The vendor fraudulently makes a false representation to the purchaser, as to the quantity of land contained in certain boundaries, asserting the same to be as much as four hundred and ten acres, when in fact, there were only two hundred and eighteen acres; Can an action of deceit be maintained for this fraud ?
The question is fully answered by the case of Lytle v. Bird, 3 Jon. 222, and the cases there cited.
, In that case, the vendor showed to the purchaser one hundred and sixty-three acres of land, which he represented to be a part of the tract he was selling, when he knew that it was not included in his boundaries, and did not belong to him. It would be difficult to find a case more like ours. The vendor certainly stands in a very unfavorable light, yet the Court say, “ the mode and facility of ascertaining the truth was open to the plaintiff equally with the defendant by a survey, which he ought to have insisted upon before receiving the conveyance; it was his own folly not to have done so.”
So in our case, if the plaintiff has sustained any loss, he must attribute it to his own negligence and indiscretion; he has not exercised that diligence which the law expects of a reasonable and careful person, but was wilfully ignorant of that which he ought to have known. He might have ascertained the fact by an actual survey, or taken a covenant as to quantity. Vigilantibus non dormientibus jura subveniunt.
Per Curiam. Judgment affirmed.