AUSTIN v. SANDERS.

(Richmond, January 24, 1918.)

1. EQUITY-Jurisdiction-Deficiency in Quantity of Land.-Courts of equity have jurisdiction to render decrees for the value of the deficiency in the quantity of land sold by the acre. The basis of this jurisdiction is either mutual mistake, or the mistake of one party occasioned by the fraud or culpable negligence of the other. The jurisdiction being elementary, it is immaterial that the complainant has a complete and adequate remedy at law.

2. IDEM-Deficiency in Quantity of Land-Sales by Acre and in Gross -Evidence. In the case at bar, held, that the evidence shows that the sale was not expressly or impliedly a sale by the acre.

Appeal from Circuit Court of Prince William county. Affirmed.

E. Hilton Jackson and C. A. Sinclair, for the appellant. Jno. M. Johnson and Thomas H. Lion, for the appellee.

BURKS, J.:

This is a suit in equity to recover for deficiency in quantity of a tract of land sold by the appellee to the appellant. There was a demurrer to the the bill on the ground that the complainant had a full, adequate and complete remedy at law and that a court of equity was without jurisdiction in the premises. The demurrer was properly overruled. Courts of equity have jurisdiction to render decrees for the value of the deficiency in the quantity of land sold by the The basis of this jurisdiction is either mutual mistake, or the mistake of one party occasioned by the fraud or culpable negligence of the other. The jurisdiction being elementary, it is immaterial that the complainant has a complete and adequate remedy at law. Hull v. Watts, 95 Va. 10; Blessing v. Beatty, 1 Rob. (40 Va.) 316.

acre.

Upon the hearing on the merits, the bill of the complainant was dismissed, and from that decree this appeal was taken. The law relating to sales by the acre is well settled in this State, and is not controverted by the appellee, and hence need not be restated; but the appellee denies that the evidence in the cause makes out a case for the application

of the law. The case, therefore, is narrowed down to an examination of the evidence to ascertain the facts. Numerous deeds and other documents were offered in evidence, but the appellant was the only one of the parties to the transaction who was examined as a witness in the case. Neither appellee nor J. W. Latham, who negotiated the sale and was a partner in the purchase, was examined as a witness. The appellant files with his deposition a number of letters from Latham, but none of his own, so that his side of the correspondence can only be gathered from the replies made by Latham. Bearing this fact in mind, we shall endeavor to state the case as fairly as we can from the record.

Miss Mary Custis Lee was the owner of a tract of 1,677 acres of land in Fairfax county, which was divided into three tracts containing upwards of five hundred acres each. A map of this and other parts of what was known as the "Ravensworth" lands was made by R. R. Farr, surveyor, and most of the conveyances of any part of "Ravensworth" refer to this map. Accotink Run ran through the lands of Miss Lee, and two of the subdivisions thereof, one containing 512 1-2 acres and the other 581 acres, lay east of the Run, and the remaining one, containing 583 acres, which is the land in controversy, lay west of said Run. The last mentioned tract came, by mesne conveyances to Samuel L. Monroe and F. F. Marbury, who placed it in the hands of J. W. Latham, a real estate agent of Washington, D. C., for sale. Just how Latham first got the idea that the tract contained eight hundred acres is not clear, though at a later stage he tells how this idea was confirmed. After some negotiations he effected a sale to the appellee, Frederick H. Sanders. The deed to Sanders is dated July 31, 1913, and he gave back a deed of trust to secure $4,000 of purchase money. This deed was not acknowledged till August 15, 1913, and both deeds were recorded on September 4, 1913. Just when these deeds were delivered does not appear, but both were probably delivered the same day, on or after Au

