1. The only question in this case is, whether the lower Courts have misconstrued the sale-deed, Exhibit 37, in favour of the defendants. The question really depends upon whether the land that was sold to the defendants was particularized-described and identified-with reference to-
(1) its measurements : as three acres and four gunthas; and by reference to the land being half of Pot 3, in survey No. 94, or,
(2) whether it was sold with reference to the actual piece of land : of which possession was given to the vendee at the time of the sale ?
2. A similar question was considered in Suleman Vadu v. Trikamji Velji (1875) 12 B.H.C.R. 10 and Mr. Justice West, delivering the judgment of the Court, put the question in the following form (p. 1.2):-
The question seems to be whether the area of the field, as specified, was an essential para of the consideration for the payment made by the plaintiff, or whether, although the area is set down as matter of description, he bought and took the field as a particular object identified and estimated for the purpose of the contract independently of the circumstances of its area being or not being so much as 30 acres. Prima facie the specification of the area implies, we think, that the area is regarded as material by the parties, and is the quality, or one of the qualities, specially had in view as the basis of their contract. The Roman law gave an action ex empto in such a case : 'Et quidem tenetur ex emptovenditor etiamsi ignoraverit minorem fundi modum esse' : Poth. Pan. L. 19 T.I. Section 68. Paulus is cited in the next section to the same effect. Pothier himself lays down the principle of proportional compensation in his Traits de Vente, Section 258 ; and Sections 1617, 1622 of the Code Civil embody a similar rule. It appears to be founded on justice, and to be the one which should be applied in all such cases, except where it is clear that the precise area was not regarded as material.
3. West J. contrasted
(1) the area set down as a matter of description, with
(2) the field as a particular object identified and estimated for the purposes of the contract independently of the circumstances of its area being as much as was specified.
4. His subsequent remarks fall under two heads : (1) It is pointed out that prima facie the specification of area must be considered as a material term of the contract by which the parties must be held bound. This position is supported by reference to the rule of Roman law that the vendor must be held bound by the contract of sale even though he be ignorant of the dimensions of the estate sold. (2) Secondly, he accepts, and the Court gives effect, in its decree, to the rule of proportionate compensation. This rule really follows as an adjectival result from the substantive rule stated immediately before by West J. in the passage I have cited.
5. The argument on behalf of the appellant before me may consequently be considered to be an adaptation of the principle adopted in Suleman Vadu's case. I assume that that principle must be followed unless other rules or considerations come into operation, in addition or in substitution,-other principles which are introduced by reason of the particular conditions of sale between the parties, or of the general law. I proceed to consider these.
6. With reference to the English cases cited to me, it seems to be the practice in England to include in conveyances a clause to the effect that in case the description of the property is not correct, there may be compensation payable either to the purchaser or to the vendor, as the case may be. This may be compared with the principle of proportional compensation referred to by Pothier as cited by West J. Bearing that in mind, I will refer, in the first instance, to certain general rules laid down in the Law of Vendors and Purchasers of Estates by Edward Sugden (afterwards Lord St. Leonards), 14th Ed. (1862), page 31, pi. (53). After referring to the general rule, he says :-
The former condition, [viz., where the condition provides for a compensation to be paid either to the purchaser or the seller, as the case may be] which is the usual one, forbids the construction that the seller is, bygross negligence, to misdescribe the property, and then to claim an additional price for some advantage which he has omitted to mention and the like construction must prevail, whether the compensation be payable to the purchaser or to the seller.
and at page 325, pl. (6) and (7) he states :-
But a seller knowing the true quantity would not be allowed to practise a fraud by stating a false quantity, with the addition of the words ' more or less' or the like.- Duke of Norfolk v. Worthy (1808) 1 Camp. 337, and Winch v. Winchester (1812) 1Ves & Be. 375
If an estate be represented as containing a given quantity, although not sold by the acre, and the purchaser was intimately acquainted with the estate, the statement of the quantity would convey the notion of 'admeasurements; and therefore the Court would not infer that the purchaser knew the real quantity Winch v. Winchester, (1812) 1 Ves. & Be. 375 So upon a sale of a house to the tenant m possession, a statement in the particulars that the property was 46 feet in depth, when, in fact, the depth was only 33 feet, was hold to entitle the purchaser to an abatement King v. Wilson (l843) 6 Bea. 124 But if the purchaser did know the real quantity in the one case or the real depth in the other, of course he could not claim any allowance for the deficiency, nor, as we have seen, if the deficiency is provided for by the contractLethbridge v. Kirkman, (1855) 25 L.J Q.B. N.S. 89 ; in the fourth condition the actual quantity was in excess of that stated in the deeds.
