Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20435 October 23, 1923
LUIS ASIAIN, plaintiff-appellant,
vs.
EN!AMIN !ALAN"ONI, defendant-appellee.
Arroyo and Gurrea for appellant.
Francisco Soriano for appellee.

MALCOLM, J.:
Luis Asiain, the plaintiff-appellant in this case, is the owner of the hacienda nown as !Maria!
situated in the "unicipalit# of La Carlota, Province of $ccidental Ne%ros, containin% about &'(
hectares. Ben)a"in *alandoni, the defendant-appellee, is the owner of another hacienda ad)oinin% of
Asiain.
Asiain and *alandoni happenin% to "eet no one of the da#s of Ma#, &+,', Asiain said to
*alandoni that he was willin% to sell a portion of his hacienda for the su" of P--,'''. .ith a wave of
his hand, Asiain indicated the tract of land in /uestion, affir"in% that it contained between ,- and 0'
hectares, and that the crop of su%ar cane then planted would produce not less than ,,''' piculs of
su%ar. But *alandoni, re"ainin% doubtful as to the e1tent of the land and as to the a"ount of crop on
it, Asiain wrote *alandoni the letter which follows2
34A. MAR5A May, 26, 1920.
MR. BEN*AM5N *ALAN4$N5.
4EAR BEN*AM5N2 5 a" in receipt of #our letter and with re%ard to #our state"ent that parcel
does not contain ,& hectares 5 do not believe. 5 bet an#thin% that part onl# which is planted with cane
contains "ore than ,' hectares, 5 bet , a%ainst &.
5f #ou a%ree, 5 would be that #ou pa# onl# one-half. 5 a" not a surve#or, but these da#s 5 had
the pleasure to surve# the land and 5 now "ore or less its area. 1awph!l.net
3ere we are not to deceive each other. 5f #ou lie that parcel and if #ou want to bu# it 5 will
%ive #ou %ood propositions. 5 don6t now where and how the# learned that 5 was sellin% the hacienda
and the# "ade "e a %ood offer, but as we do not want to part but with that parcel, hence "#
propositions are the followin%, in view of the ti"e that has elapsed and the pro%ress of the cane.
5 assure 7aseuro8 that there are ,,''' piculs and sell on that basis, provided that the cane is
"illed in due ti"e. 5n case the su%ar does not a"ount to ,,''' piculs, 5 will pa# in su%ar all such
a"ount as will be necessar# to co"plete the ,,''', but if after "illin% the cane, as 5 sa#, there is an
e1cess over ,,''' piculs, all the e1cess shall be "ine. 9o that if #ou lie, 5 "ae the sale for the
sa"e price that we taled about and the sa"e conditions, not a di"e "ore or less.
9ince #ou left it did rain, so the !aloci"an! 7Philippine herb8 of :ui"ib "ust die on the field,
whether of the hacienda or of the !la%atio.! ;ou have a contract for a lu"p su". Now the# have
be%un to plow the old plantations within the boundar# so"e da#s a%o and #ou "a# rest and throw
one 7unintelli%ible8, answer #es or no, so that 5 "a# decide.
;our friend L<59 A95A5N
9o"eti"e later, in *ul# of the sa"e #ear, Asiain and *alandoni havin% "et at 5loilo, the#
prepared and si%ned the "e"orandu"-a%ree"ent which follows2
Purchase of land of Mr. Luis Asiain and his wife Maria Cadenas, b# B. *alandoni,
containin% ,- hectares "ore or less of land bounded b# propert# of the purchaser, with its
correspondin% crop, esti"ated at ,,''' piculs, the total value of which is -- thousand. =he
price is to be paid b# pa#in% 0' thousand at the si%nin% of the docu"ent, and ,- thousand
within one #ear, with interest at the rate of &' per cent.
Mr. Asiain is under obli%ation to tae care of all the plantation until the plantin% is
finished and in case the crop e1ceeds ,,''' piculs, all the e1cess will belon% to Mr. Asiain.
=he ad)acent landowner on the north and the west is the vendor hi"self, on the east,
B. *alandoni, and on the south, B. *alandoni and the widow of Abdon >errer.
=he purchaser is under obli%ation to answer for all the ri%hts and obli%ations of the
land with the central of 5nchausti.
