The plaintiff filed this bill, to obtain a decree for a specific execution of a contract, made in the year (377) 1835, by Robert Hamilton, with him, for the sale of a tract of land lying in the county of Ashe, called the old fields of New River; and, also; for an injunction, restraining the defendants from proceeding at law on two of the bonds securing a part of the purchase-money. The said tract of land is represented in the written contract set forth in the bill, as being "composed of ten contiguous small tracts of land, containing, each, a certain number of acres, and making in all, about 1670 acres, more or less." The price was $5,000, payable by installments; and the plaintiff executed his bonds to Hamilton accordingly, and he took possession of the land, under the belief that he was to get the title to 1670 acres or thereabouts. But the bill charges that the tract of land, that Hamilton had a title to, was materially less in quantity and value than he had bound himself in his bond to convey. Hamilton left the five bonds given for the purchase-money in the hands of McDowell, the other defendant, for collection, and he removed to a foreign State. Three of the bonds for $1,000 each have been paid, and a part of the fourth bond. The plaintiff further says, that the fact turns out to be, that Hamilton had not title to considerable part of the land mentioned in the contract; some of the said lands are covered by better titles in third persons; and one of the ten small tracts, mentioned in the agreement, contains not more than one-half of the number of acres mentioned. The plaintiff says, that he informed McDowell of it and also of his claim for a deduction in the purchase-money. He says, that he is ready to pay the residue of the purchase-money, after allowing him the proper deductions for the deficiencies in the quantity of land as aforesaid, and take a legal conveyance for what land Hamilton can make a good title for. In 1842, he caused a correct survey to be made of the said land, and instead of there being 1670 acres, that there were but 1315 acres; leaving a deficiency of 355 acres, which the plaintiff estimates to be of the value of $1,266. (378) He says that Hamilton assigned the two unpaid bonds to McDowell, after they became due; and he received them, with full knowledge of his, the plaintiff's equity; he has brought suit on them in Burke Superior Court of law. The bill then prays an injunction, staying the defendant's proceedings on the said bonds at law, and also a decree that Hamilton may execute to him a legal conveyance under the direction of the Court.

The injunction then issued as prayed for by the bill. At the next term of the court, McDowell only answered the bill, and said, that he did not believe there was any deficiency in the number of acres mentioned in the said contract of Hamilton with the plaintiff: for he understood and believed that, about the time the contract was made, a surveyor, by the name of Calloway, surveyed the land, and that his survey showed that there was no deficiency in the number of acres, mentioned in the contract. He admitted, that the two bonds in question were endorsed to him after they were due.

At Spring term, 1843, the injunction was dissolved, as to all the moneys due on the said two bonds, except $1,266. At October Term, 1844, the answer of Robert Hamilton was filed. He admits the contract as stated in the bond for title annexed to the bill, and also that plaintiff has paid a part of the purchase-money, as he has stated in his bill. He states, that he believes and has been informed, that there is not any deficiency in the number of acres mentioned in the contract, but that if there be any deficiency, it must consist in mountain land, almost valueless for cultivation, and not worth ten cents per acre. And he insists, that, if the plaintiff is entitled to a reduction in the price, it should be according to the value of the land in the place, where the deficiency may appear to be. He admits that he assigned the two bonds to McDowell to collect, and to pay a debt due by his testator, Samuel P. Carson, to the bank, to which debt McDowell was surety.

At the same October term, 1844, the Court permitted the plaintiff to make an additional affidavit in support of the injunction, which was read, to resist the motion made by the defendants to dissolve the injunction, on the coming in of the answer of Hamilton. The motion to dissolve was (379) overruled by the Court, and the injunction was continued, until the hearing of the cause. From this interlocutory decree, the defendants, by permission of the Court, appealed.

DANIEL, J.

The plaintiff's equity rests on mistake, and by no means on the ground of fraud. The number of acres stated in the contract, although accompanied by the words "more or less," and the round sum $5,000 given by the purchaser, shows that the said numbers composed a principal part of the description of the land sold. The small tracts of land, which were intended to make up the aggregate amount of 1670 acres, are not described, in the contract, by metes and bounds. The plaintiff says, that there is a mistake in the description of the land of 355 acres, worth $1,266. The defendants in their answer state, that they believe that there is no mistake in the quantity of acres mentioned in the written contract; and they ground their belief upon an ex parte survey of the land made by one Calloway. It is seen, at once, that the master is the proper person, who, by a report, can settle this dispute. The master can have a correct survey made, when and where the parties can attend; he can call witnesses before him, and examine them as to all pertinent facts. The words, "more or less" used in the contract, can not extend so far as to prevent the plaintiff's demand, when the mistake amounts to so large a number of acres and of such a value as is stated in this bill. Leigh v. Crump, 36 N.C. 299, is an authority for the plaintiff: Again, it is a general rule, in a suit for specific performance, in which the single question is, whether the vendor can make a good title, that the Court at the present day directs a reference to the master to enquire into the title; and this, even without the consent of the other party. Brooke v. Clarke, 1 Swanst., 551. Shelton, 1 Ves. Bea., 519. Atkinson on Titles, 226, says that either party to the suit is, as a matter of right, entitled to have a reference upon the title.

In a case like this, where the answers do not clear (380) up the doubt, it can not be expected that the plaintiff should be required to part with his money, without first seeing his title to the land was well secured. In this Court the vendor has not a right to the price, if it be not seen that he is able and ready to convey the land sold.

Secondly. On the coming in of the answer of Hamilton, the Court permitted the plaintiff to file an additional affidavit to repel the force of that answer. This was wrong. Except in a few excepted cases, though five hundred affidavits were filed, not only by the plaintiff, but by many witnesses, not one could be received for the purpose of contradicting the answer. Clapham v. White, 8 Ves., 35. Drewry on Injunction, 424. But we think, that there was enough in the original bill to uphold the injunction to the hearing, notwithstanding the answers.

PER CURIAM. ORDERED THAT A CERTIFICATE ISSUE ACCORDINGLY.

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