The purchaser will be entitled to compensation for a deficiency in quantity, even although the estate be not sold professedly by measurement (l); and although, of course, he could not claim compensation if it appeared that he contracted with a knowledge of the deficiency, such knowledge will not be assumed from the fact of his being intimately acquainted with the estate (m), or even being the occupying tenant (n); nor is the right to compensation precluded by a condition that he shall not object to complete his purchase if the quantity should turn out less than that stated in the particulars (o); nor by acts which amount to a waiver of objections to the title (p).

Abatement in purchase-money in respect of original detects in estate.

Abatement allowed for deficiency although land not professedly sold by the acre.

Knowledge of deficiency not readily attributed to purchaser.

(f) Lord v. Stephens, 1 Y. & C. Exch. 222.

(g) Harford v. Furrier, 1 Madd. 532.

(h) Vide infra, Ch. XVIII.

(i) 3 Madd. 395.

(j) Minchin v. Nance, 4 Beav.332

(k) Vide infra, Ch. XVIII.

(l) Hill v. Buckley, 17 Ves. 394, 401; King v. Wilson, 6 Beav. 124.

(m) See Shackleton v. Sutcliffe, 1 De G. & S. 609.

(n) King v. Wilson, 6 Beav. 124.

The above rule, where the estate is professedly bought by the acre, or (which is the same thing) (q) where the quantity is stated and there is nothing to rebut the ordinary presumption of price having been fixed with reference to quantity, may, it is conceived, be strictly enforced where no words are introduced to qualify the statement as to quantity; the qualifying expressions, "by estimation," and, " be the same more or less," are, however, in very general use; and the cases do not seem to define their precise effect: they have been held to cover a deficiency of upwards of five out of forty-one acres (r); but not of 100 out of 349 acres (s); so, in a case of Gell v. Watson (t), similar expressions were not allowed to cover a deficiency of two acres in two closes forming part of a much larger estate, the quantity of the two closes being stated to be (according to a specified plan) 8 a. 1 r. 4 p.

And where land is described thus particularly, by stating not only the acres but also the roods, or roods and poles, these qualifying expressions cannot, perhaps, be held to provide for more than inaccuracies in the roods or poles (u); and, of course, a vendor cannot, in any case, rely upon such expressions, if he fraudulently misstate the quantity (v).

The purchaser's right is strictly to compensation, and not necessarily to an abatement of purchase -money proportionate to the surface deficiency: thus, where, upon the sale of woodlands, the value of the timber was correctly stated, but the land was represented to contain more by twenty-six acres than the actual quantity, he was allowed, as compensation, the estimated value of twenty-six acres of woodland minus the wood (w): the case is valuable as illustrating a principle, but, as a decision between parties, its justice may be thought questionable: for it is clear that in purchasing woodland (unless there be no growing timber), the value of the estate depends, not only upon the present worth of the timber and of the land apart from it, but upon the two taken together, with reference to the relative situations of the trees being such as to afford them sufficient nourishment and full space to arrive at maturity.

As to the effect of the expressions "by estimation," " more or less," etc, being added to statement of quantity.

What deficiency they will cover.

Semble - only deficiencies in the fractional parts of the acre, when the description particularizes fractional parts.

Purchaser's right confined to compensation.

(o) Frost v. Brewer, 3 Jur. 1G5.

(p) Caleraft v. Roebuck, 1 Ves. jun. 221.

(q) 17 Ves. 401.

(r) Winch v. Winchester, 1 Ves. & B. 375.

(s) Portman v. Mill, 2 Russ. 570. (t) Sug. 372.

(u) 17 Ves. 401; 9 Jarm. Conv. by S. 37.

(v) 1 Ves. & B. 377; Sug. 371.

As respects the quality of the estate, - A purchaser, it appears, may claim compensation in respect of any deficiency which "admits of a certain estimation" (x); for instance, he may claim it for dilapidations of a house described as "in good repair" (y), or for the want of cultivation of land described as being in "a high state of cultivation" (z), but not for that which does not admit of a pecuniary equivalent; for instance, it is doubtful whether compensation could be claimed in respect of the land lying dispersed, instead of within a ring fence, as described (a); although such a variation might be sufficient to avoid the sale: and he cannot claim compensation in respect of a misdescription known to him when he entered into the contract (b).

Surface deficiency on sale of woods.

Abatement in purchase-money in respect of deficiency in quality may be claimed, when.

(w) Hill v. Buckley, 17 Ves. 394. (x) 10 Ves. 508.

(y) Dyer v. Hargrave, 10 Ves. 505; Grant v. Munt, G. Coop. 173.

(z) Dyer v. Hargrave, ubi supra. (a) S. C; Fewster v. Turner, 6 Jur. 144.

(b) See last note.