566 BROWN v. WALLACE.—2 BLAND,

Mort. 547, n. R. If, on the other hand, their title to the lands,
described in that deed was not sold by the trustee to Freeborn
Brown, then he has nothing to complain of; and the whole affair
is entirely foreign to the matter now under consideration. This
objection is therefore utterly groundless.

Another point upon which this purchaser rests is, that he bought
by the acre, and that the trustee represented the tract which he,
Brown, bought, called Gover's Eupulta, as containing one hundred
and forty-three acres, when in truth it did not contain quite one
hundred and twenty-seven acres; and therefore, that he ought to
have a deduction to the amount of this deficiency.

It is not alleged, that the deficiency is in that part of the lot
which was the inducement to the purchase; or that it is of such a
nature as materially to vary the contract, it is merely a claim for
an allowance on account of short measure; as if by the terms of
the contract a measurement was absolutely necessary to reduce
it to certainty and to ascertain the amount of the purchase money
to be paid.

The position here taken rests upon an assumption of the fact,
that the land was sold only by the acre; or in lots of an indefinite
size at $23 per acre. But according to the trustee's report, such
was not the fact; and there is no satisfactory proof that it was
sold iu any other manner than as there stated. In the absence of
clear proof of mistake, misrepresentation or fraud, the ratified re-
port of the trustee is the only evidence of the contract by which
the Court can allow itself to be governed; and unless it be so im-
peached, it must be considered as conclusive upon the subject.
Townshend v. Stangroom. 6 Ves. 328; Higginson v. Clowes, 15 Ves.
516; Clowes v. Higginson, 1 Ves. & Bea. 524. *It is stated
596 by the trustee, that he caused the lands to be laid off into
several distinct parcels, described by metes and bounds and num-
ber of acres; and that he sold them in that manner; each parcel
as a separate body of land for an amount ascertained by the num-
ber of acres said to be contained within the specified metes and
bounds; and not by the acre alone, or in lots Nos. 1, 2, 8, &c.
of an indefinite size, without reference to boundary, or other more
particular description, at so much by the acre, so as to render a
measurement indispensable necessary to ascertain the amount of
the purchase money. In England, a commission may be issued to
ascertain the quantity where the contract is to pay by the acre, and
the quantity is uncertain; Shovel v. Bogan, 2 Equ. Ca. Abr. 688;
but here it has always been the practice of this Court, where its
trustees has made a sale at so much per acre, as a matter of course,
to order a survey to ascertain the quantity of land and thereby the
amount of the purchase money. Carter v. Campbell, Gilmer's Rep.
159.