The opinion
BRAsnsrojsr, President,
{concurring)-.
EXCESS.
Take the case of a deed conveying' a tract of land either not specifying, or simply specifying, quantity; without any qualifying words affecting the quantity, there being no fraud. Shall the grantor have either pay or rescission on the ground of excess in quantity?
Such a deed is a sale in gross, that ;is, one of hazard or risk as to quantity. Crislip v. Cain, 19 W. Va. 438 ; Depue v. Sergent, 21 W. Va. 326 ; Hansford v. Coal Co., 22 W. Va. 70 ; Pratt v. Bowman, 37 W. Va. 715 . The statement of quantity, in such a deed, is descriptive of the tract, not a covenant or warranty of quantity. 4 Kent 466; Caldwell v. Craig, 21 Grat. 132. To allow pay for excess or rescind would deny the essential character of the deed given it by law, that of hazard, the law would contradict itself. It would, in one breath, say that the deed is one of hazard, and in the next breath sajr, that it is one of warranty of quantity; for how can either pay or rescission be given unless there is warranty or covenant of quantity? Furthermore, to allow such pay or rescission would deny the legal character of the deed contrary to the old rule that a contract in writing shall not be contradicted, altered or varied by oral evidence. The law stamps such a deed as one in gross. You allow evidence *127 to contradict this. You allow evidence to prove mistake as to quantity, when the deed, as construed by law, says that the grantor was not mistaken, but took the risk as to quantity; that he conveyed the tract, whether more or less in quantity, for a given sum. The law makes the deed have one effect; oral evidence makes it have another. Depue v. Ser gent, 21 W. Va. 326 , is cited to show that this cannot be done in such case by oral evidence. If the grantor intended to make quantity of the essence of the contract, he would have made it a conveyance by the acre, or inserted a clause for compensation for excess; but he made a sale in gross. Where there is deficiency, and the grantor has stated in the deed that the tract contains a certain quantity, that is a different case, under our decisions, from excess. Under those decisions it is because, and only because, of that statement of quantity that deduction from purchase money is made for deficiency. But as to excess, that reason does not exist, since the grantee has made no statement of quantity. In the case of claim for deficiency, it is sometimes, only sometimes, granted because of frcmd in the grantor in making such statement; but' there is no such fraud imputable to the grantee, no such basis for decree against him on account of excess. Judge GrEEEN mentions this in Depue v. Sergent, supra, and the clear jurist, Judge Roane, said in Jolliffe v. Hite, 1 Call. p. 312, “with regard to the case of excess, it may not follow, of course, that when there is abatement for deficiency there should be payment for the excess.” For deficiency in our cases relief is granted for legal fraud. If you regard the statement of quantity a warranty (you cannot), while the vendee could get relief for loss, the vendor could not for excess. There is difference between excess and deficiency, whether you regard relief as based on fraud or warranty. But the argument is made that though no fraud is chargeable to the grantee, there is mutual mistake, and that calls for relief. I respond that the cases say that compensation for excess or abatement cannot be made on the theory of mistake, because that would fly in the face of the deed, which speaks a sale in gross. Judge G-reeN says so in Crislip v. Cain, 19 W. Va. 512 and point 10 in syllabus. Hillard on Vendors, 328 says: “The general principle is laid down, that the vendor of land, as containing a certain quantity, more or less, when he knows *128 from the title-deeds or otherwise that it contains a much less quantity, is in equity bound to make good the difference. But, where a contract has been consummated without any fraud, misrepresentation or concealment as to the quantity, the Court will not inquire whether there has been a mistake upon that point. Thus if the vendor sells, and the vendee buys, a tract of land, for so many acres, more or less, and it turns out, upon a survey, that there is less than the estimated quantity, the buyer shall not be relieved in equity. So it is said, the cases in which equity interferes, where the quantity of the land exceeds or falls short of that specified in the deed or contract, or those in which the sale has been made by the acre or foot; or where there has been fraud or wilful misrepresentation on the part of the party against whom relief is sought.” I repeat that pay for excess or loss cannot stand on the idea of mistake, but only on fraud, actual or legal. But it is said that while it is true that money compensation cannot be made because of mistake, yet rescission of the deed can be. It is strange to say that you cannot decree compensation for mistake, because the deed is a sale in gross, yet you can take the vendee’s land from him for that mistake. Do you not by rescission deny the legal effect of the sale as one of hazard just as much as you would by decree for money compensation? Do you not thus ignore that legal effect of the deed as one in gross or of hazard? You would, in reason, equally ignore the law of the deed in either case. “Whether the case be one of excess or deficiency, the mistake is not in the substance of the contract, but in relation to the very risk in the contemplation of parties.” In 21 Grat. p. 131, Caldwell v. Craig. For the position that in case of such a deed there can be neither compensation nor rescission for excess, in absence of fraud, I cite Jolliffe v. Hite, 1 Call. 262; Tucker v. Cocke, 2 Rand. 51 , 66, where Judge GkeeN says that quantity in such case is not of the substance of the contract; that the substance is the tract; that if the land is sold as on Paint Creek, whereas it is elsewhere, that is a mutual mistake as to^ the “substance” — and there will be rescission; but that mistake in quantity is not in “substance,” but covered by the hazard. Pendleton v. Stewart, 5 Call. 1; Keyton v. Brawf ords, 5 Leigh 39 , 48; Reed v. Patterson, 7 W. Va. 263 ; 2 Warvelle on Vendors, pp. 974, 976; Dart on Vendors, 304.. *129 I refer to 29 Am. & Eng. Ency. L. (2 Ed.) 635, saying' that excess in quantity “does not entitle him either to rescission, to reconveyance of excessive quantity, or to compensation.” See pages 625, 637. On p. 627 we find many cases cited for the text, “The theory on which relief is denied is, that the purchaser gets the specific land which he contracted to buy, and must be deemed to have assumed the risk of deficiency.” In Hardin v. Kelley, 89 Va. 333 , our holding is sustained. It says that where a tract is conveyed for a certain sum within certain bounds, stated to convey a certain quantity, there can be no recovery for excess.
