*247i. equitable ionveyance.' *246— I. The court below found that there were *247no fraudulent representations made by the plaintiff to the .defendants at the time of, or before, the eonveyanee of the land, and that the sale was not made by the aere, as alleged in the amendment to the cross-petition. An examination of the evidence satisfies us that these findings are correct. There is no evidence tending to show that the plaintiff knew that the land was less in quantity than thirty acres. On the contrary all the facts and circumstances in the ease lead to the conclusion that he believed there were thirty acres, or very nearly that quantity, in the tract conveyed.
The deed does not indicate that the sale was by the acre, and, although the evidence shows that the number of acres was in contemplation by the parties, we think it was a gross sale of what was supposed to be thirty acres of land for nine hundred dollars.
The court below further found as follows: “I am not satisfied that there was any mistake, but in the view I take of the law I have not deemed it necessary to investigate this point so closely as I should under other circumstances. My view of the law is that this must be considered as a law action, and determined by the rules governing them, and that it cannot be considered an equitable action, so as to be brought within the rules laid down in Wilcox v. Iowa Wesleyan University, 32 Iowa, 367.”
In other words, the court held that the cause of action set forth in the cross-petition was essentially one at law, and that it must be considered as an action at law for damages, although entitled in equity, and that under the authority of Holmes v. Clark, 10 Iowa, 423, and other cases, the defendants could not recover damages at law for a mere mistake; a court of equity being the only forum wherein such relief can be granted.
The ease of Holmes v. Clark was an action at law to recover damages for false and fraudulent representations in the sale of land. It was held that to entitle the plaintiff to recover *248he must show by competent evidence “that the representations were false' and fraudulent within the knowledge of the party making them, and that they were made intentionally to deceive, and induce the completion of the purchase,” and that no recovery could be had if it appeared that the representations were made by mistake merely. But the court says: “It is true, in a transaction of this kind, the plaintiff may have been equally surprised by a mistake or by a fraud. If so, he had a like easy and full remedy — not of this description, in a court of law, to be sure, but in a court of equity, whose peculiar province it is to rectify mistakes, and grant the appropriate relief incident to the same. And this could have been done, according to our conception of the true spirit of the Code, without leaving the court, by simply changing the i statement in the petition so as to addres's the equity side of the court.”
The defendants in this cause entitled their pleading a cross-bill, and prayed for a decree. The parties and the court all seem to have understood the issues to be tried as equitable, because no motion was made by the plaintiff for the correction of the cross-bill, and the cause was ordered to be tried upon written evidence as in equity. If there was an error in the kind of proceedings adopted it was waived by a failure' to move for its correction at the proper time. Code, § 2519.
We think under these circumstances, and in view of the ruling in Holmes v. Clark, supra, the defendants were entitled to have the cause tried by the rules and usages of equity, and not by the strict rules applicable to law actions.
But we may go further and properly hold that the relief sought by the cross-bill and amendment thereto, while in its remote sense is compensation in damages for a mistake, yet as the pleadings are framed they present grounds for equitable relief. It was alleged that the plaintiff was the owner of the note given for the last payment on the land, as well as the note in suit, and it is prayed that he be decreed to produce both of said notes in court for cancellation to the extent of the dam*249.ages sustained by defendants. If the defendants had purchased this land, and after the removal of the timber had discovered such a mistake as would entitle them to equitable relief, and had commenced an action for the cancellation of the notes to the extent of the injury caused by the mistake, their action would have been of equitable cognizance. It would, it is true, ■be indirectly recovering damages for the mistake, but this would not determine the jurisdiction. It cannot be said that there can be no relief in equity, because by the removal of the timber there cannot be an entire rescission of the contract.
Now the cross-petition of the defendants presents precisely the same issue as would be presented if they were plaintiffs seeking the cancellation of the notes and an abatement of purchase money to that1 extent. The fact that afterward they paid the note last maturing to a Iona fide indorsee would not oust a court of equity of jurisdiction. Having •once obtained jurisdiction upon issues properly presented, the jurisdiction would be retained and the rights of the parties determined, even though the relief ultimately should be ,a mere money judgment.
„ - ^ess”iiío0re deed-II. Having determined, then, that such issues were presented as were properly cognizable in equity, we come to inquire whether the defendants are entitled to relief upon the ground of mistake. The land conveyed was described in the deed as follows: “Thirty acres, more or less, off of the north side of lot No. 1, of section 6, in township 80 north, range No. 4 east; said -thirty acres, more or less, lying north of the big slough, running east and west through said lot No. 1, thereby leaving the south line of said thirty acres, more or less, running east •and west with said big slough, commonly called the Martin Slough.”
It appears from an actual measurement of the lands made after the conveyance, and after the defendants had removed a large quantity of the timber therefrom, that it contained -eighteen acres and eighty one-hundredths. We think the evi*250denee fairly shows that the plaintiff was mistaken in the quantity of the land, and that he supposed it contained thirty acres or closely approximating thereto. This mistake may have partly originated from the fact, which we consider well established in the evidence, that he went upon the land after the defendants commenced cutting timber, but before the conveyance was made, and pointed out the east boundary line incorrectly. If the east line had been where he supposed it was, and where he pointed it out, there would have been seven and sixty one-hundredths acres more in the tract.
