*180After advisement, the following opinions were delivered:
Mr. Justice Co wen observed, that fraud was not alleged in the bill; and if any thing, this was a case of mistake. The proof tends to show a mistake; but it is not sufficient/ to authorize the rescindment of the contract. The maxim, potior est conditio defendentis applies, and, unless a mistake \ is clearly shown, there is no relief. To create doubt is not enough to entitle the party complaining of a mistake in a contract to be heard by a court of chancery. The vendor when desired to warrant the quantity or number of feet contained in the tract, declined to do so, and yet the purchaser accepted the deed in the terms in which it had been i drawn up. Under these circumstances he virtually abandoned his claim of a deed for a specific quantity of land. ^The vendor had represented the width of the tract on Water-street to be 136 feet; but when he subsequently refused to execute a deed, specifying the quantity of feet, he cannot be held answerable as for a false representation. The allegations in the bill are not sustained, and the decree of the Chancellor ought to be affirmed.
By Senator Veb.planck.An agreement for the purchase and sale of vacant lots in the city of Buffalo, is consummated by the delivery and acceptance of a deed of conveyance and a mortgage for the purchase money. In both these instruments, the land conveyed is described by its external boundary lines, without mention of their length, or of the area they enclose, and with the addition of the words, “ be the same more or less.” In these suits, the complainant seeks to rescind the sale, of to obtain other equitable relief, upon the alleged ground of a material deficiency (about one-sixth,) in the extent of the land thus conveyed, from the area understood by the buyer, and represented by the seller before the conveyance.
In the answer and proofs, this deficiency is denied to exist; and the Chancellor assents to this view of the facts, *181affirming mainly, though not exclusively, upon that ground the decision of the vice-chancellor, who laid little stress upon that branch of the controversy. It is maintained by the respondents, and the Chancellor decides, that according to a correct location of the boundaries of the lots and the adjoining lands, with the neighboring street or terrace, (such as the parties claiming under the original grant are entitled to,) the supposed deficiency will disappear, and the area conveyed will agree with the alleged representation and the understanding of the parties. This conclusion seemed to me probable, though that opinion was much staggered by the argument of the appellant’s counsel on some points of the proofs of boundary and location. Were however the conclusion much more certain than it seems to my mind, I should be reluctant to rest the decision of these causes upon it, as the case now stands before the court; nor should I wish to examine that question any farther, judicially, than to see whether the complainant has made out a clear and admitted, or at least incontestible case of deficiency. But the fixing the precise location and adjusting the several metes and bounds by our decision, would be to pass indirectly upon the rights of other owners of adjacent lands, who are not before us: since such a location as would give the full extent to the land in question, would also unsettle the lines of other property. We may have but a partial view of the whole case. On a trial at law against or between any of those adjacent owners, other evidence might throw a different light upon the facts now presented. We do not indeed directly pass upon those rights, nor would our adjudication here, preclude farther litigation, nor entitle the vendee to possession against his encroaching neighbors. Yet we may go far to settle the law in future litigations. I should therefore have preferred that if this were of necessity the turning point of the controversy, these other owners should have been made parties. I allow that they are not necessary parties, and that as they are not immediately interested in the event, *182there is weighty authority against compelling those who have only subsequent or contingent interests to become parties to a litigation. Demonhay v. Newenham, 2 Schoales & Le Froy 208, and the cases there cited by Lord Redes dale. Yet this is an anomalous case, and might authorize the exercise of the large judicial discretion vested in chancery. But at present we are only required to consider this as a question of judicial propriety and expediency. On that ground, I wish to prevent our decision here, on the present state of the evidence, from bearing injuriously in any way upon the rights or interests of persons not before us; since in my view, the circumstances of the case are not such as to require us to pass even indirectly upon the disputed location, and our judgment may be placed upon reasons of much broader application, not less appropriate to the controversy, and of far more importance to the public to be well settled and clearly understood.
Let us briefly consider what reasons would make it just or proper to open a contract for the sale of land, when perfected by the deliberate form of a legal conveyance. The subject is of frequent applicability, and all the chief reasons that have ever been considered sufficient to this purpose in a court of equity, have been insisted upon in the argument before this court, as conclusive in favor of the relief prayed for.
