
78 S.E.2d 152 (1953)
238 N.C. 389
QUEEN et ux.
v.
SISK.
No. 172.
Supreme Court of North Carolina.
October 14, 1953.
*154 Charles C. Dalton and J. S. Dockery, Rutherfordton, for plaintiff-appellants.
M. Leonard Lowe, Forest City, for defendant-appellee.
BARNHILL, Justice.
The specific land to be conveyed other that that which was actually described in the deed executed by defendant and delivered to plaintiffs is entirely too uncertain to entitle plaintiffs to a decree of reformation or specific performance. They are relegated to their right, if any, to recover the amount erroneously paid defendant at the time the deed was delivered.
What are the rights of a purchaser of real property when it is discovered that his deed does not convey the number of acres recited in the description contained in his deed? On this question there are two distinct lines of decisions. Defendant relies on one line, plaintiffs on the other.
There is no conflict of decision. The distinction is factual. The courts merely apply one principle of law to one state of facts and a different principle to another and clearly distinguishable factual situation. Which line controls decision on this appeal? That is the real question presented.
Where a specific tract of land is purchased in gross for a lump sum or stipulated amount, the doctrine of caveat emptor applies. Foy v. Haughton, 85 N.C. 168; Peacock v. Barnes, 139 N.C. 196, 51 S.E. 926; Rickets v. Dickens, 5 N.C. 343; Zimmerman v. Lynch, 130 N.C. 61, 40 S.E. 841; Guy v. First Carolinas Joint Stock Land Bank, 205 N.C. 357, 171 S.E. 341; Turpin v. Jackson County, 225 N.C. 389, 35 S.E.2d 180.
When the description of the land conveyed contains a clause specifying the number of acres conveyed, this clause is considered simply as a part of the description. If the acreage actually conveyed is either more or less than the recited acreage, and the land the grantors intended to convey and the grantees intended to purchase is capable of being ascertained from the definite boundaries, monuments or courses and distances contained in the description, the clause reciting the number of acres in the tract will be rejected. Devlin, Law of Real Property (Deeds) Vol. 2, 3rd ed., p. 2027.
"Where the land is sold in bulk for a lump sum, then quantity is not generally of the essence of the contract and the parties take the risk of deficiency or excess, except in cases where there is actual fraud" or gross deficiency. 8 Thompson, Real Property, Perm.ed., sec. 4580; Guy v. First Carolinas Joint Stock Land Bank, supra; Turner v. Vann, 171 N.C. 127, 87 S.E. 985; Smith v. Grizzard, 149 Tenn. 207, 259 S.W. 537; Ross v. Brewer, Tex. Civ.App., 251 S.W. 307.
If the purchaser desires to protect himself in respect to the quantity of the land conveyed, he must either (1) calculate the acreage by the definite boundaries, courses and distances contained in the description, or (2) have the land surveyed, or (3) require proper covenants in his deed for his protection. Smathers v. Gilmer, 126 N.C. 757, 36 S.E. 153; Huntley v. *155 Waddell, 34 N.C. 32; Foy v. Haughton, supra; Guy v. First Carolinas Joint Stock Land Bank, supra.
Conversely, when the contract of purchase and sale is for an agreed number of acres at a stipulated price per acre and the purchase price can only be ascertained by multiplying the number of acres purchased by the agreed price per acre, quantity is of the essence of the contract. Patrick v. Worthington, 201 N.C. 483, 160 S.E. 483; Anno. 153 A.L.R. 4.
When a sale is consummated upon an acreage basis and there is a deficiency in the quantity actually conveyed, a court of equity will abate the value of the deficiency at the agreed price per acre. Duffy v. Phipps, 180 N.C. 313, 104 S.E. 655; Patrick v. Worthington, supra; 8 Thompson, Perm.ed., sec. 4580; Devlin, Law of Real Property (Deeds) Vol. 2, 3rd ed., 2029; Anno. 153 A.L.R. 34.
Where the purchase and sale is upon an acreage basis and the purchaser sues to recover on account of an alleged deficiency in the acreage and a consequent overpayment, he is not required to allege or prove fraud. The action to recover the excess payment is an action in assumpsit for money had and received to the use of the plaintiff, under the doctrine of unjust enrichment. Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365; Morgan v. Spruill, 214 N.C. 255, 199 S.E. 17; Simms v. Vick, 151 N.C. 78, 65 S.E. 621, 24 L.R. A.,N.S., 517.
Laches is an affirmative defense which must be pleaded. It may not be taken advantage of by demurrer.
Plaintiffs sue to recover an alleged overpayment made in the consummation of a contract of purchase and sale of real property upon an acreage basis. The line of decisions relied on by them is controlling and they have sufficiently stated a cause of action in assumpsit. Hence the judgment entered in the court below must be
Reversed.
