#### A. L. PATRICK v. W. C. WORTHINGTON and Wife, MARY WORTHINGTON; T. R. WORTHINGTON and Wife, SUE WORTHINGTON, W. I. BISSETT, Administrator of W. W. DAWSON; and CECIL COBB, Administrator of G. T. GARDNER.

(Filed 14 October, 1931.)

Vendor and Purchaser B b — Held grantee could recover for number of acres tract conveyed failed to equal number stipulated in deed.

Where an area comprising a number of acres of land is conveyed by metes and bounds in a deed and sold at a fixed price per acre, tbe bargain and sale is not in gross and where the vendee has paid the purchase price for a greater number of acres than the number conveyed he may recover the value of the shortage at the fixed price per acre.

Appeal by plaintiff from Grady, J., at February Term, 1931, of LeNOie.

No error.

F. M. Wooten and Wallace & White for appellant.

Dawson & J ones and Whitaher & Allen for appellees.

Rouse & Rouse for W. I. Bissett, administrator.

Pee Cttbiam.

On 30 September, 1919, the plaintiff and his wife executed an agreement or covenant to convey to W. W. Dawson and G. T. Gardner, or to such persons as they should direct, a tract of land containing 361 acres, in consideration of $72,200, of which $18,150 was paid in cash and $54,150 was to be paid in ten equal installments. Dawson and Gardner had the land subdivided and requested the plaintiff to execute a deed for one of the subdivisions to W. O. Worthington and T. R. Worthington in fee. On 9 October, 1919, the plaintiff and his wife made this deed, reciting 240 acres as the quantity conveyed.

*484Tbe plaintiff was to sell tbe land to Dawson and Gardner at $200 an aere, and they were to receive from tbe "Worthingtons $250 an acre. Tbe consideration for tbe 240-acre tract was $60,000. Tbe purchasers (Worthingtons) paid $40,000 and executed to Dawson and Gardner ten notes for $2,000 each and a mortgage on tbe land to secure tbe payment. Tbe notes were signed by W. C. Worthington, Mary Worthington, T. R. Worthington, and Sue Worthington, and were endorsed by Dawson and Gardner and transferred to tbe plaintiff.

Tbe defendants contend that tbe plaintiff sold tbe land at $200 an acre, that there was a shortage of 3 1/16 acres, and that tbey are entitled to a rebate of $612.50 from tbe note in suit and to a judgment for $153.10 against tbe personal representatives of Dawson and Gardner.

Tbe verdict established these facts: Tbe Worthingtons signed tbe note and mortgage to Dawson and Gardner and tbey transferred tbe papers to tbe plaintiff; tbe plaintiff is not a bolder in due course; tbe plaintiff bargained tbe land to Dawson and Gardner at tbe rate of $200 an acre and tbey bargained it to tbe Worthingtons at tbe rate of $250 an acre; there was a shortage of 3 1/16 acres; and tbe defense is not barred by tbe statute of limitations.

Upon these findings and tbe amount awarded in response to tbe last issue, it was adjudged that tbe plaintiff recover of all tbe defendants $2,000 with interest from 1 December, 1925, interest payable annually, less $612.50, with interest from 1 January, 1920, interest payable annually, and that tbe Worthingtons recover of tbe personal representatives of Dawson and Cobb $153.10 with interest from 1 January, 1920.

We have examined all tbe exceptions taken by tbe appellant and have found no error. Tbe main controversy turned on tbe question whether tbe purchasers were entitled to relief for shortage in tbe number of acres conveyed. Evidence for tbe defendants tended to show that tbe sale was not in tbe gross but by tbe acre. In fact tbe plaintiff testified that be was to have $200 an acre for whatever tbe Phillips survey called for, and that it called for 361 acres. But tbe specific controversy related to tbe alleged shortage in tbe 240-acre tract, and tbe jury found from tbe evidence that this tract was bargained by tbe plaintiff at tbe price of $200 an acre. Tbe distinction between a purchase in tbe gross and by tbe acre is pointed out in Turner v. Vann, 171 N. C., 127, and Henofer v. Realty Co., 178 N. C., 584.

No error.