State for use, etc., v. Keller. 155 acres. Complainants sue to recover for the value of the surplus over and above the 125 acres at the agreed price, on the ground that they have by mistake lost this much land. The sale was made January 12, 1871, and confirmed February term after. The first question presented is raised by demurrer to the jurisdiction of the chancery court. The suit is for breach of the official bond of the surveyor, which, by Code, sec. 436, is conditioned "for the faithful performance of his duties as surveyor." It is urged that this cause of action is not within the jurisdiction of the chancery court under the act of 1877, increasing that jurisdiction, but is purely an action for tort, and the recovery unliquidated damages. We have held, however, at the present term, in the case of Glenn v. Moore, 11 Lea, 256, that a clerk of the circuit court was liable on his bond for failure to take proper surities on supersedeas bonds, whereby a quantity of whest levied on by an execution was released and its proceeds lost. We are unable to distinguish that case in principle from this. Then the measure of recovery was the value of the property released by the wrongful act. In this, if the theory of complainant's bill be maintinable, it is the value of the land of which they claim to have been deprived by the sale, in excess of the amount shown by the survey made by the county surveyor. The tort is waived and the debt sued for, as is implied in the plea of the statute of limitations of six years urged by defendants. 26-VOL. 11. State for use, etc., v. Keller. or It is not a case for injury done "to person property" within the language of the statute, as in the case of a trespass, to the one or the other, but is the case of loss accruing by reason of alleged breach of duty, which is measured by the value of the property assumed to be lost, and that is a matter of easy computation in the chancery court, by the ordinary mode of reference to the clerk. The next question is, as to statute of limitations, based on the idea that an amendment was allowed to be inserted describing the suit, in which the survey was had, correctly, there having been a misdescription in the original bill. That bill charged that the proceeding in the county court was a petition by the widow for dower and the partition of the lands of her husband. It turns out that the suit was in fact by a part of the heirs and against the widow and other heirs, and the chancellor allowed an amendment stating the facts as they were. This was not the introduction of a new cause of action, but only one that more certainly described the proceeding out of which the original cause of action grew. The survey was made of the veritable land now involved, and this survey is the gist of the complaint, not the precise title of the suit in which it was done. There is nothing in this point, and this defense fails. This brings us, however, to the main issue on the merits. Have the parties suffered a legal loss, or been deprived of the land included in the survey, in which it is conceded there is the mistake alleged ? State for use, etc., v. Keller. The mistake is charged to have been discovered by a re-survey of the land, and report made in a case in which the administrator of the purchaser, Caine, sought to have the land sold; said report was made May, 1875, about four years after the survey. It is distinctly charged in the bill that the sale to Caine was made by the acre, and the recovery is sought for the amount involved in the mistake at the rate at which the land was then sold. In a word, the theory of the bill is, that the parties have been deprived of this amount of land by the error of the surveyor, by reason of the fact that, when sold, the title was conveyed to the purchaser of the entire tract, and they thus deprived of the same. Our cases settle the rule to be, that where there is a sale by the acre, and a substantial deficiency in quantity, the purchaser will be entitled to an abatement for the deficiency: Miller v. Bentley, 5 Sneed, 671; 1 Head, 237; 4 Baxt., 228. It would seem to be a correlate of this rule, that if the purchaser by the acre, by mistake obtains a substantial surplus over and above what he supposes he buys, and the other party supposes he is selling, that he should not be entitled to retain this advantage. The rule should be of equality as to both vendor and vendee. So it was held in the case of Barnes v. Gregory, 1 Head, 237. Relief was also given in like circumstances in Horn v. Denton, 2 Sneed, 125, and Williams v. Bradley, 7 Heis., 55. From these cases it is clear the parties, on the statement of facts as charged, could have either compelled the purchaser to pay for the surplus in State for use, etc., v. Keller. cluded by mistake in the boundaries as shown in the survey, or to have had the surplus decreed to them as was done in Williams v. Bradly. These principles conceded, it follows that complainants had not been deprived of the legal right to this land in 1875, when they discovered the mistake, and so had legally not lost it as the result of the mistake in the surveyor. Had the statute of limitations run against their right, and they been without fault in not discovering the mistake sooner, the case might have been different. The complainants are entitled to recover the costs of the erroneous survey, and if they had been compelled to sue for the assertion of their rights as to the excess of land, the legitimate costs of that suit might have been recovered, and so they would have been made whole and received the proper compensation for the wrong done them. They have not brought such suit, however, therefore cannot have the latter relief. It being settled that a party purchasing by the acre is not entitled to retain a surplus such as is found here, but must pay for it at the rate paid for the number of acres actually bought by him, the question is, what remedy has he in the case of a judicial sale, after confirmation and divestiture of title? In the case of Horn v. Denton, where the above. relief was given after confirmation, but before divestiture of title, the proceeding was by supplementary bill or petition in the case, making the purchaser a party, he answering the allegations, and proof being State for use, etc., v. Keller. see taken. The writer of this opinion is unable to why the fact that a final decree has been has been made divesting title should make any difference as to the rights of the parties. It might as to the mere form of the remedy, or rather name of it, as it is named a supplementary petition in that case, but in fact was simply a new bill filed against the purchaser, seeking to set up an independent equity against him. The sale had been completed by confirmation, and the purchaser entitled to demand the title to all he had purchased upon payment of the purchase money. What good reason there can be why this equity might not as well be asserted, upon allegations showing the facts after complete execution of the contract, as well as before, I am unable to see. It may well be doubted whether in strictness or at all a bill of review would lie in such a case. The purchaser is not a party to the original cause, is only a quasi party, that is for certain purposes incident to his purchase, as as for enforcement of purchase money, or subject to any decrees that might be necessary in order to complete his purchase. Be this as it may, however, the parties might find difficulties in bringing themselves within the requirements of a bill of review. There is no error in the face of the decree. No new matter has arisen in time since the decree. Is there new testimony come to light after the decree, which could not possibly have been used when the decree was made? This is the only other ground for a bill of review. The fact of the boundaries of the land, with all |