It is the wise and salutary rule of our common law that whenever a bargain has been reduced to writing, this is conclusive as to the parties, and is not to be contradicted by parol evidence. It was considered that there is no small risk that casual talk, hasty or thoughtless declarations, propositions tendered in the course of a negotiation but not finally agreed upon, might be misunderstood or misinterpreted by careless and inattentive hearers, or misrepresented by artifice or fraud. But the deliberate formality of a written instrument affords usually the highest proof of the real terms of the final contract whether executed or executory. If this be true as to a simple article *183of agreement, or memorandum of a sale, then a contract of sale of land, ratified and attested by deed formally executed, delivered and received, stands on a still more solid foundation. In law, it is not to be contradicted, and when equity applies its peculiar powers to modify or rescind such an instrument, it is still to be regarded as the very highest presumptive evidence of the real contract, and throws upon the party contesting it, the burden of direct and positive proof of the facts relied upon to invalidate the instrument.
Equity interferes to rescind or correct such deeds by its moral jurisdiction, (in Lord Eldon’s phrase,) upon proof of fraud or of total mistake. The several grounds of such relief have been repeatedly stated and adjudicated: as by Lord Chancellor Hardwicke, in the Earl of Chesterfield v. Jansen, 1 Ves. R. 150. They may, without following the very decision and letter, be conveniently reduced to these: 1. Actual deceit, false representation, direct or indirect, made with knowledge of the falsehood: the dolus malus of the civil law. Such fraud, it has been held, must be shown by external facts and circumstances, or else made manifest on the face of the transaction, by the nature and subject of the bargain itself; “being such as no man in his senses, and not under delusion, would make on the one hand, and no honest or fair man could accept, on the other.” 2. The presumptive fraud arising from the peculiar relation of the parties. The wise jealousy of the law, decrees that the trustee or assignee must not use the advantages afforded by his situation, to buy or sell for his own benefit; that in bargains between parent and child, the father commits a legal fraud if he turns the confidence of his child to his own profit; that the same principle, either as a rule of policy or of presumptive evidence, holds good as to all advantages gained by means -¿cessary confidence, growing immediately out of the legal relations of the parties, as attorney and client, guardian and ward. Fox v. Maccreath, 2 Brown C. C. 400. Green v. Winter, *1841 Johns. Ch. R. 27. Gibson v. Jeyes, 6 Ves. jr. 270. Huguenin v. Baseley, 14 Fesey 273. In this last case, j-be celebrated argument of Romily lays down the law with almost judicial authority. In all such cases, the inequality of the parties, and the confidence necessarily reposed by the one in the other, constitute any advantage gained by the stronger at the expense of the weaker, a conclusive presumptive evidence of designed fraud. 3. Mutual mistake, unaccompanied by fraud, or without any proof of it, as when it can be made clear that the mistake or ignorance rendered the written instrument materially variant from that in the intention of the parties. Thus in Bingham v. Bingham, 1 Vesey 126, relief was granted where the complainant had, through ignorance, bought his own estate. Similar relief has been granted by chancery, where it was proved in opposition to a formal written instrument C£ that this was not the instrument intended to be signed;” that there was some error or omission that made the writing vary essentially from the contemplated bargain. u There is no doubt,” said Lord Hardwicke, in a case of this sort, “ that this defence ought to be received, and it is quite equal whether it is insisted upon as a mistake or a fraud.” Jaynes v. Stalhan, 4 Atk. 397. This court applied the same doctrine in the case of Roosevelt v. Fulton’s Ex’rs. 2 Cowen 129, where there was a total failure of the chief and probably sole inducement .to the contract, as represented by the seller and relied upon by the buyer, in good faith on both sides.
The Courts have applied these rules more freely, when the fraud or mistake was insisted upon as a defence against a specific performance, than when the object was to set aside an executed contract; but the principles of relief are mainly the same, and the apparent divergence of authority may, I believe, be traced in a great part, to the higher and more conclusive evidence required to overthrow a deliberate and formal instrument, acquiesced in for a time, than *185is needed to authorize relief against a bargain or executory contract. ■
One of the rules found in the books is, that the interference of equity to vacate or alter an executed instrument, is permitted only when it is manifest that had the true state of facts been known such an instrument, on such terms, would not have been executed. To my understanding, the language of the rale still requires farther limitation to express with precision the principle and the spirit of the decisions. If that were the sole limitation, many of the fairest sales might be opened. A distant tract of wild land is sold, neither party knowing its precise character. If it should turn out that there was a valuable mine there, this would present a fact which, if known to the vendor, would have prevented the sale at that price; or the particular acres conveyed, though part of a tract of known fertility, might fall upon an inferior soil. This, too, if known, would have prevented the purchase. To my understanding, the authority of chancery to relieve against executed instruments arises from, and corresponds with its “ moral jurisdiction,” and is simply the right and consequent duty to protect against the legal consequences of an instrument duly executed, yet in substance and effect such as the party did not mean, or understand himself to execute; whether he was induced to do so by positive mirepresentation or indirect deceit, or by misplaced confidence in his natural or legal guardian, or agent, or by plain mistake. “ There is no doubt,” said Lord Hardwicke, “ that the court has power to relieve in cases of plain mistake in contracts in writing; so that if reduced to writing contrary to the intent of the parties, that may be rectified.” Hinghen v. London Ass. 1 Ves. 807. That is the principle; and the rule to be deduced, I take to be, that each party to an agreement is bound to execute it according to the terms on which he knew the other expected him to fulfil it; whilst relief is to be granted against an executed conveyance only when its terms vary essentially from the terms understood *186as the conditions of the bargain, not as more probable inducements, of the existence of which the risk was assumed. Positive misrepresentation or trick, or breach of confidence, can render circumstances, which are commonly mere inducements to a bargain, its express or understood condition. The good or bad quality of land, is presumptively one of these risks thus assumed, where no specific representation is made; whilst the quantity of the area of land conveyed by description and boundary, might or might not, according to evidence, be an understood condition, or merely an expectation, of the result of which the buyer assumes the risk. Let us apply these conclusions to the evidence in the cross suits under review.
