#### RICHARD GENTRY vs. ROBERT HAMILTON & AL.

Where a contract is made to convey several contiguous tracts of land, not particularly designating each by metes and bounds, but stating that they contain “ 1670 acres, more or less,” and the plaintiff, the vendee, states in his bill, that there is ascertained to be a deficiency of 355 acres, of the value of $1266 — Held that the words “ more or less,” used in the contract, cannot extend so far as to prevent the plaintiff’s demand for relief, the alleged mistake amounting to .so large a number of acres and of such value.

In a suit for specific performance of a contract for the sale of land, either party is, as a matter of right, entitled to have a reference upon the title. Except in a few excepted cases, on the coming in of the answer to an injunction bill, the court will not permit the plaintiff to file additional affidavits for the purpose of contradicting the answer.

The case of Leigh v. Crump, 1 Ired. Eq. 299, cited and approved.

Appeal from an interlocutory order made in Ashe Court of Equity, at Fall Term, 1844, his Honor Judge Battle presiding.

*377The plaintiff filed this bill, to obtain a decree for a specific execution of a contract, made in the year 1835, by Robert Hamilton, with him, for the sale of a tract of land lying in the county of Ashe, called the old fields of New River; also, for an injunction, restraining the defendants from proceeding at law on two of the bonds securing a part of tlie purchase money. The said tract of land is represented in the written contract set forth in the bill, as being “composed often contiguous small tracts of land, containing, each, a certain number of acres, and making in all, about 1670 acres more or less.” The price was $ 5000, payable by instalments ; and the plaintiff executed his bonds to Hamilton accordingly, and he took possession of the land, under the belief that he was to get title to 1670 acres or thereabouts. But the bill charges that the tract of land, that Hamilton had a title to, was materially less in quantity and value than he had bound himself in his bond to convey. Hamilton loft the five bonds given for the purchase money in the hands of McDowell, the other defendant, for collection, and he removed to a foreign State. Three of the bonds for $ 1000 each have been paid, and a part of the fourth bond. The plaintiff- further says, that the fact turns out to be, that Hamilton had not title to a considerable part of the land mentioned in the contract; some of the said lands are covered by better titles in third persons; and one of the ten small tracts, mentioned m the agreement, contains not more than one-half of the number of acres mentioned. The plaintiff says, that he informed McDowell of it; and also of his claim for a deduction in the purchase money. He says, that he is ready to pay the residue of the, purchase money, after allowing him the proper deductions for the deficiences in the quantity of land as aforesaid, and take a legal conveyance for what land Hamilton can make a good title for. In the year 1842, he caused a correct survey to be made of the said land, and instead of their being 1670 acres, it turned out that there were but 1315 acres; leaving a deficiency of 355 acres, which the plaintiff estimates to be of the value of $1266. He says that Hamilton assigned the two unpaid bonds to Mp*378Doweli, after they became due; and he received them, with. know^edge of his, the plaintiff’s equity; he has brought suit on them in Burke Superior Court of law. The bill then an injunction, staying the defendant’s proceedings on the said bonds at law, and also a decree that Hamilton may execute to him a legal conveyance under the direction of the Court.

The injunction then issued as prayed for by the bill. At the next term of the court, McDowell only answered the bill; and said, that he did not believe that there was any deficiency in the number of acres mentioned in the said contract of Hamilton with the plaintiff: for he understood and believed that, about the time the contract was made, a surveyor, by the name of Calloway, surveyed the said land, and that his survey showed that there was no deficiency in the number of acres, mentioned in the contract. He admitted, that the two bonds in question were endorsed to him after they were due.

At Spring Term 1843, the injunction was dissolved, as to all the moneys due on the said two bonds except, $ 1,266. At October Term 1844, the answer of Robert Hamilton was filed. He admits the contract as stated in the bond for title annexed to the bill, and also that the plaintiff has paid a part of the purchase money, as he has stated in his bill. He states, that he believes and has been informed, that there is not any deficiency in the number of acres mentioned in the contract; but that if there be any deficiency, it must consist in mountain land, almost valueless for cultivation, and not worth ten cents per acre. And he insists, that, if the plaintiff is entitled to a reduction in the price, it should be according to the value of the land in the place, where the deficiency may appear to be. He admits that he assigned the two bonds to McDowell to collect, and to pay a debt due by his testator Samuel P. Carson, to the bank, to which debt McDowell was surety.

At the same October Term 1844, the Court permitted the plaintiff to make an additional affidavit in support of the injunction, which was read, to resist the motion made by the defendants to dissolve the injunction, on the coming in of the *379answer of Hamilton. The motion to dissolve was overruled by the Court, and the injunction was continued, until the hearing of the cause. From this interlocutory decree, the defendants, by permission of the Court, appealed.

Dodge for the Plaintiff.

Boyden for the defendant.

Daniel J.

The plaintiff’s equity rests on mistake, and by no means on the ground of fraud. The number of acres' stated in the contract, although accompanied by the words “more or less,” and the round sum $ 5000 given by the purchaser, shows that the said numbers composed a principal part of the description of the land sold. The small tracts of land, which were intended to make up the aggregate amount of 1670 acres, are not described, in the contract, by metes and bounds. The plaintiff says, that there is a mistake in the description of the land of 355 acres, worth $ 1,266. The defendants in their answers state, that they believe that there is no mistake in the quantity of acres mentioned in the written contract; and they ground their belief upon an ex parte survey of the land made by one Calloway. It is seen, at once, that the master is the proper person, who, by a report, can settle this dispute. The master can have a correct survey made, when and where the parties can attend; he can call witnesses before him, and examine them as to all pertinent facts. The words, “more or less” used in the contract, cannot extend so far as to prevent the plaintiff’s demand, when the mistake amounts to so large a number of acres and of such a value as is stated in this bill. The case of Leigh v. Crump, 1 Iredell’s Eq. 299, is an authority for the plaintiff. Again, it is a general rule, in a suit for specific performance, in which the single question is, whether the vendor can make a good title, that the court at the present day directs a reference to the master to enquire into the title; and this, even without the consent of the other party, Brooke v. Clarke, 1 Swanst. 551.-— Shelton, 1 Ves. & Bea. 519. Atkinson on Titles 226, says, that either party to the suit is, as a matter of right, entitled to have a reference upon the title.

*380In a case like this, where the answers do not clear up the cannot expected that the plaintiff should be requiret^ t0 Part money, without first seeing that his title to 'the land was well secured. In this court the vendor has not a right to the price, if it be not seen that he is able and ready to convey the land sold.

Secondly, on the coming in of the answer of Hamilton, the court permitted the plaintiff to file an additional affidavit to repel the force of that answer. This was wrong. Except in a few excepted cases, though five hundred affidavits were filed, not only by the plaintiff, but by many witnesses, not one could be received for the purpose of contradicting the answer. Clapham v. White, 8 Ves. 35. Drewry on Injunction, 424. But we think, that there was enough in the original bill to uphold the injunction to the hearing, notwithstanding the answers.

Per Curiam, Ordered that , a certificate issue accordingly.