After the plantin% of the cane is co"pletel# finished, Mr. Asiain shall vacate the parcel
sold to the purchaser.
=he e1penses for tain% care of said plantation until the plantin% is co"pletel# finished
will be for the account of the vendor Mr. Asiain.
79%d.8 !L<59 A95A5N
!BEN*AM5N *ALAN4$N5!
4urin% all of the period of ne%otiations, *alandoni re"ained a doubtin% =ho"as and was
continuall# su%%estin% that, in his opinion, the a"ount of the land and of the crop was overesti"ated.
Asiain on his part alwa#s %ave assurances in confor"it# with the letter which he had written intended
to convince *alandoni that the latter was in error in his opinion. As a result, the parties e1ecuted the
a%ree"ent which follows2
=his docu"ent, e1ecuted in the cit# of 5loilo, Province of 5loilo, Philippine 5slands, b#
and between Messrs. Luis Asiain and Ben)a"in *alandoni, of a%e and residents of the
"unicipalit# of La Carlota, Province of $ccidental Ne%ros, Philippine 5slands.
.itnesseth2
7&8 =hat Luis Asiain does hereb# pro"ise and bind hi"self to sell to Ben)a"in
*alandoni a parcel of land the hacienda !Maria! of the aforesaid Luis Asiain, situated
in the "unicipalit# of La Carlota, Province of $ccidental Ne%ros, P.5.
7,8 =hat Ben)a"in *alandoni does hereb# pro"ise and bind hi"self to purchase the
aforesaid parcel of land in the su" P--,''' upon certain conditions specified in a
"e"orandu" si%ned b# the parties which is in the hands of Attorne#s Padilla ?
=re@as.
708 =hat upon the si%nin% of this a%ree"ent, the vendor shall have the ri%ht to collect
fro" the purchaser part of the price %ivin% receipts thereof si%ned b# said vendor.
7A8 =hat in case the vendor should withdraw fro" the contract and desist fro"
si%nin% the docu"ent of final sale, the purchaser shall have the ri%ht to collect fro"
said vendor all such a"ount as "a# have been advanced on account of this sale,
with an inde"nit# of P&-,''' as penalt#.
7-8 5n case it is the purchaser who should withdraw fro" the contract of sale, then he
will lose all such a"ount as "a# have been paid in advance on account of this
transaction.
5n witness whereof, we have hereunto affi1ed our si%natures, at 5loilo, 5loilo, this &,th
da# of *ul#, &+,'.
79%d8 !L<59 A95A5N
!BEN*AM5N *ALAN4$N5
9i%ned in the presence of2
79%d.8 !EN:RAC5$ PA45LLA
!P.=. =REBA9!
$nce in possession of the land, *alandoni did two thin%s. 3e had the su%ar cane %round in La
Carlota 9u%ar Central with the result that it %ave and output of PC'' piculs and ,0 cates of
centrifu%al su%ar. .hen opportunit# offered, he secured the certificate of title of Asiain and produced
a surve#or to surve# the land. Accordin% to his surve#, the parcel in /uestion contained an area of
&&C hectares, -A ares, and ,, centiares.
$f the purchase price of P--,''', *alandoni had paid P0',''', leavin% a balance unpaid of
P,-,'''. =o recover the su" of P,-,''' fro" *alandoni or to obtain the certificate of title and the
rent fro" hi", action was be%un b# Asiain in the Court of >irst 5nstance of $ccidental Ne%ros. =o the
co"plaint, an answer and a counter-co"plaint were interposed b# the defendant, b# which it was
ased that he be absolved fro" the co"plaint, that the contract be annulled, both parties to return
whatever the# had received, and that he recover fro" the plaintiff the su" of P0,('' annuall# as
da"a%es. 5n a well-reasoned decision, the 3onorable Eduardo :utierreD 4avid, *ud%e of >irst
5nstance, declared null the docu"ent of purchase and its related "e"orandu"E absolved the
defendant fro" the pa#"ent of P,-,'''E ordered the plaintiff to return to the defendant the su" of
P0',''' with le%al interest fro" *ul# &,, &+,'E ordered the defendant to turn over to the plaintiff the
tract of land and the certificate of title No. A(C, and absolved the plaintiff fro" the counter-co"plaint,
F all without special findin% as to the costs. 5t is fro" said )ud%"ent that the plaintiff has appealed.
