Quarg

The plaintiffs in October, 1890, entered into a written agreement to sell defendant a tract of land for two thousand dollars. In the contract the land was described by metes and bounds and as “containing about forty acres, more or less.” Defendant made the first payment, five hundred dollars, on the purchase price and several annual payments of fifty dollars each and interest on the balance of the agreed purchase price for several years. Soon after these payments and in the latter part of 1893 or first part of 1894, the defendant having been in possession of the land for some time, and having cleared some four or five acres of it, and made other improvements, began to suspect that the tract did not contain forty acres, and in March, 1894, procured the county surveyor to survey the same, and on such survey it was ascertained that there was but twenty-three and a half acres in the tract. The defendant thereafter, as the evidence shows, on two occasions, in October and December, 1894, tendered the plaintiffs more than the balance then due to them for the land, estimating it at fifty dollars per acre for twenty-three and a half acres, together with interest, and demanded a deed, and…