gust 15, 1913. The deed from Monroe and Marbury to Sanders describes the land as "a part of Ravensworth estate, and assessed for taxation as 583 1-2 acres." Sanders evidently bought the land for speculative purposes, and immediately (before his deed was recorded) put it into the hands of the same J. W. Latham for sale, who set to work to find a purchaser. At this stage of the transaction he tells us why he thought the tract contained 800 acres. In July, 1914, he wrote to the appellant: "As to the 800 acres, I got that from Monroe himself, after the sale was made to Sanders. Monroe brought the original survey or tracing to me and showed me where there were 581 acres surveyed and stated, if there were 581 acres in that piece there were even more than 800 in the piece we bought; that I believe I showed you." This map or tracing seems not to have been drawn to scale, and hence the error in his deduction, although the deed to Saunders said that it was "assessed for taxation as 583 1-2 acres." While Latham says that he got this information from Monroe after he sold to Saunders, which could not have been earlier than July 31, 1913, this is manifestly an error, for in a letter to the appellant dated June 30, 1913, at least a month before the conveyance to Saunders, he speaks of this land as "the 800 acre tract." Doubtless he conceived this idea of acreage by the comparison aforesaid, but he is manifestly in error as to the date of the conception. There is no evidence in the record that he had any other information that the tract contained 800 acres.

This tract of land was in the hands of J. W. Latham for sale as agent for Monroe and Marbury prior to the sale to Sanders, which latter was probably not consummated earlier than August 15, 1913. Prior to the latter date Latham had conceived the idea that this tract contained 800 acres, and he always spoke of it as "the 800 acre tract." It seems to have been first brought to the attention of appellant by Mr. Meschendorf, a friend of Latham, in June, 1913, a month and a half or two months before Sanders

acquired title. It is also manifest that the land was being bought and sold for speculative purposes. The first correspondence we have on the subject is a letter from Latham to appellant, dated June 30, 1913, in which he speaks of the land as "the 800 acre tract," and also of the reasons why he thinks the purchase was a good one. On that date he wrote the appellant:

"Mr. Meschendorf of Forest Depot, Virginia, with whom I co-operate in the sale of farms, writes me that you want some more information regarding the 800 acre tract I have for sale 14 miles from this city.

"This is one of the great bargains we have, besides the land and timber, there is a fine water power on the place, which the Alexandria Lighting Company is contemplating buying, to supply the power for the electric plant in the town, the fuel for which now costs them $30,000 per year and there is no other power in existence that can be obtained. If you will come down and buy this place, I can make you some money. There is a splendid growth of young timber on this tract, which will be worth the price of the farm in a few years."

The next that we hear anything about this farm is in a letter from Latham to appellant, under date of August 18, 1913, in which he again speaks of this tract as "the 800 acre tract," and says further:

"You spoke as if you would buy it, if I would take half interest in it. I will do so, and put up one-half of the expense, and divide the profits equally, between us when sold; and should I bear all expense of showing the property to customers, advertising and so on, I will charge one-half commission or 2 1-2 per cent.

"If you think well of this, come up and inspect as soon as possible and lets fasten it, or if you cannot get off right away, write me just when you can, and I will try to get him to hold it off."

The appellant, in his deposition, admits that he and Latham were partners in the purchase, and in effect says that

he would not have purchased if Latham had not gone in with him. This partnership between Latham and the appellant must have been formed about that date. Presumably the letter of August 18, 1913, was taken as an acceptance of the proposition of appellant that Latham should go into partnership with him. The appellant states that he first came into personal relationship with Latham at his office in Washington in the latter part of August, 1913; so that this must have been after the partnership was formed. The appellant states that it was at this interview in his office in he latter part of August, 1913, that he was assured by Latham that there were 800 acres and probably more in the track. As to the source of Latham's information as to the quantity of acres in the tract, the appellant was asked this question: "Did Latham ever state any reason why he made the statement that this tract of land contained 800 acres or more to you?" to which he replied: "He said the map showed a larger portion of it to No. 5 than it did to others. He showed me this was so." So it appears that Latham did not make any representation as the agent of Sanders that it was claimed or asserted by him that the iand contained 800 acres, but that it was a deduction of his own from his examination of the map which he exhibited to the appellant, and it seems to have convinced him of the fact also as he states: "He showed me this was so." It is true that the appellant states that the representations made to him by Latham were made by him as the representative of Sanders, and "as no representative of mine," but it is a little difficult to understand how the appellant could discriminate between what representations were made by Latham as agent for Sanders and what as a member of the firm.

After the partnership was entered into, Latham, acting on behalf of himself and the appellant, entered into an agreement with Sanders to purchase the land, and prepared a memorandum of agreement, dated August 25, 1913, which was subsequently signed by Sanders, in which it is