=he true facts need not %ive us pause. =he# are as found b# the trial )ud%e and as praticall#
a%reed to b# the parties. 5t is onl# necessar# to eep in "ind that apparentl# there was alwa#s a
difference of opinion between Asiain and *alandoni as to the area of the tract and as to the crop of
su%ar caneE that the a%ree"ent between the" "entions land containin% ,- hectares "ore or less,
%ivin% the boundaries, and a crop esti"ated and in one sense warranted at ,,''' piculs, and that in
realit# the land contained onl# a little "ore than &C hectares and produced a crop of onl# about C''
piculs. =he le%al conse/uences arisin% fro" these facts are "ore difficult of deter"ination.
$ur Civil Code contains provisions which "ust be taen into consideration. Codal articles
&,(-, &,((, and &,(+ relate to consent %iven b# reason of error and deceit. =he# provide the rules
which shall avoid contracts for these and other reasons. But the provisions of the Civil Code "ost
directl# pertinent are found in articles &A(+, &AG', and &AG&.
=he first two "entioned articles, &A(+ and &AG', are not applicable because of the proviso
relatin% to the sale bein% "ade at a certain price for each unit of "easure or nu"ber F which is not
our case. =he facts see" to fall within article &AG&. 5t first para%raph provides that in case of the sale
of real estate for a lu"p su" and not at the rate of specified price of each unit or "easure, there
shall be no increase or decrease of the price even if the area be found to be "ore or less than that
stated in the contract. =he ne1t para%raph provides that the sa"e rule is applicable when two or
"ore estates are sold for a sin%le price. =hen co"es the followin%2 !. . . but, if in addition to a
state"ent of the boundaries, which is indispensable in ever# conve#ance of real estate, the area
estate should be desi%nated in the contract, the vendor shall be obli%ed to deliver all that is included
within such boundaries, even should it e1ceed the area specified in the contractE and, should he not
be able to do so, he shall suffer a reduction of the price in proportion to what is lacin% of the area,
unless the contract !e annulled !y reason of the "endee#s refusal to accept anythin other than that
which was stipulated.!
A stud# of the 9panish co""entators discloses that the "eanin% of article &AG& is not clear as
it "i%ht be, and that the# are not unani"ous in their views. Manresa %ives e"phasis to the intention
of the parties and the option on the part of the purchaser to rescind the contract. =o /uote fro"
Manresa2
=he rule in the latter case is found in the second para%raph of article &AG&, with the
e1ception of the first clause which refers to the for"er h#pothesis. =his rule "a# be
for"ulated as follows2 .hether the case is one of sale of realt# for a lu"p su" or of two or
"ore for a sin%le price which is also a lu"p su" and, conse/uentl#, not at the rate of
specified price for each unit of "easure or nu"ber, the vendor shall be bound to deliver all
that is within the boundaries stated althou%h it "a# e1ceed the area or nu"ber e1pressed in
the contractE in case he cannot deliver it, the purchaser shall have the ri%ht to reduce the
price proportionatel# to what is lacin% of the area or nu"ber, or rescind the contract at his
option.
1 1 1 1 1 1 1 1 1
=he "anner in which the "atter covered b# this article was distributed in its two
para%raphs contributes to "ain% it difficult to understand. =he rule "i%ht have been clearl#
stated had the first clause of the second para%raph been included in the first para%raph, the
latter to end with the words, !=he sa"e rule shall appl# when two or "ore estates are sold
for a sin%le price.! And if b# constitutin% an independent para%raph, with the rest of the
second para%raph, it were "ade to appear "ore e1pressl# that the rule of the second
para%raph thus drawn referred to all the cases of para%raph one, as we have e1pounded,
na"el#, to the case of a sale of one sin%le estate and that of two or "ore for one sin%le
price, the precept would have been clearer.
5n our opinion, this would have better answered what we dee" to be indubitable
intention of the le%islator.
9o"e e"inent co""entators construe the last part of article &AG& in a different wa#.
