66

Kreiter v. Bomberger.

is for a round sum, and the quantity is qualified by the words more or less," the deficiency should be a reasonable one, as in the old case of Day v. Finn, Owen, 133, cited in 9 Vin. Abr. 343, pl. 10, where it is held that sive plus sive minus shall be intended of a reasonable quantity. Certainly very much ought to depend upon the extent of the purchase and the value of the land. This, however, is not the case which we have before us, and we do not intend to express an opinion upon it.

The second class of cases is, however, the more usual one: namely, where the contract has been carried out by the execution of a deed and of bonds or other securities for the purchase-money. The question has there arisen upon actions to recover on these securities. In such cases the law is well settled, that where the contract was for a round sum, or even by the acre, the vendee will not be allowed for a deficiency in the quantity, where the number of acres in the deed is stated with the qualification more or less, unless there be fraud, or, as is said, the difference is so very great as to show an evident mistake. The rule was stated by Mr. Justice SERGEANT, in Galbraith v. Galbraith, 6 Watts, 112, in these words: "An examination of the numerous decided cases in our own reports will, I think, show that in the common case between vendor and vendee, in a conveyance of a tract of land bounded by adjoining owners, and described as containing so many acres, be the same more or less, at a certain price per acre, where there is no stipulation for admeasurement, nor any mala fides proved, redress cannot, after the bargain is closed, be given to either party for a surplus or deficiency subsequently appearing." This rule was adopted and confirmed in Hershey v. Keemborts, 6 Barr, 128; Chief Justice GIBSON adding: "The vendor is answerable in respect of the quantity only for mala fides." There are indeed many dicta that the difference in the quantity may be so great as to be evidence itself of fraud or deceit, or of great misapprehension between the parties, and then equity will relieve. Though no case is to be found of an actual application of this doctrine in favor of the vendee, or to show what must be the extent of the difference to raise the presumption, yet perhaps it may be fairly conceded, that in an action to enforce the payment of purchase-money, a deduction under such circumstances will be allowed. Such is the weight of extra-judicial opinions. Boar v. McCormick, 1 S. & R. 166; Glen v. Glen, 4 id.

Kreiter v. Bomberger.

488; Bailey v. Snyder, 13 id. 160; McDowell v. Cooper, 14 id. 296; Ashcom v. Smith, 2 Penn. 219; Frederick v. Campbeli, 13 S. & R. 136; Haggerty v. Fagan, 2 Penn. 533; Coughenour's Adm'rs v. Stauft, 27 P. F. Smith, 191.

The third class of cases to which the one now under consideration belongs, is where the contract is fully executed and the purchase-money paid. We are of the opinion that in this class the transaction cannot be ripped up, without actual proof of fraud or mutual mistake. Upon this question the greatness of the difference may be evidence, but not sufficient of itself. There must be other circumstances. Cases of this class very rarely arise. I can find but one instance in our books. That is the case of Large v. Pennsylvania, 6 S. & R. 488. There the difference was very great in reference to the extent of the premises. The quantity conveyed was described as 24 acres, and without the words " more or less;" the actual quantity was, 1 acre, 148 perches. Yet the vendee was denied relief; Chief Justice TILGHMAN remarking: "It is the boundaries to which the grantee must look; he has a right to all the land within them. The quantity is matter of calculation, and, be it more or less, passes. There is no express covenant that the quantity in this case shall amount to 2 acres. Nor is there any implied covenant, because the quantity is introduced not by way of covenant, but of description." So in Smith v. Evans, 6 Binn. 102, which was a proceeding on a mortgage, to recover unpaid purchase-money, whereupon a conveyance of 991 acres, more or less, the quantity fell short 88 acres, 48 perches, and the vendee was refused relief; Mr. Justice YEATES, in his dissenting opinion, says: "And yet I freely confess that if, under this state of facts, the whole money had been paid, and the transaction closed, I know of no legal mode whereby any of the money could be recovered back." This distinction between cases where the purchase-money has been fully paid and the demand is to recover back part, and cases where the vendor is proceeding upon his securities to enforce full payment, is well sustained by the general principles upon which courts of equity proceed. They will not rescind a contract fully executed without clear proof of fraud or mutual mistake in an essential point. They proceed upon different principles in the enforcement of contracts.

It follows that there was error committed by the learned judge below in admitting and submitting to the jury the deed from VOL. XXII.-95

Miller's Estate.

Kreiter to Bomberger as in itself sufficient evidence of fraud or mistake, if they should think the difference very great. If it was sufficient of itself, it was a question of law for the court and not of fact for the jury. There was no evidence besides the deed to show fraud in Kreiter or mutual mistake of the parties. The vendee was well acquainted with the lot, within the boundaries described in the deed. That was the lot he bought. There was no representation by the vendor of the quantity of acres it contained. The description in the deed was most probably copied from the prior conveyances to him recited in it. Both parties made and concluded the bargain with their eyes open. The vendee threw out no anchor to windward as to quantity as he did as to title by his covenant of general warranty. If within any period short of six years from the time of the transaction, a contract of purchase and sale, fully executed by delivery of the deed and payment of the purchasemoney, can be overhauled and materially changed, very disastrous consequences will ensue, not only to vendors called upon to refund what they had every reason to believe was their own and had a right to deal with accordingly, but to the public at large, by sowing the seeds of an abundant crop of lawsuits.

