William Lawrence v. Theophilus Simonton, 13 Tex. 220

Hemphill, Ch. J. This was a suit on two promissory notes given for a part of the purchase money of a tract of four hundred acres of land. The defendant’s first answer was demurred out; he amended, and demurrer was also sustained to his amended answer; judgment went against him and he brought up the cause on writ of error. The only assignment worthy of notice is the alleged error in sustaining exceptions to the answers of the defendant.

Taking the amended answer as setting forth the best case which the defendant could make for himself, it appears that as a partial defence against the note, he sets up a deficiency in the quantity agreed to be sold him to the amount of twenty acres. In answer to this, it may well be said that (as appears from the title bond) the land was not sold by the acre, or as amounting to a precise and definite quantity, but as containing, by estimation, four hundred acres.

The rule is, that where the lands are mentioned in a conveyance as containing so many acres “ more or less,” or so many acres by estimation, if there be a small portion more than the quantity, the vendor cannot recover it, and if there be a small portion less, the vendee cannot obtain compensation for the deficiency. (Sugden, 292; Dart. 308; 6 Ves.

Jun. 208.) Where the contract rests in fieri, if the quantity be considerably less than stated, the purchaser will be entitled to an abatement in price, though the agreement contains the words !< more or less,” or, by “ estimation.” The cases do not appear to have defined the precise effect of the words 66 more.or less” or by “ estimation ;” they have-been held to cover a deficiency of five out of forty-one acres, but not of one hundred out of three hundred and forty-nine acres. (1 Ves. & B. 375; 2 Russel, 570.) The defendant does not aver that the plaintiff knew the true quantity of the land, and that he fraudulently represented the amount to be four hundred acres, when he knew it to be less; (Sugden, 293;) nor does he make any averments which would require the contract to be construed as if the words tc by estimation” had not been inserted, and we are of opinion "that the deficiency in the quantity is not sufficient to authorize any abatement in the price, and that there was no error on this-ground in sustaining the plaintiff’s demurrer.

The other ground assumed in the answer consists of obscure and evasive hints or statements in relation to there being some difficulties in the way of the plaintiffs making a title, and that these difficulties were known to the plaintiff, and that he promised and undertook to remove them, and that it is in his power to do so, but that he fails to fulfil his promise, that he has always been ready and has offered to pay if the plaintiff would make the deed according to the contract, which plaintiff has refused to do; and he prays for judgment compelling the plaintiff to procure a good and sufficient deed in fee simple-for the said land.

The averments do not amount to an allegation of a refusal to make title or conveyance. If they did, the exception should have been overruled, and the plaintiff required to deposit the title in Court to be delivered to the defendant on payment of the sum adjudged. They intimate that there is some outstanding title, or that the full title is not in the plaintiff, but they do not state or describe this outstanding title, or the defector “ difficulty ” in the title of the plaintiff.

The averments are too obscure and ambiguous; they do not set forth facts with such a certainty as to show that there does exist a valid objection to the title of the plaintiff", and that the defendant was not precluded from taking advantage of such defect of title. We are of opinion that there was no error in the judgment and that it be affirmed. Judgment affirmed.