dissenting:
I regret to say that I cannot concur in the majority opinion or in its results. It places the conclusion to affirm the decree complained of upon two grounds:
1. Because the evidence does not show that there was any misrepresentation on the part of the appellee as to the quantity of land.
2. Because the evidence does not show that the sale was expressly or impliedly a sale by the acre.
1. As to the second ground referred to (which will be first considered) :
Since the opinion of this court delivered by Judge Baldwin in the leading case on this subject in Virginia of Blessing v. Beatty, 1 Rob. (40 Va.) 287, it has been the settled rule in this State, followed by an unbroken line of decisions, that, where the contract of sale refers to the numbér of acres of the land, although a price in gross for the whole of the land is stated and nothing is said in the contract as to the sale being by the acre, it is presumed to be a sale by the acre, unless there is other and affirmative proof that the contract was one of hazard as to acreage and that the sale was expressly agreed to be-in gross; and that the burden is always upon'the party asserting the contract of Hazard (which is not a contract which is favored in equity), to prove an express contract of a sale in gross; and the latter must be clearly established by the facts before the court will so hold. Blessing v. Beatty, supra; Crawford v. Mc*219Daniel, 1 Rob. (4 Va.) 448; Jackson v. Ligon, 3 Leigh (30 Va.) 161; Benson v. Humphreys, 75 Va. 198; Berry v. Fishburne, 104 Va. 459; Watson v. Hoy, 28 Gratt. (69 Va.) 696, 698; Emerson v. Stratton, 107 Va. 303, 307; Pack v. Whitaker, 110 Va. 122—to cite only a few. of the cases on this subject.
In the cause before us the contract of sale, which was in the form of a statement in writing signed by the appellee and accepted by a memorandum at its foot signed by Latham, acting for himself and appellant, was as follows:
“Memorandum of Agreement.
“Washington, D. C., August 25, 1913.
“I have this day sold to J. W. Latham, of Washington, D. C., and R. F. Austin, of Greenwood, Miss., all my tract of land, in Fairfax county, Virginia, lying on the south side of Accotink Run, one mile west of Pohick station, on the R. F. & P. R. R., formerly owned by Miss Mary Custis Lee, supposed to contain 800 acres, on the terms, to-wit; $500.00 cash, paid in hand, a receipt for which is hereby acknowledged, seven thousand five hundred ($7,500.00) January 10, 1914, and said Latham and Austin assume the present mortgage that is now on the place, of four thousand dollars ($4,000.00) payable as follows: ($1,000.00) one thousand dollars, on August 2, 1914, one thousand dollars ($1,000.00) dollars on August 2, 1915, and balance of ($2,-000.00) dollars August 2, 1916. A full settlement of all interest and taxes, etc., and a general warranty deed given on January 10, 1914.
“Witness my hand and seal this 29th of August, 1913.”
(Signed) “Frederick H. Sanders (Seal).”
There was no evidence in the cause that there was any express agreement that the sale was to be in gross and not by the acre.
*220Under the rule in Virginia above referred to, therefore, the evidence in the cause shows that there was “impliedly” a sale by the acre, - and hence I cannot agree with the conclusion of Judge Burks on the second ground upon which he rests his opinion.
2. As to the first ground above referred to, on which the opinion of Judge Burks is based:
The same line of decisions in this State above referred to, and some of which are above cited, establish the doctrine that the principle on which equity grants the relief sought by the appellant in this cause is that of granting relief from the payment of. money induced by a bona fide mistake of fact as to the quantity of- the land purchased. As said by Judge Baldwin in Blessing v. Beatty, supra: “The principle upon which equity gives relief in cases of deficiency * * * in the estimated quantity upon the sale of lands, I understand to be that of mistake; whether the mutual mistake of the parties or the mistake of one of them occasioned by the fraud or culpable negligence of the other. I do not perceive any other principle upon which the jurisdiction can be founded * * *” The mistake of the vendee and plaintiff in such a case may or may not have been induced by the misrepresentation, fraud or culpable negligence of the vendor. If it was induced by a mutual mistake, both of vendor and vendee (as indeed is stated by the majority opinion in the outset of it as well as in Judge Baldwin’s opinion above quoted), the vendee plaintiff is entitled to the relief of recovery back of so much money as he may nave been induced to pay to or for the vendor, by such mistake of fact existing on the part of the vendee. The gravamen of such a case and the only essential thing to entitle the vendee plaintiff to relief is that he paid the money under a bona fide mistake of fact as to the quantity of the land, when the sale was a sale by the acre and not one of hazard (not a sale in gross), as aforesaid.
*221Whether the mistake of appellant was induced by any misrepresentation of the appellee, therefore, is immaterial. If the truth was that Latham first conceived the mistaken idea, that there was 800 acres in the tract of land and- that his mistake was induced by the Accotink Run not being laid down accurately on the map of the “Ravensworth” lands made by R. R. Farr, surveyor, and even if Latham communicated this obsession of his to the appellee (as he did undoubtedly to the appellant), all of this, as I view the matter, was immaterial. The fact remains, that however induced, at the time the appellee signed the contract aforesaid, and it was entered into by appellant; and at the time the appellant paid the first $4,000 paid by him; at the time the deed to appellant from appellee was delivered; and at the time appellant subsequently paid the second $4,000 and interest and expenses presently to be mentioned; both appellee and appellant were acting under the honest mistake that said land contained 800 acres, when in fact it contained a substantially less quantity, to-wit, only 580.22 acres and Latham also acted under the same honest mistake of fact. There is no suggestion by the evidence in the cause of any conscious misrepresentation or fraud on the part of any one.
