The opinion of the court was delivered by

This was an action to recover a small balance appearing to be due upon a bond given for the purchase money of a tract of land sold by the plaintiff, at a judicial sale made by *219him as sheriff. The defence was that the defendant had been induced to purchase by reason of a representation made on the day of sale, that the land contained a greater number of acres than was found to be the fact by a resurvey, and an abatement of the price to the extent of such deficiency was claimed.

It appeared that the land was sold under proceedings for partition, and the record of such proceedings, which was introduced in evidence, showed that the land was described in the complaint as a tract containing one hundred and seventy-five acres, more or less. ■ It Avas also so described in the advertisement and in the sheriff’s deed; and it furthermore appeared that the land was sold as a tract and not by the acre.

At the trial the defendants proposed to prove “ certain verbal representations made by the sheriff at the time of the sale in reference to the quantity of the land,” which the Circuit judge ruled to be incompetent. To this ruling exception was duly taken, and this constitutes the sole ground of appeal. We agree with the Circuit judge that the proposed testimony was incompetent.

As we have just held in the case of Mitchell v. Pinckney,* the true ground upon which purchasers at judicial sales of land can claim an abatement of the price by way of defence to an action for the purchase money, is fraud or misrepresentation; but such misrepresentation must be of such a character as would be likely to mislead, and must, in fact, mislead the purchaser. As was said by Johnson, J., in Means v. Brickell, 2 Hill 665-6, in speaking of this doctrine: “ Great care should be taken that in its application it should be confined to its legitimate objects, and that trivial circumstances should not be allowed to set aside or damage Avritten contracts Avhich have been solemnly entered into between the parties, and some useful hints have been throAvn out in Frazier v. Harvey, 2 Bail. 270. For example, Avhen the misrepresentation complained of is as to the quality of lands sold, or the quantity, when it has not been ascertained by admeasurement or some other certain rule, or the relative quantities of the different description of highland and swamp, and other matters founded merely on opinion; for a purchaser is not liable to be *220imposed on by the opinions of the seller; and if he is, when he has the same means of forming an opinion for himself, it is his ■own folly, from which he cannot and ought not to be relieved.”

Now, in this case the verbal representations of the sheriff in regard to the quantity of the land, must either have been a mere expression of his opinion as to the actual number of acres which the tract contained, which would not be competent, (Frazier v. Harvey, 2 Bail. 269,) there being no evidence that any plat was •exhibited at the sale by which the land was sold, or such representations would amount to a contradiction o'f the terms of the sale, as written and published in the advertisement; for, as we have seen, both in the pleadings in the action under which the order of sale was made and in the published advertisement of such sale, the land was represented as containing an uncertain number •of acres by the use of the terms “ more or less,” and certainly the sheriff could not, by any verbal declarations that he might make, •contradict those terms. We think it clear, therefore, that, under the circumstances of this case, any verbal representations which the sheriff may have seen fit to make on the day of sale in regard to the quantity of land, were not such as were calculated to mislead a purchasér; and we may add, from the testimony in this case, it is difficult to understand how the purchaser could have been misled in regard to the quantity of the land he was buying by any such representations, as he seems not only to have been a surveyor himself, but to have actually made a partial .survey of this very tract before the sale, and, as it is reasonable to suppose, was therefore much better qualified to form an opinion ■as to the number of acres contained in the tract than the sheriff.

The judgment of the Circuit Court is affirmed.