It can scarcely need authority to prove that the evidence necessary to sustain such an alleged essential variance between the contract intended and that executed, should be strong and convincing. The rational presumption will always be, that the deeds were the conclusive agreements; but the authorities go beyond this. To invalidate such an instrument, said Lord Chancellor Thurlow, “a mistake should be proved as much to the satisfaction of the court as if it were admitted.” 1 Brown C. C. 94. In another analogous case, the same able Chancellor demanded “ irrefragable proof,” and his more illustrious predecessor, Lord Hardwicke, insisted that there must be “ proper proof, and the strongest proof possible;” and in all these requirements of the highest evidence, our own Chancellor Kent has concurred. Gillespie v. Moore, 2 Johns. Ch. R. 591. If. the error be alleged to have been caused by fraud, it is again equally.clear that the deceit must be proved against a strong presumption of innocence, in every case except those of special relations of parties, excepted by the strict policy of the law. If the cases before us had fully made out the representations charged, so as to depend wholly upon the fact of the deficiency and its materiality, it must be admitted that the proof is very far short of that unquestionable, or “ iriefragable proof which leaves the fact as *187undoubted as if it were admitted.” For the reasons alreády stated, I wish to express no positive conclusion as to the facts of location and consequent deficiency. It is sufficient. to say, that however the balance of evidence may incline, that question of deficiency is one of argument and inference, and of contradictory locations and surveys. It is not unquestionably ascertained.
Assuming, however, that this deficiency has been established by the last survey, and moreover, shown to be material in extent or value, do the proofs otherwise show conclusively, or even with very high probability, the existence of any of those just and proper causes for the interference of equity against the legal effect of a regularly executed deed and mortgage 1
I. Is there convincing proof of actual deceit, by misrepresentation or fraudulent concealment of facts 1 Clearly not. The whole case shows that the respondents had sufficient reason to believe, from the deeds under which they held, that the fronts and area of the lots were as they appeared on the map, even if we consider that the numbers were placed there by their direction before the sale. The lots were unoccupied and vacant; the sellers had never had a new survey to ascertain the precise extent of their property; whilst their own paper title, together with the conveyances under which the adjoining land is held, from the same original source of title with their own, might naturally lead to the opinion expressed as to the extent. The false representation charged, is not a positive one, but a matter of inference. The property itself, and the evidence of title, during the negotiation with the appellant, were open to the examination and survey of his son, who was his agent and adviser in the transaction. The refusal to insert any specification of extent in the deed, was open and direct; nor is there anything in that idea incompatible with the vendors’ belief that their land was of the alleged extent, for which probable reasons were assigned. It is common enough, in sales of unoccupied lands, for the own*188ers to have strong confidence in their legal right to a given extent and boundary, whilst they are yet aware that there may ke Some boundary question against which they would r£fuse to warrant. The disputed lines of some of our great land patents in this state, have often furnished evidence of such a state of things. But, in brief: the' burden of proof of knowledge of the deficiency, as well as of erroneous representation, is upon the complainant. In .order to set aside an executed and received deed, and to impeach his own mortgage on account of legal fraud, he must prove that knowledge and the fraudulent representation conclusively; and this has not been done.