Judgment reversed and venire facias de novo awarded.

▲, the maker, and B, the indorser, of a promissory note, made assignments for the benefit of their respective creditors. Each estate paid a dividend. Held, that the holder of the note was entitled to a dividend upon the whole amount of the note from each estate.

A

PPEAL from a decree of the court below confirming the report of the auditor appointed to audit the account of the assignee for the benefit of creditors of Amos Miller. The facts of the case appear in the opinion of the court.

John Hays, for appellants.

Miller's Estate.

WOODWARD, J. Amos Miller made a voluntary assignment for the benefit of creditors on the 24th of October, 1873. On distribution by an auditor of the balance in the hands of the assignee, Bair and Shenk, the appellants, presented a claim founded on a note for $3,000, drawn by John Miller, and indorsed by Amos Miller, which had become due and been protested for non-payment on the 1st of April, 1873. It appeared that after making the note, and before the assignment of Amos Miller was executed, an assignment for the benefit of his creditors had been made by John Miller. It appeared also that in a distribution of John Miller's estate, the appellants had received a dividend on their claim of $399.60. The question presented was, whether the appellants were entitled to a dividend out of Amos Miller's estate on the entire claim, embracing the principal and interest of the note, or on the balance remaining after deducting the dividend received from the assigned estate of John Miller. The auditor allowed a dividend only on the balance, and his report was confirmed by the Common Pleas.

In deciding the question, the auditor and the court below rested on the authority of The Bank of Pennsylvania v. McCalmont, 4 Rawle, 307; and Perit v. Pittfield, 5 id. 166. In the first of these cases it was held that the rule for making a dividend where more than one of the persons liable to the payment of a note or bill have failed, and made voluntary assignments of their property for the purpose of paying their respective debts and liabilities, is to take the amount actually due upon the bill or note at the times, respectively, at which the first dividend is declared of each fund so assigned. The rule thus established was confessedly outside of any precedent, and was founded on what was assumed to be local practice. Judge KENNEDY said: "The rule possibly has been derived from that which seems to have been adopted in England in cases of bankruptcy, which is to take the amount of the debt actually due at the time of the creditor's first proving it against the fund. The only difference between the two cases seems to be that in the case of bankruptcy the amount of the debt due at the time of the creditors first proving it, is taken as the sum for which a dividend shall be allowed, but in the cases of voluntary assignments here, the amount due at the time of declaring the first dividend of each fund, respectively, is taken as the sum on which the dividend is to be allowed. I do not see any sufficient reason why this rule, which has already been adopted in practice here, should

Miller's Estate.

not also be adopted by the courts." In Perit v. Pittfield, the principle of The Bank of Pennsylvania v. McCalmont was followed without discussion.

In later cases, doctrines have been settled entirely inconsistent with the principle of these two precedents. Morris v. Olwine, 10 Harris, 441, decided that a creditor by bond and notes secured by mortgage may have recourse, in the first instance, to the personal property of the debtor, which had been assigned for the benefit of creditors without preference; and that, though after an award by an auditor in his favor to a pro rata share of the personal estate, such a creditor, by direction of the court, proceeded upon the mortgage and recovered the greater proportion of his claims, he was still entitled to the pro rata dividend on his whole claim, and was not limited to a pro rata share on his claim as reduced. A creditor who has a lien upon a particular portion of an assigned estate, and out of a sale of part of which he realizes a portion of his claim, is entitled to his pro rata dividend on the whole claim out of the general assets in the hands of the assignee to an amount sufficient to pay the balance of his demand in full, although a portion of the estate on which he holds the lien remains unsold. Keim's Appeal, 3 Casey, 42. A debtor executed a general assignment of all his estate in trust for the benefit of his creditors; subsequently, the assignor became entitled to a legacy, which was attached and recovered by one of the creditors for whose benefit the assignment was made. It was held that such creditor was, nevertheless, entitled to a dividend out of the assigned estate, on the whole amount of his claim at the time of the execution of the assignment. Miller's Appeal, 11 Casey, 481. It was said in that case, that “a creditor is entitled to a dividend under an assignment, not merely as a creditor, but as an equitable owner of the assigned estate; and the extent of his ownership is fixed by the amount of the claim when the assignment is made."

Patten's Appeal, 9 Wright, 151, was perhaps a still stronger case. In the argument, the authority of The Bank of Pennsylvania v. McCalmont, 4 Rawle, 307, and Perit v. Pittfield, 5 id. 166, was there pressed upon the court in opposition to the doctrine announced in Miller's Appeal. It was ruled that the detention by vendors of goods sold on the insolvency and assignment for the benefit of creditors by the vendees, did not rescind the contract of sale; that the vendors were entitled to pro rata distribution out of the