The trial judge filed a written opinion, in which he used the following language:

"It is claimed that, because the contract and deed contained the words 'more or less,' therefore Koch took his chances as to the shortage, and should be denied relief. While this might be so as to a slight shortage such as would be covered by difference in surveys amounting generally to but a fraction of an acre, it is not the rule where land is purchased by the acre at an agreed price and the shortage is of considerable amount, as it is here, as will be seen by a careful perusal of the following authorities: Hodges v. Denny, 86 Ala. 226 (5 South 492); King v. Brown, 54 Ind. 368; Rathke v. Tyler, 136 Iowa, 284 (111 N. W. 435); Skinner v. Walker, 98 Ky. 729 (34 8. W. 233); Frenche v. Chancellor, 51 N. J. Eq. 624 (27 Atl. 140, 40 Am. St. Rep. 548); Cardinal v. Hadley, 158 Mass. 352 [33 N. E. 575, 35 Am. St. Rep. 492]. It is further claimed that Koch waived his right to take advantage of it after full knowledge of the facts. If he ever had full knowledge before he paid his money and took the deed, which is doubtful, he had no knowledge until after he had bound himself by the contract, and changed his circumstances so that it would be inequitable for Bird to raise this defense. Whatever may have been the rule in this and other States in the early history of our jurisprudence, it is now well settled in Michigan, at least in cases of this kind, a man is chargeable with fraud, where by his statements of facts he leads another to rely on the same and part with his money or property, and the rule is the same where there is an honest mistake as when there is actual intent to defraud. So in any event here the defendants must make good the representation as to the acreage of this farm. Holcomb v. Noble, 69 Mich. 396 [37 N. W. 497]; Aldrich v. Scribner, 154 Mich. 23 [117 N. W. 581, 18 L. R. A. (N. S.) 379], and cases cited. Koch purchased this farm by the acre, and was led to believe that he was getting 110 acres, and the fact that he was shown the lines does not alter the case in any way. He is entitled to a decree reforming the contract and to be compensated for the shortage with interest. But inasmuch as there may be a chance for slight mistakes in the survey, and in order that no injustice shall be done the defendants, the court finds the shortage to be five acres only and therefore the amount upon (which) interest shall

be figured will be $412.50. Complainant will recover his costs to be taxed. A decree may be entered accordingly."

Not only is here a case where the circuit judge saw and heard the witnesses testify, but upon a review of the evidence we fully agree with him upon the facts and conclusions found by him. We are of opinion that there was a mutual mistake of fact in respect to the number of acres in the farm which pervaded the whole dealing, including the making of the deed, and that this mistake was to an essential and material element of the contract. In so far as the sale of real estate is concerned, we think that this is a new question in this State, and we have therefore the more carefully examined not only the authorities cited by the learned circuit judge but other authorities as well.

Among the cases cited by the circuit judge is that of Rathke v. Tyler, 136 Iowa, 284 (111 N. W. 435). That is a unanimous opinion of the supreme court of the State of Iowa, and is a well-reasoned case. The court in that case draws the distinction between a sale in gross and a sale by the acre, which distinction seems to run through all of the well-considered cases. And it is there pointed out that there is really no distinction between executory and executed contracts as to what will entitle to equitable relief. We quote from that opinion as follows:

"It will be noted that the description is followed by the words 'containing one hundred acres, more or less.' These words indicate a sale in gross, even though the price stated may be an exact multiple of the number of acres mentioned; but they do not indicate an engagement that the purchaser took the risk, ipso facto, of the quantity of the land conveyed. In connection with a quantitive recital in the deed, they are to be construed as indicating that the acreage mentioned is approximately the number of acres within the metes and bounds, or subdivision, name, number, or lot by which the tract of land conveyed is designated. The expression cannot enlarge the boundaries mentioned in the deed. Poague v. Allen, 26 Ky. [3 J. J. Marsh.] 421; Brady v. Hennion, 21 Super. Ct. (N. Y.) 528. Nor do they have reference to the state of the title. Williamson v. Hall, 62 Mo. 405. They indicate that all the land

within the boundaries defined by the deed is included, and in the absence of other evidence, unless the discrepancy is great, that the parties to the instrument take the risk as to quantity. In such a case the expression is to be regarded as descriptive merely, and not as of the essence of the contract.

"But, where the discrepancy between actual quantity and that estimated is very great, the doctrine seems to prevail that a court of chancery will relieve on the ground of mistake. Nelson v. Matthews, 12 Va. 164 (3 Am. Dec. 620); Harrison v. Talbot, 2 Dana (Ky.), 258. This is on the theory that the difference is relatively so great as in itself, in connection with other recitals in the deed, to import the probability of a mistake having been made by the parties. Hill v. Buckley, 17 Ves. Jr. 394; Harrell v. Hill, 19 Ark. 102 (68 Am. Dec. 202); Couse v. Boyles, 4 N. J. Eq. 212 (38 Am. Dec. 514); Paine v. Upton, 87 N. Y. 327 (41 Am. Rep. 371); Smith v. Fly, 24 Tex. 345 (76 Am. Dec. 109); Pratt v. Bowman, 37 W. Va. 715 (17 S. E. 210); Bigham v. Madison, 103 Tenn. 358 (52 S. W. 1074, 47 L. R. A. 267), and cases collected. The risk taken is of a reasonable excess or deficiency only. Hosleton v. Dickinson, 51 Iowa, 244 (1 N. W. 550).

