¶1On the bill in this cause for relief respecting the quantity of land conveyed by a deed, and presenting two inconsistent baises of recovery, fraudulent representation on the part of the vendors as to the quantity of land conveyed1, and loss of a part of it, by superior title, as actually conveyed, the trial court ascertained loss of the land conveyed to the extent of twenty four and one half acres, and decreed compensation therefor at the rate of eight dollars per -acre which, with interest thereon up to the date of the decree, amounted to $342.51. Assigning several errors, the defendants have appealed.
¶2The demurrer to the bill was properly overruled. The charge of fraud and misrepresentation on the part of the vendor as to the quantity of the land, supplemented by the allegation of deficiency, makes out a case of equitable cognizance. Newman v. Kay, 57 W. Va. 98; Newberger v. Wells, 51 W. W. Va. 624; Kelly v. Riley, 22 W. Va. 247. If the .claim for compensation for land lost by superior title, is a legal demand as counsel for the appellants contend, joinder thereof with the equitable cause of action, founded'upon fraud and misrepresentation, does not render the bill bad. Sprinkle v. Duty, 54 W. Va. 559; Smith v. Patton, 11 W. Va. 541 and Smith v. McLain, 11 W. Va. 654.
¶3Said second ground contains no element of fraud or mistake, giving concurrent jurisdiction at law and in equity. The loss of a portion of the land by superior title was a breach of the covenant of warranty, wherefore it states a cause of action for damages for breach of a contract. That equity has no jurisdiction in such cases is fundamental and elementary. Robertson v. Hogshead, 3 Leigh 667; Laidley v. Laidley, 25 *566W. Va. 525; Meze v. Mayes, 6 Rand 660; Anthony v. Leftwich, 3 Rand 328. It was virtually held in Kelley v. Riley, 22 W. Va. 247 that equity has no jurisdiction of an action for compensation for loss of land by superior title, and Robertson vs. Hogshead, cited, denies equity jurisdiction to give compensation for breach of a warranty as to the quantity and capacity of a spring on a tract of land.
¶4On the proof, the good part of the bill wholly fails. There, was no misrepresentation as to the quantity of the land. The amount contracted for was actually conveyed, but a portion of it was afterwards lost. The tract conveyed was one of the lots assigned in a partition of a tract of land among the Wriston 'heirs. At the date of the partition, one of these heirs was under age and, after having attained his majority, brought a suit for a repartition. Before this occurred however, the land involved here had been conveyed to Mary E. Cregor, by the Wriston heir to whom it was assigned, as a tract containing one hundred acres. After the death of Mary E. Cregor, her heirs united in a deed conveying that tract to J. S. Lewis. He was made a party to the suit for repartition, the result of which was that he was compelled either to lose 241/2 acres of t'he land or repurchase it, a sale of the property having been ordered on account of its. insusceptibility of partition. Having this right of election, he chose to buy it and did so.
¶5The part of the bill to which the proof responds is mere surplusage and in law constitutes no part of it. Sprinkle vs. Duty, Smith vs. Patton and Smith vs. McLain, all cited.. Obviously, therefore, the bill is without equity and the decree must be reversed and the cause dismissed, unless the matter set forth in the answer as ground for affirmative relief confers equity jurisdiction.
¶6The matters so set out are fraud and misrepresentation in the procurement from the Cregor heirs of a deed with a covenant of general warranty. It avers the Cregor heirs had agreed to execute a quit claim deed to^ Richard Cregor who was then to convey to Lewis, and that Lewis, through his agent, had represented to them that the deed he caused to be tendered to them for execution was a quit claim deed. In the portion. *567of the bill that states an equitable cause of action, the warranty is wholly immaterial and really constitutes no part of it. A suit for compensation, for a deficiency is founded upon the fraud or mistake alleged, not the covenant of warranty. That covenant does not warrant quantity. It pertains only to title. This new matter in the answer relates to the warranty, not the quantity of the land. Thus responding to the bad part of the bill and not touching the subject matter of the sufficient portion thereof at all, the answer endeavors to introduce a subject wholly foreign to that of the bill, in violation of a. firmly established rule. The subject matter of a cross-bill or answer in the nature of one must be germane to that of the bill. Peters v. Case, 62 W. Va. 33; Hansford v. Coal Co., 22 W. Va. 675; West Va. O. & O. L. Co. v. Vinal, 14 W. Va. 637. Being foreign thereto and, for that reason, having been improperly filed, the answer falls with the bill.
¶7Reversal of the decree and dismissal of the bin without prejudice necessarily result from these principles and conclusions.
¶8Reversed and Bill Dismissed.