=o the" the phrase !and should he not be able to do so! as applied to the vendor, does not
"ean as apparentl# it does !should he not be able to deliver all that is included within the
boundaries stated,! but this other thin%, na"el#, that if b# reason of the fact that a less area
is included within the boundaries than that e1pressed in the contract, it is not possible for the
vendor to co"pl# therewith accordin% to its literal sense, he "ust suffer either the effects of
the nullit# of the contract or a reduction of the price proportionatel# to what "a# be lacin% of
the area or nu"ber. 5t is added as a %round for this solution that if the vendor fulfills the
obli%ation, as stated in the article, b# deliverin% what is not included within the boundaries,
there can never b# an# case of proportionate reduction of the price on account of shorta%e of
an area, because he does not %ive less who delivers all that he bound hi"self to.
Accordin% to this opinion, which we believe erroneous, if within the boundaries of the
propert# sold, there is included "ore than area than that e1pressed in the title deeds,
nothin% can be clai"ed b# the vendor who losses the value of that e1cess, but if there is less
area, then he loses also, because either the price is reduced or the contract is annulled. =his
theor# would be ano"alous in case of sale of properties in bul, but, above all, would do
%ross in)ustice which the le%islator never intended.
=here is no such thin%. 9o lon% as the vendor can deliver, and for that reason, delivers
all the land included within the boundaries assi%ned to the propert#, there can be no clai"
whatsoever either on his part, althou%h the area "a# be found to be "uch %reater than what
was e1pressed, nor on the part of the purchaser althou%h what area "a# be in realit# "uch
s"aller. But as he sold ever#thin% within the boundaries and this is all the purchaser has
paid, or "ust pa#, for whether "uch or little, if afterwards, it is found that he cannot deliver
all, because, for instance, a part, a buildin%, a valle#, various pieces of land, a %len etc., are
not his, there is no sale of a specified thin%, there is lon%er a sale of the ob)ect a%reed upon,
and the solution %iven b# the article is then )ust and lo%ical2 Either the contract is annulled or
the price is reduced proportionatel#.! 7&' $o%entarious al $odio $i"il, p. &-G.8
=he principle is deduced fro" the Code, that if land shall be sold within boundaries with an
e1pression of the area and if the area is %rossl# deficient, the vendee has an option, either to have
the price reduced proportionatel# or to as for the rescission of the contract. =he rule of the civil law
is "ore favorable to the purchaser than is the co""on law. 5t %ives the e1cess to the purchaser
without co"pensation to the vendor, where the propert# is sold b# a specific description followed b#
the "ention of the /uantit# or "easure, but allows the purchaser either to secure a deduction fro"
the price in case a deficienc# or to annul the contract.
=he decision of this court which %ave "ost direct consideration to article &AG& of the Civil
Code, now chiefl# relied upon b# the appellant, is found in 5rureta :o#ena "s. =a"buntin% 7H&+',I, &
Phil., A+'8. =he rule announced in the s#llabus is this2 !An a%ree"ent to purchase a certain specified
lot of land at a certain price is obli%ator# and enforceable re%ardless of the fact that its area is less
than that "entioned in the contract.! =aen literall#, this rule would lead to the result desired b# the
appellant. But the s#llabus naturall# "ust be understood in relation what is found in the decision
itselfE and the fact was that the tract of land was "entioned as bein% located at No. ,' Calle 9an
*ose, Er"ita, Manila. =he private contract e1pressed a specific thin% as the ob)ect of the contract
and specified a certain price. =here was no state"ent in the docu"ent of the superficial area and no
hint in the record that either or both parties were "isled. =he facts, therefore, are different than those
before us and the doctrine in the 5rureta :o#ena "s. =a"buntin% case, can well be followed and
distin%uished.
A co"parative stud# of the A"erican Authorities throws considerable li%ht on the situation. 5n
volu"e 0+ C#c., pa%e &,-', under the sub)ect !Jendor and Purchaser,! is found the followin%2
5f, in a contract of sale the /uantit# of the realt# to be conve#ed is indicated b# a unit of
area, as b# the acre, a "ared e1cess or deficienc# in the /uantit# stipulated for is a %round
for avoidin% the contract. 9ince it is ver# difficult, if not i"possible, to ascertain the /ualit# of
a tract with perfect accurac#, a sli%ht e1cess or deficienc# does not affect the validit# of the
contract.