That the appellee acted under said honest mistake of fact, is conclusively proved to be a fact by the contract of sale above quoted, signed by him, in its reference to the land as “supposed to contain 800 acres.” (Indeed, if any representation as to quantity from appellee v/as necessary, here was a representation directly by him to appellee, and in writing, in the very contract of sale itself. That the contract was drawn by some one else, is of course immaterial. The reference in the contract of sale to the “supposed” quantity of the land, is however material, as evidence of the quantity of land which is presumed, under the rule above referred to, to have been in the minds of the-contracting *222parties and to have fixed the total purchase money upon a computation based on a sale by the acre.) That Latham may have before the date of such contract made thy same representation to appellant, is in my view of the case wholly immaterial, or in what capacity Latham was then acting, whether as agent for the appellee or as a partner of appellant. The ultimate fact, as shown by all of the testimony in the cause, and about which there is no suggestion of any doubt anywhere, or on the part of any party in interest, is that the appellant acted under the honest and bona fide, although mistaken, belief that there were 800 acres of the land when he paid that portion of the purchase money which was paid by him therefor; and that the appellee acted under the same mistake of fact when he received that portion of the purchase money which appellant paid him directly and when he took appellant’s obligation as to the assumption of the $4,000 mortgage or deed of trust on the land to be paid for appellee, which eventually resulted in the sale of the land thereunder and the further payment of purchase money for said land made by appellant for appellee.
Accordingly, under said contract, appellant, on or before January 9, 1914, paid to the appellee $4,000 or one-third of the purchase money. Latham paid the like portion of the purchase money on or before January 9, 1914, or it was “settled” between Latham and appellee. This left a remainder of one-third of the purchase money unpaid, being the $4,000 covered by the mortgage or deed of trust debt mentioned in said contract, the payment of which was assumed by Latham and appellant. Subsequently appellant, on August 2, 1914, paid $500 on the principal of said $4,000 remainder of purchase money and $60 on account of interest on the $4,000 for one year. Latham defaulted in the. payment of his part of such remainder due August 2, 1914, and in November, 1914, the land was sold under the mortgage or deed of trust aforesaid and was bought in by ap*223pellant for the amount of the balance of said $4,000 remainder of purchase money (and interest to that date) then still unpaid, and expenses of sale, aggregating $3,865. That is to say, by his purchase-at said sale and the payments made by him prior thereto aforesaid, appellant paid two-thirds of the purchase money of $12,000 for said land, and about $129.80 in excess thereof, expenses of said sale, all under-the mistaken belief that he was getting at least 800 acres of land.
The evidence in this cause established beyond all question, therefore, that the appellant thus’ paid two-thirds of said purchase money under an honest mistake as to the quantity of said land. By actual survey in June, 1915, the quantity of the land was ascertained to be 580.22 acres, or a shortage of 219.78 acres was found to exist of the supposed quantity of 800 acres, as stated in the contract of sale aforesaid. If there were no facts with respect to buildings on the land or other circumstances to disturb the average price per acre (and there is no suggestion thereof in the record), the contract price of the land (supposed to be 800 acres at $12,000) was $15 per acre. The shortage of 219.78 acres at $15 per acre would amount to $3,296.78. As appellant paid two-thirds of the contract price for the land to and for the appellee under the mistake aforesaid (not computing the expenses of sale aforesaid paid by him, with which appellee should not be chargeable), the appellant paid for two-thirds of said 219.78 acres shortage of land, and is entitled to recover of the appellee two-thirds of said $3,296.78, or the sum of $2,197.80, with legal interest on $68.68 parcel thereof from August 29, 1913; on $1,030.22 parcel thereof from January 9, 1914; and on $1,-098.90, the residue thereof, from November . . . ., 1915 (the day of sale under said deed of trust) until paid, and the costs of suit in the court below and upon this appeal.
Latham paid for one-third of said shortage of land, but he is not a party before the court seeking to recover for such *224payment. It is true that appellant claims to be entitled to such recovery also, but no principle is- perceived upon which such a recovery by appellant could be allowed. The principle on which relief is granted in Such cases, above stated, does not apply to such a recovery by appellant, who did not pay such money.
It should perhaps be further stated that it is true, as mentioned in the majority opinion, that the deed from appellee to appellant omits any statement of the acreage of the land. But there is no suggestion in the record that this omission was caused by any change in the supposition or belief of the vendor and vendee that the land contained 800 acres at least. Such omission, therefore, can have no effect to prove an express contract of hazard or of a sale in gross. At most the deed was merely silent as to what the contract was as to acreage, and gave no covenant of warranty as to the quantity of acreage on which an action of covenant would lie. But since this case is not an action of covenant, the silence of the deed on this point is immaterial. The deed does not supersede the contract of sale as to the supposed quantity of the land by stating that a different quantity from that named in the contract is_ conveyed; but uses language which would operate to convey the land whatever in fact might be the acreage, whether in excess of the contract quantity or less than that quantity.
For the foregoing reasons' I am of opinion that the decree complained of should be reversed.