Christiancy J.
The agreement set up in the bill in reference to a guarantee of the quantity of land, a survey of the'premises, and-an endorsement to be made on the mortgage for any deficiency, was, if any such existed, wholly verbal. Whether such verbal agreement was ever made, is a question upon which the evidence is conflicting, and much of it directly contradictory, leaving the question open to considerable doubt. But, without going at all into the question of the weight of the evidence, we propose to consider the case in the most favorable aspect to the complainant, which the testimony on his own part will warrant.
The case as presented by the evidence on the part of the complainant, including his own, is substantially this:
The defendant was residing on the farm at the time of the sale, and had resided there for some twenty-five years. Complainant and his father, who aided him in the negotiation, had also been acquainted with the premises for many years. There is no pretence on the part of complainant, that the actual boundaries of the land were not known by, and visible to, all the parties. But the defendant had never had it .surveyed. At the time of the verbal arrangement for the sale, two or three, days before the papers were executed, the defendant represented the land as containing one hundred and ten' acres, and said he would warrant it to contain that quantity; and complainant thereupon, verbally agreed to purchase the farm, and pay four thousand two hundred dollars for it, if there should be that amount of land. This verbal arrangement was made at the defendant’s house on the-premises; and the parties were to go in a day or two after to Pontiac, and have the writings drawn. They met at Pontiac accordingly for that purpose. Mr. Car-[362]*362hart, a justice of the peace, was employed at the suggestion of the defendant to draw the papers — a deed from defendant to complainant, and notes and a mortgage upon the land for part of the purchase money, and an assignment by the complainant to the defendant of another mortgage received as part of the purchase money.
Immediately before the papers were drawn, as the parties were going up into Carhart’s office for the purpose, on, or at the foot of the stairs, a conversation was had between the parties in which it was verbally agreed, that complainant should or might get the' land surveyed by the county surveyor, and if it fell short (of 110 acres,) an amount proportioned to such deficiency should be endorsed on the first payment to be secured by the mortgage complainant was to give for fifteen hundred dollars of the purchase money. If the land should overrun, complainant was to pay for the excess at the same rate, though it is not stated how or when. The parties then went into the office, and while Carhart was drawing the deed of the farm, the defendant wished him to insert the words “more or less” after the words at the close of the description, “containing one hundred and ten acres.” But to this, complainant’s father, acting on his behalf (though he was himself present,) objected; because they did not know, as he says, how much land there was, and they were to have it surveyed, or, as stated by the father in his testimony, “because the complainant had nothing but the defendant’s word for the amount of land, but expected one hundred and ten acres.” The verbal agreement was not stated to the justice, or in his presence. The deed was drawn without the words “more or less,” and the complainant executed his three promissory .notes for $500 each, and a mortgage upon the farm to the defendant securing the notes; having paid him in cash and by the assignment of a mortgage, the balance of the $4,200. Complainant says he delivered his mortgage and [363]*363notes, relying upon the understanding above stated. The papers were exchanged. Complainant received the deed, and went into possession. No written agreement was executed or seems to have been contemplated by either of the parties as to • the survey or the endorsement of any deficiency.
Upon survey made some months after by the county surveyor, the farm was found to contain but ninety-three and a half acres: and the defendant being called' upon to endorse the deficiency, refused.
From this statement, it is clear:
1st. That the verbal agreement, if made as claimed by the complainant, constituted, while the matter remained in parol, a part of the terms of the entire contract of purchase and sale.
2d. That the papers drawn by Carhart, and executed by the parties, together with the payment of a part of the purchase money, were intended and understood by both parties as the consummation of the sale by the one, and the purchase by the other.
3d. That the omission to insert in the deed or mortgage, or a separate instrument, any stipulation with reference to a survey to be had of the land, or the allowance or endorsement for deficiency, was not the result of any mistake of fact, or of inadvertence from the subject not occurring to the mind of the complainant; but that the subject of such survey and deficiency was present to his mind during the drawing of the papers, and that the deed was drawn without the words “ more or less,” with the idea that it would operate as a guaranty of the quantity. That the parties knew the contents of all the papers executed; that all were executed and exchanged without any oversight or mistake of fact, in the very form intended by all the parties, and that they contained all that the parties intended should be contained in any written evidence of the transaction between them.
