This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Abatement allowed for deficiency, although laud not pro-feeaedly sold by the acre.
The above rule, . where land is bought by the acre, or (which is the same thing) (a) 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 (b): they have been held to include a small adjoining strip of land over which the grantor had exercised acts of ownership, although the dimensions and boundaries of the property conveyed were stated in the description (c); so, on the other hand, they have been held to cover a deficiency of upwards of five out of forty-one acres (d); but not of 100 out of 349 acres (e). So, in the case of Gell v. Watson (f), 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.
A* to the effect of the expresaiona "by estimation," "more or less," etc.
(s) Mill v. Buckley, (1811) 17 Ves. 394, 401; King v. Wilson, (1843) 6 Beav. 124; and see Mckenzie v. Hesketh, (1877) 7 Ch. D. 675; 47
L. J. Ch. 231.
(t) See Alderdale Estate Co. v. Mcgrory, 1918, A. C. 508, a case where there was a known defect of title.
(u) See Shackleton v. Sutcliffe, (1847) 1 De G. & S. 609; Cobbett v. Locke King, (1900) 16 T. L. R. 379; and cf. Lett v. Randall, (1883) 49 L. T. 71; cf. Cato v. Thompson, (1882) 9 Q. B. D. 616; May v. Platt, 1900, 1 Ch. 620, 621; 69 L, J. Ch. 357; Bellamy v. Debenham, 1891, 1 Ch. p. 420; 60 L. J. Ch. 166.
(x) King v. Wilson, (1843) 6 Beav. 124.
(y) Frost v. Brewer, (1889) 3 Jur. 165.
(z) Calcraft v. Roebuck, (1790) 1 Ves. 221.
(a) Hill v. Buckley, (1811) 17 Ves. 401.
(b) See Marquis Townshend v. Stangroom, (1801) 6 Ves. 328, 341; Hill v. Buckley, (1811) 17 Ves. 394; Neale v. Parkin, (1794) 1 Esp. 229; Anon., (1689) cited Freem. 106; Davis v. Shepherd, (1866) 1 Ch.
What deficiency they will cover.
On a sale by auction, the property was, by an unintentional error, described as containing "an area of 7,683 square yards, or thereabouts," when in fact it contained only 4,350 square yards. By the 10th condition it was provided that if the purchaser should make any requisition as to title, compensation, etc, which the vendor should be unwilling to comply with, the latter should have the usual power of vacating the sale; and by the 17th condition the admeasurements were "to be presumed correct," and no compensation allowed or required in respect of any inaccuracy. The purchaser, after having taken possession, and after the date fixed for the completion of the contract, claimed compensation, whereupon the vendor elected to rescind the contract. On a bill by the purchaser for specific performance with a compensation, V.-c. Stuart decreed specific performance, but only upon payment of the purchase-money in full: the purchaser being willing to take the land at the full price rather than lose it altogether. On appeal, this decision was affirmed by Lord Westbury: but his Lordship in his judgment expressed his opinion that the
17th condition was intended to cover only the consequences of inconsiderable errors; and intimated that upon the case before him the condition could not have been enforced by the vendor had he been plaintiff instead of defendant in a suit for specific performance (g). On the same principle, where the contract was for the sale of an estate containing 21,750 acres, the actual acreage being afterwards ascertained to be only 11,814 acres, and the price appeared to have been fixed with reference to the rental, the Court refused, at the suit of the purchaser, to decree specific performance on payment of the purchase-money, less a proper compensation for the deficiency in quantity, the defendant having expressed willingness either to complete the contract on receiving the full price stipulated for, or to cancel the contract (h).
Chsestborough. at pp. 416, 418; 35 L. J. Ch. 561; Dodd v. Burchall, (1862) 31 L. J. Ex. 364; Be Byan's Est., (1868) Ir. R. 3 Eq. 255; Be Hurlbalt and Chaytor, (1868) 57 L. J. Ch. 421.
(c) Simpson v. Bendy, (1860) 8 C. B. N. S. 433; aff. (1861) 7 Jur. N. S. 1058.
(d) Winch v. Winchester, (1812) 1 V. & B. 375.
(e) Portman v. Mill, (1839) 2 Rus. 570; 8 L. J. N. S. Ch. 161. (f) Sag. 14th ed. 325; and see Leslie v. Tompson. (1851) 9 Ha. 268, 273; 20 L. J. Ch. 561.
Where land is described particularly, by stating not only the acres but also the roods, or roods and poles, the qualifying expressions "by estimation," "more or less," or " thereabouts," cannot, perhaps, be held to provide for more than inaccuracies in the roods or poles (i): and, of course, a vendor cannot, in any case, rely upon such expressions, if he fraudulently misstates the quantity (k). As to what the expression "et csetera" will cover, in a contract of sale, see Be Walmsley and Shaw's Contract (l).
Semble, only deficiencies in the fractional parts of the acre, when the description particularizes fractional parts.
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 (m). 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 is 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.