83 Ala. 251 | Ala. | 1887
— In Minge v. Smith, 1 Ala. 415, the bond for titles, after describing the lands by divisions and subdivisions according to the government survey, contained the following clause: “ The whole of the within described lands contain, in all, twelve hundred and sixty-eight and seventy-one one-hundredths acres.” It was held that this clause, being in a sentence entirely distinct from the description of the lands, was not descriptive, and, in order that it might have some office, that it was a covenant as to quantity. The general rule was recognized, that when there is a sale of lands according to the government survey, and these are taken as the standard of quantity, neither the vendor nor the vendee will be permitted to claim for loss or gain. While this case has not been in terms overruled, it has been more
In the deed made by appellee to appellant, the land is described as commencing at a designated point on the south bank of the Tennessee river, and thence up said river with its meanderings, and thence bounded by designated courses and distances and by the public road; and immediately following this description are these words,” “ and containing by survey two hundred and fifty acres in said tract.” There is no express averment of the number of acres, but the quantity is stated as ascertained by a survey previously made. On the authorities above cited, these words must be regarded as descriptive of the land, unless there is something which takes them out of the general rule. This is sought to be done by parol evidence, that the land was sold and purchased at thirty dollars per acre.
There were two tracts of land sold at the same time — one called the “river land,” and the other, the “mountain land.” Looking to the deed alone, both of these tracts were sold for a gross sum for the entire lands, and not at a specified price per acre. There is no pretense that the mountain land was sold by the acre. In the absence of allegation or proof of fraud or mistake, the deed is regarded as the sole memorial and expositor of the contract, which parol evidence is inadmissible to vary, contradict, or explain.— Winston v. Browning, 61 Ala. 80. Conceding that the appellant agreed to pay a stipulated sum per acre for the riyer land, if he
It is further insisted that, as the number of acres con- • tained in the mountain land is estimated in the deed, the exact number of acres being unknown, the difference in phraseology in reference to the quantity of the land shows an intention to constitute the statement of the number of acres a covenant as to quantity. The difference in language merely shows an agreement to sell the mountain land by an estimated quantity, and the river land by the quantity fixed by the previous survey. Construing the entire deed, its legal effect is not a covenant as to the quantity of the river land.
The evidence of the surveyor, Duckett, was properly excluded. The Tennessee river was the north boundary of the land. The ownership of appellee extended to the margin of the water at its ordinary stage, and the deed conveyed the land between high-water mark and the ordinary stage of the water.— Williams v. Glover, 66 Ala. 189. The surveyor states that he surveyed only to the top of the bank. Without connecting proof of the quantity of land contained between the top of the bank and the water at its ordinary stage, his survey does not tend to show the number of acres in the tract.
Affirmed.