[364]*364It is not denied that, upon the face of the papers executed, and according to their legal effect, the complainant took the farm at his own risk as to quantity. — Roat v. Puff, 3 Barb. 553, and cases there cited. If in accepting the deed and exchanging papers, he did not intentionally abandon all claim of compensation for deficiency, he must have relied either, first, upon the quantity mentioned in the deed as a guaranty, or second, wholly upon the contemporaneous verbal agreement, or third, upon both together.
If he relied upon the first, it was a mistake of the legal effect of the instrument, the contents of which he knew — purely a mistake of law. This is no ground for relief. — See Irnham v. Child, 1 Bro. C. C. 92; Townsend v. Stangroom, 6 Ves. 328, 332; Worrall v. Jacob, 3 Meriv. 267, 271; Hunt v. Rousmaniere, 1 Pet. S. C. R. 1; 2 Mason, 366; Gilbert v. Gilbert, 9 Barb. 532; Arthur v. Arthur, 10 Barb. 9; Farley v. Bryant, 32 Me. 474; Mellish v. Robertson, 25 Vt608.
He can have no relief upon the ground of the verbal agreement alone, or in connection with the deed; because, first, to say nothing of the statute of frauds, it was a part of an entire contract for the sale of the land, made immediately preceding, and contemporaneous with the deed and other papers executed in consummation of the sale, and related to its very terms. It was, therefore, merged in, or cut off by the deed and other writings by which the sale was consummated, and which must, in the absence of fraud, be presumed to contain all the terms finally agreed upon.— Street v. Dow, Harr. Ch. 429; Stevens v. Cooper, 1 Johns. Ch. 429; Stark. Ev. 660 to 665; 1 Greenleaf's Ev. Sec. 275; Cowen and Hills notes to Phil. Ev. Note, 948; and see especially Broughton v. Coffer, 18 Gratt. 184.
2d. Because the parol agreement would tend to contradict and vary the notes and mortgage given by complainant at the same time as a part of the same transaction.—
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Christiancy J.
The agreement set up in the bill in reference to a guarantee of the quantity of land, a survey of the'premises, and-an endorsement to be made on the mortgage for any deficiency, was, if any such existed, wholly verbal. Whether such verbal agreement was ever made, is a question upon which the evidence is conflicting, and much of it directly contradictory, leaving the question open to considerable doubt. But, without going at all into the question of the weight of the evidence, we propose to consider the case in the most favorable aspect to the complainant, which the testimony on his own part will warrant.
The case as presented by the evidence on the part of the complainant, including his own, is substantially this:
The defendant was residing on the farm at the time of the sale, and had resided there for some twenty-five years. Complainant and his father, who aided him in the negotiation, had also been acquainted with the premises for many years. There is no pretence on the part of complainant, that the actual boundaries of the land were not known by, and visible to, all the parties. But the defendant had never had it .surveyed. At the time of the verbal arrangement for the sale, two or three, days before the papers were executed, the defendant represented the land as containing one hundred and ten' acres, and said he would warrant it to contain that quantity; and complainant thereupon, verbally agreed to purchase the farm, and pay four thousand two hundred dollars for it, if there should be that amount of land. This verbal arrangement was made at the defendant’s house on the-premises; and the parties were to go in a day or two after to Pontiac, and have the writings drawn. They met at Pontiac accordingly for that purpose. Mr. Car-[362]*362hart, a justice of the peace, was employed at the suggestion of the defendant to draw the papers — a deed from defendant to complainant, and notes and a mortgage upon the land for part of the purchase money, and an assignment by the complainant to the defendant of another mortgage received as part of the purchase money.
