(after stating the fasts). The court found that W. J. Robertson and I. A. Robertson by their warranty deed conveyed to Ed. B. Collier this same five acres of land, and that they did not have title thereto; that Ed. B. Collier had paid to W. J. Robertson the sum of $95.52 per acre, aggregating $477.60, for said five-acre tract of land. It was therefore decreed that he should recover this sum as damages for breach of warranty.
Counsel for W. J. Robertson seek to reverse the decree on the ground that Robertson sold to Collier 67 acres of land for the gross sum of '$6,400, and insist that the concluding part of the description in the deed shows that a shortage of five acres was not material. In other words, they claim that, the concluding part of the description, “and all the land conveyed by this deed aggregating 67 acres more or less”, implies that the acreage had *357been estimated, and that the words “more or less” were merely descriptive of the property conveyed.
The trouble about this contention is that counsel have not taken into consideration the description of the land by metes and bounds or by government subdivisions. It will be remembered that the theory of the appellees in filing their cross-complaint was not that Collier liad been induced to purchase the land 'by the false representations of Robertson in respect to the quantity which the tract contained.
The chancellor, who tried the case, granted the relief on the ground that Robertson had conveyed to Collier five acres of land, being the land in controversy, which he did not own, and that,, having executed a warranty deed to Collier, he was liable on his breach of warranty. The chancellor did not find that the actual quantity of land obtained by Collier was substantially less than lie supposed he was purchasing; but he found for him on a breach of warranty contained in the deed executed to him 'by Robertson. The parties are bound by their contract. The description in the deed from Robertson to Collier commences as follows: “All of the SW 1/4 of the SW 1/á of sec. 35, township 12 south, range 24 west, except three acres in southwest corner of same, being all of said tract lying north of the public road known as the Hope and Centerville public road.” The five acres in controversy, for which Mrs. Smithey was granted a decree of reformation, is included in the description just recited. Therefore, Robertson by his deed conveyed five acres of land to Collier which he did not own. He executed to Collier a warranty deed to said land, and is liable to Collier for breach of warranty. According to Collier’s testimony, he purchased the land at $95.52 an acre. It is true this statement is denied by Robertson, who testified the consideration was in gross, but the chancellor made a specific finding on this point in favor of Collier, and it'cannot be said that his finding is against the preponderance of the evidence.
The decree of the chancellor is correct, and will therefore be affirmed.