(After stating the foregoing facts.) This case involved the title to a parcel of land. It appears from the record that the plaintiff Deal owned two tracts of land, one known as the Hardee tract and the other as the Bell place. He sold the Bell place, and a portion of the Hardee tract adjoining, to his sister, Mrs. Strouse, and executed and delivered to her a deed describing the land, in which it was stated that it “contained one hundred acres more or less.” Mrs. Strouse in turn conveyed a tract of land to the defendant Finch, describing it as “containing one hundred acres more or less.” The plaintiff’s contention was, that he sold and conveyed to Mrs. Strouse the Bell place and a certain portion of the Hardee place, all of which he and Mrs. Strouse estimated to contain about one hundred acres, and that the land was sold by the tract, and not by the acre. The contention of the defendant Finch was, that the plaintiff sold to Mrs. Strouse one hundred *291acres of land, which consisted of the Bell place and enough of the Hardee tract to make the one hundred' acresj that the purpose of the deed he made to Mrs. Strouse was to convey one hundred acres; and that the words “more or less” were inserted in the deed from the plaintiff to Mrs. Strouse by the clerk who prepared the deed, he saying at the time that it was customary to put such words in deeds. After the deed from the plaintiff to Mrs. Strouse was executed and delivered, Mrs. Strouse contended that the land described in the deed to her from the plaintiff did not contain one hundred acres, and had a surveyor to run off a sufficiency of the Hardee tract of land to make one hundred acres, and to mark a line indicating the additional land she claimed to make up the deficiency. This survey was made and the line run and marked without the knowledge or consent of the plaintiff. Afterwards Heal had a portion of the land so surveyed and marked off cleared, and cultivated it for about four years before this suit was instituted. He never did anything towards ratifying the action of Mrs. Strouse in having the additional land surveyed and marked off, so far as the record discloses, but, on the contrary, cleared and cultivated the land for several years after this without interference.- It is not clear whether Mrs. Strouse, in the deed made by her to the defendant Finch, included such additional part of the Hardee place; but granting that she did, the defendant under such deed did not get a good title to it as against Deal] and therefore the evidence did not authorize a verdict in behalf of the defendant. Indeed, under the record as it now stands, it would not have been improper for the court to have directed a verdict in favor of the plaintiffs. The court erred in refusing to grant the motion for a new trial.
Judgment reversed.
All the Justices concur.