Immediately before the papers were drawn, as the parties were going up into Carhart’s office for the purpose, on, or at the foot of the stairs, a conversation was had between the parties in which it was verbally agreed, that complainant should or might get the' land surveyed by the county surveyor, and if it fell short (of 110 acres,) an amount proportioned to such deficiency should be endorsed on the first payment to be secured by the mortgage complainant was to give for fifteen hundred dollars of the purchase money. If the land should overrun, complainant was to pay for the excess at the same rate, though it is not stated how or when. The parties then went into the office, and while Carhart was drawing the deed of the farm, the defendant wished him to insert the words “more or less” after the words at the close of the description, “containing one hundred and ten acres.” But to this, complainant’s father, acting on his behalf (though he was himself present,) objected; because they did not know, as he says, how much land there was, and they were to have it surveyed, or, as stated by the father in his testimony, “because the complainant had nothing but the defendant’s word for the amount of land, but expected one hundred and ten acres.” The verbal agreement was not stated to the justice, or in his presence. The deed was drawn without the words “more or less,” and the complainant executed his three promissory .notes for $500 each, and a mortgage upon the farm to the defendant securing the notes; having paid him in cash and by the assignment of a mortgage, the balance of the $4,200. Complainant says he delivered his mortgage and [363]*363notes, relying upon the understanding above stated. The papers were exchanged. Complainant received the deed, and went into possession. No written agreement was executed or seems to have been contemplated by either of the parties as to • the survey or the endorsement of any deficiency.
Upon survey made some months after by the county surveyor, the farm was found to contain but ninety-three and a half acres: and the defendant being called' upon to endorse the deficiency, refused.
From this statement, it is clear:
1st. That the verbal agreement, if made as claimed by the complainant, constituted, while the matter remained in parol, a part of the terms of the entire contract of purchase and sale.
2d. That the papers drawn by Carhart, and executed by the parties, together with the payment of a part of the purchase money, were intended and understood by both parties as the consummation of the sale by the one, and the purchase by the other.
3d. That the omission to insert in the deed or mortgage, or a separate instrument, any stipulation with reference to a survey to be had of the land, or the allowance or endorsement for deficiency, was not the result of any mistake of fact, or of inadvertence from the subject not occurring to the mind of the complainant; but that the subject of such survey and deficiency was present to his mind during the drawing of the papers, and that the deed was drawn without the words “ more or less,” with the idea that it would operate as a guaranty of the quantity. That the parties knew the contents of all the papers executed; that all were executed and exchanged without any oversight or mistake of fact, in the very form intended by all the parties, and that they contained all that the parties intended should be contained in any written evidence of the transaction between them.
[364]*364It is not denied that, upon the face of the papers executed, and according to their legal effect, the complainant took the farm at his own risk as to quantity. — Roat v. Puff, 3 Barb. 553, and cases there cited. If in accepting the deed and exchanging papers, he did not intentionally abandon all claim of compensation for deficiency, he must have relied either, first, upon the quantity mentioned in the deed as a guaranty, or second, wholly upon the contemporaneous verbal agreement, or third, upon both together.
If he relied upon the first, it was a mistake of the legal effect of the instrument, the contents of which he knew — purely a mistake of law. This is no ground for relief. — See Irnham v. Child, 1 Bro. C. C. 92; Townsend v. Stangroom, 6 Ves. 328, 332; Worrall v. Jacob, 3 Meriv. 267, 271; Hunt v. Rousmaniere, 1 Pet. S. C. R. 1; 2 Mason, 366; Gilbert v. Gilbert, 9 Barb. 532; Arthur v. Arthur, 10 Barb. 9; Farley v. Bryant, 32 Me. 474; Mellish v. Robertson, 25 Vt608.
He can have no relief upon the ground of the verbal agreement alone, or in connection with the deed; because, first, to say nothing of the statute of frauds, it was a part of an entire contract for the sale of the land, made immediately preceding, and contemporaneous with the deed and other papers executed in consummation of the sale, and related to its very terms. It was, therefore, merged in, or cut off by the deed and other writings by which the sale was consummated, and which must, in the absence of fraud, be presumed to contain all the terms finally agreed upon.— Street v. Dow, Harr. Ch. 429; Stevens v. Cooper, 1 Johns. Ch. 429; Stark. Ev. 660 to 665; 1 Greenleaf's Ev. Sec. 275; Cowen and Hills notes to Phil. Ev. Note, 948; and see especially Broughton v. Coffer, 18 Gratt. 184.