But do our cases hold that in cases of excess there can be relief? They say there can be no money compensation decreed, unless the purchaser is willing to pay; but some say there may be rescission. I contend that Western M. & M. Co. v. Peytona, 8 W. Va. 406 , is obiter as to its recognition of right of rescission. It did not enter into the decree; the decree is not based on that; it did not even allow an amendment as to it. (Bouvier L. Diet., word “Dictum”.) The opinion shows that it was not intended to be decided. The same may be said of Hansford v. Coal Co., 22 W. Va. 70 . Certainly expressions in Crislip v. Cain, allowing rescission for excess, were obiter, it being a case of deficiency, not excess. As to Pratt v. Bowman, 37 W. Va. 715 , we were in error in holding a right to rescission for excess. We were misled by the cases just mentioned. Argument and re-argument have brought this matter of excess to close scrutiny in the present case. Those cases were squarely assailed and a demand made for reconsideration of them as regards this subject. I admit reluctance to depart from a former case— even one, and there is but one — ; but the law ought to be laid down right when it is to operate constantly in daily transactions in future. Shall we persevere in error when we believe it to be error, and it is challenged as error?
Is this ruling practically unjust? When quantity is given in deeds, who thinks of its being warranted? When that is designed .the sale is made by the acre. Judge Tucker said in Keytons v. Brawford, 5 Leigh, p. 48, as many of the books say: “I have looked upon such mention of quantity as, in general, matter- of description only, and not of itself as giving a character of a contract by the acre. I am satisfied *130 that such a thing is rarely dreamed of by those who execute deeds.” Much authority says that mere statement of quantity in a deed, in connection with boundary, is only description, not warranty of quantity. 4 Kent 466; Caldwell v. Craig, 21 Grat. 132; Wood v. Murphy, 47 Mo. App. 539 ; Jenkins v. Bolgiano, 53 Md. p. 420; 29 Am. & Eng. Ency. L. (2d Ed.) 628; Rogers Case, 76 Ala. 529 .
DEFICIENCY.
Though deficiency is not involved I will say that much authority in Virginia and elsewhere can be found denying compensation in case of such a deed as is involved in this case, because the sale is in gross. But we have numerous cases holding that in such cases there may be, under circumstances, compensation for deficiency, where the grantor assumes to represent in the deed the tract to contain a certain quantity. Crislip v. Cain, 19 W. Va. 438 ; Anderson v. Snyder, 21 Id. 632; Hansford v. Coal Co., 22 Id. 70; Sine v. Fox, 33 Id. 521; Depue v. Sergent, 21 W. Va. 326 . They hold that where a deed states a tract to contain, a fixed quantity, if that was relied on and induced the purchase, it is ground of compensation for deficiency, as the statement of quantity, whether made in ignorance of the true quantity or not, is, in law, fraud. Such is not the case as to excess. Where a deed makes no statement of quantity, but conveys the tract, there is no compensation. Allen v. Shriver, 81 Va. 174 .
I confess that I do not see that Crislip v. Cain , is sound in holding that where a deed merely states quantity it prima facie gives right either to abatement or rescission for deficiency, in absence of actual fraud. When once the law puts upon the deed the seal of a sale in gross, the statement of quantity is merely further description of the tract, not a warranty of quantity, and therefore cannot be the ground of relief. The law does treat that statement of quantity in that light. See citations above. It is conceded in the Oris-lip Case that mutual mistake of quantity is not the ground of relief, but that the statement of quantity is because of a legal fraud. How can this be when the deed is a sale in gross? By oral evidence you deny the writing. But there is a difference between excess and deficiency where the deed states *131 quantity. There is but one case holding that excess gives right to relief; but many following Crislip v. Cain . I would yield to them only on the principle of sta/re decisis. They are numerous, but they are not cases of excess. It does seem to me that this matter turns on two questions: 1. Is the deed one of sale in gross? 2. Is the statement of quantity in it warranty of quantity? The law says that such a deed speaks a sale in gross, and I assert that the mere statement of quantity is not of the substance, not a statement of a fact as on the grantor’s personal knowledge, not made to induce the grantee to purchase, is not a warranty. When the parties intend quantity of the substance — when one states the quantity as within his knowledge, and the other buys on its faith, they say it is a sale by the acre, or in some cases to make quantity of the substance of the contract; but the incidental statement of quantity in description is not prima facie of the substance — the tract is the substance. The fact that the parties have not sold by the acre or otherwise made quantity important shows that they did not intend the statement of quantity as a warranty. ( 19 W. Va. 480, 481 .) If the party knows the statement is false, this is actual fraud; but if he states quantity, not knowing it to be false, or does not say it is true on his own knowledge, when he knows the statement is not true, relief is given for deficiency, though the deed is in gross, because of legal fraud; when he says he knows the quantity is correct, you relieve for warranty; but when neither is the case, there is no rescission, because the deed is in gross.
It seems not necessary to say that I have not been speaking of sales by the acre. I desire to be understood as speaking of deeds passing legal title, not of executory contracts or what equity would do in a suit for specific performance.