.here, however, the contract is not for the sale of a specific /uantit# of land, but for
the sale of particular tract, or desi%nated lot or parcel, b# na"e or description, for a su" in
%ross, and the transaction is !ona fide, a "utual "istae as to /uantit#, but not as to
boundaries, will not %enerall# entitle the purchaser to co"pensation, and is not %round for
rescission. But it is well settled that a purchaser of land, when it is sold in %ross, or with the
description, !"ore or less! or !about,! does not thereb# ipso facto tae all ris of /uantit# in
the tract. 5f the difference between the real and the represented /uantit# is ver# %reat, both
parties act obviousl# under a "istae which it is the dut# of a court of e/uit# to correct. And
relief will be %ranted when the "istae is so "aterial if the truth had been nown to the
parties the sale would not have been "ade.
Jolu"e ,G of the Rulin% Case Law, pa%es 0-A, A0A, A0(, states what follows2
A "utual "istae as to the /uantit# of the land sold "a# afford %round for e/uitable
relief. As has been said, if, throu%h %ross and palpable "istae, "ore or less land should be
conve#ed than was in the conte"plation of the seller to part with or the purchaser to receive,
the in)ured part# would be entitled to relief in lie "anner as he would be for an in)ur#
produced b# a si"ilar cause in a contract of an# other species. And when it is evident that
there has been a %ross "istae s to /uantit#, and the co"plainin% part# has not been %uilt#
of an# fraud or culpable ne%li%ence, nor has he otherwise i"paired the e/uit# resultin% fro"
the "istae, he "a# be entitled to relief fro" the technical or le%al effect of his contract,
whether it be e1ecuted or onl# e1ecutor#. 5t has also been held that where there is a ver#
%reat diference between the actual and the esti"ated /uantit# of acres of land sold in %ross,
relief "a# be %ranted on the %round of %ross "istae. Relief, however, will not be %ranted as
%eneral rule where it appears that the parties intended a contract of haDard, as where the
sale is a sale in %ross and not b# acrea%e or /uantit# as a basis for the priceE and it has been
held that a "istae on the part of the vendor of a town lot sold b# description as to nu"ber
on the plat, as to its area or di"ensions, inducin% a sale thereof at s"aller price than he
would have ased had he been co%niDant of its siDe, not in an# wa# occasioned or
concealed b# conduct of the purchaser, constitutes no %round for the rescission of the
contract. =he apparent conflict and discrepancies in the ad)udicated cases involvin%
"istaes as to /uantit# arise not fro" a denial of or a failure to reco%niDe the %eneral
principle, but fro" the difficult# of its practical application in particular cases in deter"inin%
the /uestions whether the contract was done of haDard as to /uantit# or not and whether the
variance is unreasonable. =he relative e1tent of the surplus or deficit cannot furnish, per se,
an infallible criterion in each case for its deter"ination, but each case "ust be considered
with reference not onl# to that but its other peculiar circu"stances. =he conduct of the
parties, the value, e1tent, and localit# of the land, the date of the contract, the price, and
other na"eless circu"stances, are alwa#s i"portant, and %enerall# decisive. 5n other words,
each case "ust depend on its own peculiar circu"stances and surroundin%s.
=he rule den#in% relief in case of a deficit or an e1cess is fre/uentl# applied in e/uit#
as well as at law, but a court of e/uit# will not interfere on account of either a surplus or a
deficienc# where it is clear that the parties intend a contract of haDard, and it is said that
althou%h this %eneral rule "a# not carr# into effect the real intention of the parties it is
calculated to prevent liti%ation. >ro" an earl# date, courts of e/uit# under their %eneral
)urisdiction to %rant relief on the %round of "istae have in case of "istae in the esti"ation
of the acrea%e in tract sold and conve#ed interposed their aid to %rant relief to the vendor
where there was a lar%e surplus over the esti"ated acrea%e, and to the purchaser where
there was lar%e deficit. >or the purpose of deter"inin% whether relief shall be %ranted the
courts have divided the cases into two %eneral classes2 7&8 .here the sale is of a specific
/uantit# which is usuall# deno"inated a sale b# the acreE 7,8 where the sale is usuall# called
a sale in %ross. . . .
