The facts of this case are fully set out in the decree of his Honor, the presiding Judge, which together with the exceptions will be reported. The pivotal question in this case in whether the testimony showed *Page 269 that the deficiency in the number of acres was in the swamp lands, which were valued at one dollar per acre. The deficiency amounted to sixty-two acres.
In his decree, the presiding Judge uses this language: "Plaintiff's attorneys say * * * that the deficiency was in swamp land, and that the abatement should be for the value of the swamp land. A sufficient answer for this is that the defendant purchased one hundred and sixty acres of land. He got less than one hundred acres. It is impossible to say what character of land is missing. It is not in evidence at all." The appellant excepted to this finding. The presiding Judge, however, overlooked that portion of Col. D.J. Knotts' testimony relative to this fact, in which he says: "In the survey, the shortage of the land fell of in the swamp. The swamp did not contain all the land we thought it did. I told Mr. Busby that if he got 100 acres more of that land, it would not add anything to the value of his place. This is contained in some of the letters I wrote Mr. Busby and he has introduced." This witness also testified that he was satisfied the acreage of the uplands was all right. The foregoing testimony was introduced without objection. There are several reasons in addition to this testimony which tend to show that the defendant is only entitled to reduce the amount of the plaintiff's recovery by deducting from the sum claimed $62 (the value of the swamp land which was deficient), together with interest thereon from the time the deed was delivered.
In the first place, it is at least doubtful whether the lands were sold by the acre or by metes and bounds.
In the second place, the words, "more or less," were inserted in the receipt for part of the purchase money at the instance of the plaintiff. Then, again, when the deficiency in the land was discovered and the proposition was made to the defendant to reconvey the lands upon the return to him of the $500, which he had paid to the plaintiff, together with interest thereon, he took no steps to bring about such result. I am satisfied that the land is worth $800, it would, therefore, *Page 270 be inequitable to allow the defendant to become the unencumbered owner thereof without being required to pay more than $500 for it.
I am further satisfied that the defendant saw all except the swamp land before he completed the transaction relating to the land, and that he was not misled as to the boundaries thereof.
These, in brief, are the reasons for my dissent.