled to claim under said contract.' The mistake can be rectified and compensation made to the appellant by allowing for the ascertained deficiency a proper abatement of the balance of purchase money still owing by him; and thus, while doing justice to him, no harm will be done to others. It would be singular indeed if this could not be done by a court of equity which by its agents is a party to a mistake it is called upon to relieve against. In England, it would seem, compensation would be allowed the purchaser under such circumstances after confirmation of the sale. 2 Dan. Ch. Prac. (ed. 1871), 1282, 1283. Jones v. Tatum, 19 Gratt. 720, was a case Watson V. 1877 of a judicial sale which had been reported and conJuly Term. firmed. After confirmation, the purchaser having made default in the payment of the last installment of purchase money, a rule was made against him to Hoy & als. show cause why the land should not be resold to satisfy the balance of purchase money remaining unpaid. He answered the rule by affidavit, alleging defect in the title to the land, and also that there was a deficiency of one acre in the tract of ninety acres sold to him, and claiming an abatement of the purchase money for this deficiency. Although the abatement was not allowed, the refusal was not put by the president, who delivered the opinion of the court, on the ground that the purchaser was precluded from relief by the confirmation of the sale, although that objection seems to have been made in the argument at the bar, but on other and entirely different grounds; to wit: 1st, that the sale was in gross; and, 2d, that if it were otherwise, the alleged deficiency was not proved. The opinion seems to proceed upon the idea that if the purchaser had been otherwise entitled to the abatement claimed, the confirmation of the sale would not have been an impediment. Being of opinion, for the reasons stated, that the appellant was entitled to a proper abatement of the balance of purchase money owing by him for the deficiency of thirty-four and one-half acres in the quantity of land bought by him, and, consequently, that the court below erred in dismissing his petition, it only remains to consider what should be allowed him by way of abatement. The rule of compensation or abatement is according to the average value per acre of the whole tract, unless particular circumstances require a departure from that rule. Blessing's adm'rs v. Beatty, 1 Rob. Rep. 305; Hoback v. Kilgores, 26 1877. July Gratt. 442; Triplett v. Allen, Id. 721; Nelson v. Matthews & others, 2 Hen. & Mun. 164, 178; Nelson v. Car- Term. rington & others, 4 Munf. 332, 340; Hundley v. Lyons, 5 Munf. 342. Watson V. There are particular circumstances in this case, as Hoy & als. there were in Hoback v. Kilgores, supra, requiring such departure from the general rule. The buildings, bridge privileges and fisheries, are valuable, and their value must have entered largely into the price agreed to be paid for the entire estate. These are retained by the purchaser; and therefore in fixing the amount of the abatement their relative value should be deducted from the contract price ($25,000) for the whole estate, and from the sum remaining after the deduction the average price per acre of the estimated quantity of all the land (five hundred and three acres) should be ascertained, and the thirty-four and one-half acres multiplied by such price per acre as will give the correct amount, which should be credited on the principal sum still owing by the appellant as of the date from which it bears interest. I am for reversing the decree of the court below and remanding the cause for further proceedings. MONCURE, P., and CHRISTIAN and STAPLES, J's., concurred in the opinion of Burks, J. The decree was as follows: This cause, which is pending in this court, at its place of session at Richmond, having been fully argued, but not determined at said place of session, this day came here the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of VOL. XXVIII-90 |