The plaintiff entered the land and it was patented to him by the United States in the year 1850. The patent describes-the lot as forty-t^o and seventy one-hundredths acres. In 185é the plaintiff conveyed to one'Russell that part of the-land lying south of the slough, and in the deed described it as containing twelve acres, more or less. If these descriptions had been correct there would have been thirty acres conveyed by the deed to defendants. When the defendants were at the-plaintiff’s house negotiating for the land the plaintiff exhibited to them his patent therefor. He testified upon the question of quantity as follows: “They asked me how much I had. I told them I had forty-two acres and over in the first place, but I had sold a piece off to Russell on the south side of the slough, and I had never‘had it surveyed, and did not know how much there was of it. I called it twelve acres, and made a deed for more or less. The balance of the land I had. I told them I had been paying taxes on thirty acres; did not know how much I had. It is a fact that I have been paying taxes on thirty acres or over. Inever paid less than on thirty acres.”
With this information as to quantity the defendants examined the land. They measured an acre, with an average of' the timber upon it, and counted the trees and estimated “how much it would make to the acre.”
In a few days after the bargain was concluded, the parties, met at the office of Keorgan Orndorf, a justice of the peace, and the conveyance was made. Orndorf prepared the deed *251and described the land as thirty acres. The plaintiff objected to the description, because he did not know whether there were thirty acres or not. Orndorf then wrote the description, which is the one contained in the deed, and all the parties agreed thereto. The plaintiff then stated that he had sold the south part to Russell and he did not know how much that contained, and did not want to warrant any quantity. Another reason given by the plaintiff why he did not -want to warrant thirty acres was that the lot was bounded in part by the river, and that some portion thereof was washed away. Notwithstanding these facts, we think it is apparent that all the parties believed there were about thirty acres in the tract, and that none of them supposed that it contained but eighteen and eighty one-hundredths acres.
. We have, then, to determine what are the rights of the parties. The sale was in gross and not by the acre. The parties believed the tract contained about thirty acres. They were mutually mistaken in the quantity to the extent of more than one-third of the land. The d^ed described the land as thirty acres, more or less. Does this designation of the land as more or less than the acres named preclude all inquiry into the mistake and bar the defendants of any relief ?
We have to say that we think not. In Belknap v. Sealey, 14 N. Y., 143, the land in question was situated in the city of Brooklyn. In consideration of the gross sum of fourteen thousand dollars, of which one thousand was paid down, the defendant agreed to convey the land to the plaintiff, describing it as “the premises conveyed to him by Samuel T. Roberts,” by deed dated nine months previous. The deed of Roberts contained a definite description by metes and bounds, and stated thg quantity to be “about nine acres, more or less,” excepting a certain parcel of one acre and six perches. The quantity, in fact, was only about half as much as the deed asserted. The defendant was guilty of no fraud, and it did not appear that he made any representations as *252to the quantity except the exhibition of Roberts’ deed, and of a diagram made by himself, or his agent, which had upon it a memorandum stating thus: “The deed calls for nine acres, less one acre and six perches sold.”
The action was by the purchaser to recover the one thousand dollars purchase money which he had paid, and to rescind the contract. The court held that the plaintiff was entitled to relief. The opinion is based upon the principle that the words “more or less,” in stating quantity in a deed, can have no application where the difference between the real and supposed quantity is so great as necessarily to imply a mutual mistake, which goes to the essence of the contract; that the words “more or less” are intended to cover a reasonable excess or deficit, and that if the difference be very great both parties act under an obvious mistake, which it is the duty, of a court of equity to correct. The opinion discusses and criticises the cases of Marvin v. Bennett, 8 Paige, 312; Veeder v. Fonda, 3 Id., 94, and Morris Canal Co. v. Emmett, 9 Id., 168, cited by connsel for appellee in the ease at bar.
In further support of the doctrine announced in Belknap v. Seeley, see Kerr on Fraud and Mistake, 65, where it is said: “The presence of the words ‘more or less’ in a contract for the sale.or a deed of conveyance of land, after a statement of the quantity of acres therein, does not import a special engagement that the purchaser takes the risk of the quantity. The words must be taken to cover a reasonable excess or deficiency. If it turn out that the quantity falls considerably short of what it was represented to be the court will relieve the purchaser from payment for the deficiency, but a slight variation does not afford a ground of relief.”
We have examined the authorities, English and American, cited by the learned author in support of the rule and find them to be in full accord with the text.
Applying this rule, then, to the case at bar it is apparent that the mistake was such an one as entered into the very essence of the contract, and that if the number of acres actually *253contained in the tract had been known the contract never would have been entered into by the defendants. If they had known, when they were estimating the timber upon the average acre, that they were required to pay nine hundred dollars for a little more than eighteen such average acres it is incredible that they would have made the purchase. But as the rule does not embrace a reasonable excess or deficiency, and as the plaintiff expressly stated to the defendants that the river had washed away some of the land, and that was one reason why the words “more or less” were inserted in the deed, no relief should be granted for the deficiency which occurred from that cause. We have the original plat and field notes of the survey of the land made after the deficiency was discovered. It appears therefrom that the land washed away since the original survey was three and twenty-two one-hundredths acres. The whole deficiency was eleven and twenty one-hundredths acres. Deducting the three and twenty-two one-hundredths acres would leave a deficiency from other causes of about eight acres, which, at thirty dollars per acre, amounts to two hundred and forty dollars. This amount should be abated from the contract price as of the time the notes were executed. The amount, so far as necessary, should be set off against the note in suit, and the defendants should have judgment for the residue. In other words the estimate, should be upon the basis of twenty-two-acres, at thirty dollars per acre, with interest at ten per cent per annum upon such of the purchase money as was not paid when the contract was made. The cause will be' reversed and remanded for a decree in harmony with this opinion.
Beversed.