9ales in %ross for the purpose of e/uitable relief "a# be divided into various
subordinate classifications2 7&8 9ales strictl# and essentiall# b# the tract, without reference in
the ne%otiation or in the consideration to an# desi%nated or esti"ated /uantit# of acresE 7,8
sales of the lie ind, in which, thou%h a supposed /uantit# b# esti"ation is "entioned or
referred to in the contract, the reference was "ade onl# for the purpose of description, and
under such circu"stances or in such a "anner as to show that the parties intended to ris
the contin%enc# of /uantit#, whatever it "i%ht be, or how "uch so ever it "i%ht e1ceed or fall
short of that which was "entioned in the contractE 708 sales in which it is e"ident, fro%
e&traneous circu%stances of localit#, value, price, ti"e, and the conduct and con"ersations
of the parties, that they did not conte%plate or intend to ris' %ore than the usual rates of
e&cess or deficit in si%ilar cases, or than such as %iht reasona!ly !e calculated on as
within the rane of ordinary continencyE 7A8 sales which, thou%h technicall# dee"ed and
deno"inated sales in %ross, are in fact sales b# the acre, and so understood b# the parties.
Contracts belon%in% to either of the two first "entioned classes, whether e1ecuted or
e1ecutor#, should not be "odified b# the chancellor when there has been no fraud. But in
sales of either the third of fourth 'ind, an unreasona!le surplus or deficit %ay entitle the
in(ured party to e)uita!le relief, unless he has, !y his conduct, wai"ed or forfeited his
e)uity. . . .
=he "e"orandu"-a%ree"ent between Asiain and *alandoni contains the phrase or !"ore or
less.! 5t is the %eneral view that this phrase or others of lie i"port, added to a state"ent of /uantit#,
can onl# be considered as coverin% inconsiderable or s"all differences one wa# or the other, and do
not in the"selves deter"ine the character of the sale as one in %ross or b# the acre. =he use of this
phrase in desi%natin% /uantit# covers onl# a reasonable e1cess or deficienc#. 9uch words "a#
indeed relieve fro" e1actness but not fro" %ross deficienc#.
=he apparent conflict and discrepancies in the ad)udicated cases arise not fro" a denial of or
a failure to reco%niDe the %eneral principles. =hese principles, as co""onl# a%reed to, "a# be
su""ariDed as follows2 A vendee of land when it is sold in %ross or with the description !"ore or
less! does not thereb# ipso facto tae all ris of /uantit# in the land. =he use of !"ore or less! or
si"ilar words in desi%natin% /uantit# covers onl# a reasonable e1cess or deficienc#. Mutual "istae
of the contractin% parties to sale in re%ard to the sub)ect-"atter of the sale which is so "aterial as to
%o to the essence of the contract, is a %round for relief and rescission. 5t has even been held that
when the parties saw the pre"ises and new the boundaries it cannot prevent relief when there was
"utual %ross "istae as to /uantit#. 5nnocent and "utual "istae alone are sufficient %rounds for
rescission. 7Bi%ha" "s. Madison H&C++I, AG L. R. A., ,(G8 =he difficult# co"es fro" the application of
the principles in particular cases.
A practical de"onstration of what has )ust been said is disclosed b# the notes in volu"e ,G of
Rulin% Case Law, pa%e A0+. 5n the followin% cases, relief was denied2 Lawson "s. >lo#d, &,A <. 9.,
&'CE C 9. Ct., A'+E 0& <. 9. 7L. ed.8, 0AG 7esti"ated acrea%e about &,''' acresE shorta%e 0(C acres8E
>rederic "s. ;oun%blood, &+ Ala., (C'E -A A". 4ec., ,'+ 7esti"ated acrea%e -'' acres "ore or
lessE shorta%e 0+ acres8E *ones "s. Plater, , :ill 7Md.8, &,-E A& A". 4ec., A'C 7stated acrea%e ++C
acresE shorta%e -- acres8E >renche "s. 9tate, -& N. *. E/., (,AE ,G Atl., &A'E A' A. 9. R., -AC 7stated
acrea%e &+--+CK&'' be the sa"e "ore or lessE shorta%e &-0GK&''8E >aure "s. Martin, G N. ;., ,&'E
-G A". 4ec., -&- 7stated acrea%e +( acres "ore or lessE deficit &' acres8E 9"ith "s. Evans, ( Bin.