7. Another consideration to which the Courts have paid attention is referred to by Lord Romilly, Master of the Rolls, In Harris v. Pepperell (1867) L.R. 5 Eq, 1
The deed, with this error in the parcels, was executed by the Plaintiff without any examination, and he did not discover it till he was on the point of soiling the plot to which the piece of land in question was supposed to belong, when he discovered that it was already included in the coveyance to the Defendant;
and in the case that has been cited to me by the learned advocate for the appellant, Cowen v. Truefitt, Limited (1899) 2 Ch. 309 Lindley M.R. prefaces, with reference to the maxim falsa demonstratio non nocet, that the doctrine should not be whittled away so as to make it ridiculous, as would happen if it were applied only when there is some incorrect description at the end of the sentence. Then he continues (p. 311) :-
I do not know that the principle can be better pub than it is in Jarman on Wills, 5tb ed. p. 742, where it issaid the rule means 'that where the description is made up of more than one part, and one part; is true, but the other false, there, if the part which is true describe the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise.' ' The characterestic of cases within the rule is, that the description, so far as it is false, applies to no subject at all, and, so far as it U true, applies to one only.' Thus, in Day v. Trig (1715) 1 P. Wms. 286, where one devised ' all his freehold houses in Aldersgate Street, London,' having in fact only leasehold houses there, it was held that the word ' freehold' should rather be rejected than the will be wholly void, and that the leasehold houses should pass.'
8. I derive, therefore, these principles: In the first place it is necessary to start by recognising that when the area (or any other similar particular) is set down as part of the description of the property sold, the area (or other particular) must have been regarded as material, by the parties. It must have been the quality, or one of the qualities specially had in view as the basis of the contract. Secondly, it follows that as a general rule it is. just that the principle of proportionate compensation be applied. Thirdly, this general rule is subject to some exceptions. The exceptions need not, assuming that they can, be exhaustively stated. But the following, taken from the authorities I have cited, sufficiently elucidate the present case, (a) The terms of a contract, or other circumstances may make it clear that the precise area was not regarded as material, (b) The seller is not allowed by fraud or gross negligence to mis-describe the property and then claim additional price, (c) When the area stated in the conditions is contradicted by other statements, another set of rules and considerations may govern the case. One course to follow in such a case-where there are contradictions in the grant, devise or contract of sale-would be to hold the terms of the document (the terms being self-contradictory) to be incapable of being enforced. This extreme course is, however, not followed, if it appears that one of the two contradictory parts is true; and the other part is false ; and the part that is true describes the subject of sale with sufficient legal certainty. In such a case the true part is adopted and the false rejected. The characteristic of the cases falling under this last principle is that the description so far as it is false applies to no subject at all; and so far as it is true applies to one only.
9. The manner in which the learned Judges below have considered the case was entirely in accordance with the law. They have proceeded on the basis that the land was referred to as being three acres and four gunthas, and also described by its boundaries: that these two particulars were contradictory ; that possession of the particular portion of the survey No. 91 described by its boundaries was given to the vendee, and he has been in possession of it for some considerable time; that the vendor rested content with this interpretation and performance of the contract between himself and the vendee ; and that no complaint would have been made, had it not been for the fact that the Government survey caused the vendor to discover the inequality between the portion of the land taken by the vendee or rather given by himself to the vendor and the other portion which were supposed to form equal moieties of survey No. 94. The learned Judges have held that, on a true construction of the deed, it must be taken that the parties intended to convey, and to take a conveyance of, the actual plot of land, and that neither the measurement as expressed in acres and gunthas, nor the fact that the other portion of survey number 94 was supposed to be equal in admeasurement, was the governing portion of the description in the deed. The authorities I have cited show that they proceeded on the correct basis. The appeal must be dismissed with costs.