2d. Because the parol agreement would tend to contradict and vary the notes and mortgage given by complainant at the same time as a part of the same transaction.— [365]*365Jones v. Phelps, 5 Mich. 222; Adair v. Adair, Id. 204; Stevens v. Cooper, ubi supra; Cook v. Combs, 39 N. H. 593; Oelricks v. Ford, 23 How. U. S. 49; Crosier v. Acer, 7 Paige, 141; Austin v. Sawyer, 9 Cow. 39, 49; Dix v. Otis, 5 Pick. 38; Powell v. Edmunds, 12 East. 6; Noble v. Bosworth, 19 Pick. 314; Conner v. Coffin, 22 N. H. 542-4; Gregory v. Hart, 7 Wis. 532 ; Hoyt v. French, 24 N. H. 199; Lang v. Johnson, Id. 302; Hoxie v. Hodges, 1 Oregon, 251; Underwood v. Simonds, 12 Metc. 278; Adams v. Wilson, Id. 138; Richardson v. Comstock, 21 Ark. 69; Oskaloosa College v. Stafford, 14 Iowa, 152; Parsons on Bills and Notes, 501, 503.
And this rule applies as well in equity as at law.— Wesley v. Thomas, 6 Har. and Johns. 24; Chetwood v. Brittain, 1 Green Ch. 439; King v. Baldwin, 2 Johns. Ch. 557 and 558; Eveleth v. Wilson, 15 Me. 109; Richardson v. Thompson, 1 Humph. 154.
The cases of compensation for deficiency, relied upon by complainant’s counsel, are mainly those arising upon contracts of sale or purchase not yet carried into effect, by the execution of the final conveyance and other writings essential to its completion; and where the vendor has filed his bill for the execution of the contract, and the defendant has set up fraud, or mistake in quantity, or the omission in the writing, of terms verbally agreed upon, or a parol variation or discharge (as in Winch v. Winchester, 1 Vesey & Beames, 375, and other cases mentioned in Story’s Eq. Jur. Sec. 170,) or, when the bill has been filed by the purchaser for the execution of the contract, for so much as the vendor is able to convey, or for so much as there is of the land (fraudulently represented by the vendor, and believed by the purchaser to contain more,) and for compensation for the deficiency, as in Hill v. Buckley, 17 Ves. 395, upon which complainants’ counsel relies. Bills for specific performance in such cases, and defences thereto, stand upon principles so essentially different from those involved in the present case, as to require no comment.
[366]*366Belknap v. Sealey, 2 Duer, 570, cited by complainant’s counsel, was an action in the nature of a bill in equity, brought by the purchaser to rescind a contract for the purchase of land on the ground of a fraudulent representation of quantity, and sustained on the ground of mutual mistake. One of the express grounds upon which relief was giren, as appears by the opinion of Emmett J., was that the contract or sale was yet in fieri, and therefore strictly within the equitable powers of the court.
It is true courts hare not laid it down as an absolute rule that no relief shall be giren for a deficiency, when the contract has been carried into effect by a deed. Marvin v. Bennett, 26 Wend. 169, was a bill brought for relief on this ground, after conreyance of the land and mortgage giren back; and it was held that the bill could only be sustained on the ground of mistake or fraud, neither of which was established in that case, and the relief was denied.
The court recognized the fact that much stronger and clearer evidence is required of the mistake in such cases, than when the matter rests in contract of sale, and seem to think the evidence must be such as to remove all doubt; and they hold, in that case, that complainant’s attention haring been distinctly called to the question of quantity, and of a guaranty upon that subject, and baring-accepted the deed without such guaranty, and executed the notes and mortgage, took the chance of a deficiency or excess, and must be held virtually to have abandoned any claim for deficiency.
In the case now before us, no fraud is imputed to the defendant. The parties dealt with each other upon equal terms. There was no mistake in the execution of the papers intended to be executed. And by accepting the deed, executing the notes and mortgage, a'nd going into possession under the deed, with full knowledge of the contents of all the papers, and the question of deficiency [367]*367present to Ms mind, and 'without asMng for any written evidence of the supposed parol understanding, we think the whole contract must be conclusively presumed to be embraced in the papers executed. See Howes v. Barker, 3 Johns. 506; Schermerhorn v. Vanderheyden, 1 Johns. 140; Houghtailing v. Lewis, 10 Johns. 297; Mumford v. McPherson, 1 Johns, 414; Broughton v. Coffer, 18 Gratton, 184. We think the alleged verbal agreement in this case stands upon no better ground than would a parol reservation of growing crops on the land conveyed.
The decree of the court below must he reversed, with costs, and the hill dismissed.
The other Justices concurred.