"But where the sale is by the acre, the differences presumed to have been contemplated by the parties are only such as are due to the errors incident to measurements by different surveyors and the variation in the instruments used, and the words 'more or less' in the deed are treated as words of safety or precaution merely, and intended to cover but slight and unimportant inaccuracies. Belknap v. Sealey, 14 N. Y. 143 (67 Am. Dec. 120); Hoffman v. Johnson, 1 Bland (Md.), 103; Triplett v. Allen, 67 Va. 721 (21 Am. Rep. 320); Oaks v. De Lancey, 133 N. Y. 227 (30 N. E. 974, 28 Am. St. Rep. 628). And this rule has been applied to executory contracts of sale in gross. Harrell v. Hill, supra; Hill v. Buckley, supra. But in Paine v. Upton, 87 N. Y. 327 (41 Am. Rep. 371), it was held that there is no distinction between executed and executory contracts as to what will entitle to equitable relief. In a case where the difference is slight as compared with the whole number of acres, the courts, inasmuch as the parties have expressed themselves as being satisfied, whether the tract be more or less, will not aid either party. Frenche v. Chancellor, 51 N. J. Eq. 625 (27 Atl. 140, 40 Am. St. Rep. 548). In the last case there

was a difference of but 1.58 acres in a tract of 195.98 acres. The authorities are numerous and will be found collected in 20 Am. & Eng. Ency. of Law (2d Ed.), 873 et seq., and 13 Cyc. 639. The result of their examination is that much depends on the circumstances of each particular case, though the decisions may be separated into two general classes treating of (1) sales by the acre and (2) sales in gross or by boundaries. Again, sales by the acre may be subdivided into (1) those wherein this is expressed in the conveyance, and (2) those wherein this was not so expressed, but such was the understanding of the parties. In both of these classes a court of equity will grant relief if it clearly appears that there is considerable excess or deficiency between the quantity actually conveyed and that named in the deed, even though this be followed by the words 'more or less.'

"Sales in gross or by boundary are divisible into three subclasses: Those strictly by the tract, with reference to negotiation or estimated quantity of acres; (2) those in which the quantity may be referred to in the contract, but this is only by way of description, and under such circumstances or in such manner as to show that the parties intended to risk all contingency as to quantity, however much the discrepancy might be; and (3) those in which it is reasonably probable, from the price stated, in connection with the value and the extent of the discrepancy, or from extraneous circumstances, such as locality, value, price, time, and the conduct and conversation of the parties that they did not intend to risk more than the usual rate of excess or deficiency in such cases, or than such as might reasonably be calculated on within the range of ordinary contingency. It is manifest that contracts within the first two subdivisions, in the absence of any proof of fraud, will not be interfered with by a court of equity, for the evident reason that the parties have intended to hazard the quantity regardless of the extent of any possible discrepancy. But under the third subdivision any unreasonable surplus or deficiency will entitle the injured party to equitable relief, unless in some way he has waived or forfeited this right to demand the same. The discrepancy in this case is not sufficient to bring it within this subdivision. The shortage was 6.49 acres in 100, and we have discovered no case declaring this so unreasonable as to justify relief. In Yearly v. Morris' Adm'r, 9 Ky. Law, 703 (6 S. W. 433), a description of 282 acres fell

short 20 acres, and the deficit was held insufficient, in the absence of proof that the sale was by the acre. While the words do not extend to a variation of one-half of the tract, as held in Lee v. Hester, 20 Ga. 588, or one-quarter, as decided in Smith v. Fly, 24 Tex. 345 (76 Am. Dec. 109), or to one-fifth, as declared in Gentry v. Hamilton, 38 N. C. 376, yet in a case like this it cannot well be said that the proportion may be greatly lowered below that in the last case, in view of the nature of the description, without impinging on what the parties may be assumed to have intendod. It will be observed that one of the boundaries is the middle of 'Mosquito creek.' This may be assumed to have a sinuous course, as is usual with streams of like magnitude, and two of the boundary lines extend to the middle of that stream, with their length not designated. In view of the uncertainties involved in these boundaries, and the fact that the deed was copied from that conveying the land to defendant, we are not inclined to say that the deficiency alone is such as to warrant the inference of mistake or fraud in the execution of the deed.

"The evidence, however, was such as to warrant the conclusion that, though a sale by the acre was not expressed in the deed, such was the understanding of the parties.

"Both supposed the acreage to be as represented, but were mutually mistaken. Precisely such a case was made out as brings it within the second subdivision of the first class mentioned, and under the rules laid down justify relief by a court of equity. The deficiency was substantial, not slight, and much greater than could have been contemplated as likely to arise from the incidental differences due to different measurements and instruments employed."

In addition to the authorities cited by the circuit judge, we add the following: Paine v. Upton, 87 N. Y. 327 (41 Am. Rep. 371); Belknap v. Sealey, 14 N. Y. 143 (67 Am. Dec. 120); Gallup v. Bernd, 132 N. Y. 370 (30 N. E. 743); Nelson v. Carrington, 18 Va. 332 (6 Am. Dec. 519); M'Coun v. Delany, 3 Bibb (Ky.), 46 (6 Am. Dec. 635); Hodges v. Kowing, 58 Conn. 12 (18 Atl. 979, 7 L. R. A. 87); Bigham v. Madison, 103 Tenn. 358 (52 S. W. 1074, 47 L. R. A. 267); Newman v. Kay, 57 W. Va. 98 (49 S. E. 926, 68 L. R. A. 908, 4 Am. & Eng. Ann. Cas.