7Pa.8, &',E ( A". 4ec., A0( 7shorta%e of CC acres in tract conve#ed as containin% ++& &KA acres
"ore or less8E *ollife "s. 3ite, & Call 7Ja.8, 0'&E & A". 4ec., -&+ 7stated acrea%e -GC acres "ore or
lessE shorta%e (( acres8E Pendleton "s. 9tewart, - Call 7Ja.8, &E, A". 4ec., -C0 7stated acrea%e
&,&'' acres "ore or lessE shorta%e &(' acres8E Nelson "s. Matthews, , 3en. ? M. 7Ja.8, &(AE 0 A".
4ec., (,' 7stated acrea%e C-, acres "ore or lessE shorta%e of C acres8. 5n the followin% cases relief
was %ranted2 3arrel "s. 3ill, &+ Ar., &',E (C A". 4ec., ,', 7stated acrea%e &C' acres "ore or lessE
deficit CA acres8E 9olin%er "s. *ewett, ,- 5nd., AG+E CG A". 4ec., 0G, 7stated acrea%e &,& acres
"ore or lessE deficit 0( acres8E 3a#s "s. 3a#s, &,( 5nd., +,E ,- N.E., (''E && L. R. A., 0G( 7stated
acrea%e ,C.A acres "ore or lessE deficit - acres8E Balti"ore, etc., Land 9oc. "s. 9"ith, -A Md., &CGE
0+ A". Rep., 0GA 7stated acrea%e about (- acresE deficit 0' to 0- acres8E Newton "s. =olles, (( N.
3., &0(E &+ Atl., &'+,E A+ A. 9. R., -+0E + L. R. A., -' 7stated acrea%e about ,'' acresE deficit (-
acres8E Couse "s. Bo#les, A N. *. E/., ,&,E 0C A". 4ec., ,&, 7stated acrea%e &0- acres "ore or
lessE deficit 0' acres8 Belnap "s. 9eale#, &A N. ;., &A0E (G A". 4ec., &,' 7stated acrea%e C acres
"ore or lessE deficit A acres8E Paine "s. <pton, CG N.;., 0,GE A& A". Rep., 0G& 7stated acrea%e
!about ,,, acres be the sa"e "ore or lessE! shorta%e &C acres8E Bi%ha" "s. Madison, &'0 =enn.,
0-CE -, 9. .., &'GAE AG L. R. A., ,(G 7stated acrea%e ,- acres "ore or lessE deficit &, acres8E 9"ith
"s. >l#, ,A =e1., 0A-E G( A". 4ec., &'+ 7stated acrea%e -'' acres "ore or lessE deficit &&- acres8E
=riplett "s. Allen, ,( :rat. 7Ja.8, G,&E ,& A". 4ec., 0,' 7stated acrea%e &(( acres "ore or lessE
deficit &' acres8E Epes "s. 9aunders, &'+ Ja., ++E (0 9. E., A,CE &0, A. 9. R., +'A 7stated acrea%e
G- acres "ore or lessE deficit ,, acres8E McCo"b "s. :ileson, &&' Ja., A'(E (( 9. E., GGE &0- A. 9.
R., +AA 7stated acrea%e ,A- acres "ore or lessE deficit &' acres8.