II. It has been suggested in the argument, that though the relation in which the parties stood had somewhat of that confidential character which equity regards as affording conclusive presumption of fraud, where an advantage is gained by its means. This, as has been stated, is a strict rule of judicial policy, intended to prevent the trustee, agent or other person standing in the same confidential relation, from being tempted to betray his duty. It is also a rule of evidence established from the necessity of the case, because, (as Lord Eldon has remarked,) without some such general presumption, when all the evidence is of necessity in the hands or the breast of the trustee, it would be impossible for courts to get at the facts necessary to enable them to relieve the ward, the orphan, or the client, against any iniquity, however monstrous. But this rule of prudent suspicion, must of necessity have narrow limits, and can have no application to a case where the whole relationship consists in the complainant’s son, a man of mature age and accustomed to dealing in land; being a law student with one of the vendors. Such an extension of the rule as would give any weight to this consideration, would expose half the sales and agreements made among ordinary acquaintance to vexatious litigation.
III. Mnally: has there been any error touching the material conditions of the sale, the risk of which has not been *189either directly or impliedly assumed by the vendee 1 Where the land conveyed is accessible to the purchaser’s examination and survey, without any difficulty, and he neither examines and judges for himself, nor insists upon such description and warranty in his deed, as may protect him, the rational presumption is, that the buyer takes upon himself the risk he does not guard against, either deliberately or else by gross neglect of his own interests. It is for the complainant to rebut that presumption by strong and positive testimony; “ By proper proof and the strongest proof possible,” say the decisions, “ as much to the satisfaction of the court as if it were admitted.” Without insisting upon such unquestionable and conclusive evidence, it will still be found that the presumption has not been rebutted by any thing amounting to a probability of the contrary. I agree with the Vice-Chancellor, that the suggestions made by the complainant’s son and adviser, that a certain number of feet should be expressed in the deed, the positive refusal of Bennett the vendor, who conducted the business, to do so, assigning at the same time his reason for thinking that there was no deficiency; the continued objection by the purchaser, his conference with his son, and final acceptance of the deed and execution of a corresponding mortgage, both instruments being filled up by the son, are facts showing irresistibly that the risk as to the precise quantity of the land constituted one of the elements of the final bargain. Marvin’s attention having been distinctly called to that point, he, in his acceptance of the deed, and execution and delivery of the mortgage took the chance of deficiency, just as he will be entitled to the advantage of any excess, should that turn out to be the fact in consequence of a different location from that made by his surveyor. There may or may not be an important mistake in the buyer’s expectation as to the extent of the purchased lots, but there is no. proof of any mistake whereby the deed executed varied essentially from the actual final bargain.
The decree should be affirmed.
*190By the Pbesident of the Senate.To sustain the appeals in this court, and to entitle the appellant to a reversal of ^he decrees of the court below, he must show: 1. That there was actually a deficiency in the quantity of land conveyed to him by Bennett and Williams; 2. That Bennett and Williams were bound to convey to him a specified quantity; and 3. That this is such a case as should induce a court of equity to interfere, and relieve the aggrieved party. The appellant, I think, has failed on all these points.
It by no means appears satisfactorily, that there is actually any deficiency whatever in the quantity of land sold and conveyed by Bennett and Williams to Marvin. But admitting that there is such deficiency, it does not appear that Bennett and Williams either did, or were bound to convey to Marvin any specific quantity of land. On the contrary, they sold and conveyed to him a particular block of ground, “be the same more or less;” and when, on the making and execution of the deed,the grantors were requested to have inserted in it specific measures and quantities, that was refused, unless an actual survey were first made; for the grantors had no better knowledge or means of knowledge of the precise measures and quantities of the block of ground in question, than had the purchaser, Marvin, or his agent. The deed, therefore, was made, executed, delivered, and accepted, without containing any covenant for any specific length of lines or quantity of ground, but simply describing and conveying a certain block of ground, “ be the same more or less.” This deed, therefore, is to be taken and considered as the final contract between the parties, which both and all have entered into voluntarily, deliberately, and understandingly. It should, therefore, be conclusive upon the parties and their rights.’ This, then, does not present a proper case for such interference of equity as is sought. Here is no fraud established, or mutual mistake of the parties shown, that would not only justify but require the interposition of equity to afford re*191lief. Such interposition in this case, in the manner prayed, instead of rendering more equitable the present contract between the parties, would be the making of a new contract for them, which they have neither done, nor thought proper to do, for themselves. This the courts below, very properly, have not attempted, but refused. Their decrees are right, and should be affirmed by this court.
On the question being put, Shall the decrees of the Chancellor be reversed 1 all the members of the court present at the argument answered in the negative. Whereupon the decrees of the Chancellor were unanimously Affirmed.