A case often cited and which on e1a"ination is found to contain a "ost e1haustive review of
the decisions, is that of Belnap "s. 9eale# 7H&C-(I, &A N.;. &A0E (G A". 4ec.,, &,'8 =he facts were2
!<pon the "erits of the controvers# the case is /uite si"ple in its facts. =he land in /uestion is
situated in the cit# of Brool#nE and bein% valuable onl# for division and sale as cit# lots, its valuable
onl# for division and sale as cit# lots, its value is precisel# in proportion to the /uantit#. 5n
consideration of the %ross su" of fourteen thousand dollars, of which one thousand dollars was paid
down, the defendant a%reed to conve# the land to the plaintiff, describin% it as !the pre"ises
conve#ed to hi" b# 9a"uel =. Roberts,! b# deed dated about nine "onths previous. =he deed of
Roberts contained a definite description b# "eters and bounds, and stated the /uantit# to be *a!out
nine acres, %ore or less,* e1ceptin% a certain parcel of one acre and si1 perches. =he /uantit# in fact
is onl# about half as "uch as the deed asserted. =he plaintiff, in a%reein% to purchase the tract at
the su" na"ed, acted under a "istae which affected the price nearl# one half, and the )ud%e has
found that the seller was "istaen also. . . . =he *ud%e has found that the actual /uantit# was
substantiall# and essentiall# less than the plaintiff supposed he was purchasin%E and althou%h the
findin% does not so state in ter"s, there can be no difficult#, 5 thin, in affir"in% that if the true
/uantit# had been nown, the contract would not have been "ade. =he a%ree"ent has never been
consu""ated b# a conve#ance. =hese are the onl# essential facts in the case.! =he learned *ud%e
re"ared2 !=he counsel for the defendant is obli%ed to contend, and he does not contend, that "ere
"istae as to the /uantit# of land affords no %round of relief a%ainst a contract in the ter"s of the
present one, however serious such "istae "a# be, and althou%h we can readil# see the contract
would never have been "ade if the /uantit# had been "ade nown. =he convenience of such a rule
has been insisted on, and in the denial of )ustice it certainl# has the "erit of si"plicit#. 5f the doctrine
is true as broadl# as stated, then there is one class of contracts to which the settled "a1i" that
e/uit# will relieve a%ainst "istae can have no application. <pon a careful e1a"ination of the cases
cited, as well as upon principle, "# conclusion is, that a%ree"ents of this description are not
necessaril# proof a%ainst the "a1i"s which appl# to all others.! =hen follows a review of the cases
not alone of the state of New ;or and other states in the A"erica <nion but of En%land as well. =he
rule was announced that e/uit# will rescind a contract for the sale of land for "utual "istae as to
the /uantit# of land which the boundaries %iven in the contract contained, where the deficienc# is
"aterial. !More or less,! used in the contract in connection with the state"ent of the /uantit#, will not
prevent the %rantin% of such relief.
Coordinatin% "ore closel# the law and the facts in the instant case, we reach the followin%
conclusions2 =his was not a contract of haDard. 5t was a sale in %ross in which there was a "utual
"istae as to the /uantit# of land sold and as to the a"ount of the standin% crop. =he "istae of fact
as disclosed not alone b# the ter"s of the contract but b# the attendant circu"stances, which it is
proper to consider in order to throw li%ht upon the intention of the parties, is, as it is so"eti"es
e1pressed, the efficient cause of the concoction. =he "istae with reference to the sub)ect-"atter of
the contract is such that, at the option of the purchaser, it is rescindable. .ithout such "istae the
a%ree"ent would not have been "ade and since this is true, the a%ree"ent is inoperative and void.
5t is not e1actl# a case of over reachin% on the plaintiff6s part, or of "isrepresentation and deception,
or of fraud, but is "ore nearl# ain to a bilateral "istae for which relief should be %ranted. 9pecific
perfor"ance of the contract can therefore not be allowed at the instance of the vendor.
=he ulti"ate result is to put the parties bac in e1actl# their respective positions before the#
beca"e involved in the ne%otiations and before acco"plish"ent of the a%ree"ent. =his was the
decision of the trial )ud%e and we thin that decision confor"s to the facts, the law, and the principles
of e/uit#.
*ud%"ent is affir"ed, without pre)udice to the ri%ht of the plaintiff to establish in this action in
the lower court the a"ount of the rent of the land pursuant to the ter"s of the co"plaint durin% the
ti"e the land was in the possession of the defendant, and to obtain )ud%"ent a%ainst the defendant
for that a"ount, with costs a%ainst the appellant. 9o ordered.
+ohnson, A"ance,a, -illa%or and .o%ualde/, ++., concur.
+ohns, +., concurs in the result.
Street, +., dissents.