1 Ala. 415 | Ala. | 1840
— There is not entire harmony in the decisions'touohing the right of the purchaser of lands, to be compensated for a defect in the'quantity of the estate, and in considering ithe question, we derire to be understood as expressing no opinion beyond what the facts of the present case require. The inquiry to be made is, do these words, viz: “The whole of the within described lands, contain in all, twelve hundred and sixty-eight and seventy-one hundredths acres,55 amount to a stipulation on the part of the defendant in error, that the land, the consideration of the note sued on, contains that precise quantity.
No particular form of words is necessary to constitute a covenant: any words will be effectual, which show that the parties to a deed, have concurred and assented to the performance or forbearance of a future act, or which show that the vendor has stipulated as to the quantity or quality of property sold by him: Marshall v. Craig, (1Bibb’s Rep. 379}) and in Bond v. Jackson.
In the construction of deeds, it is the duty of the court to give éffect to every sentence and word, if it be practicable. The land, we haVe seen, vVas very fully described before the introduction of the clause vve are examining, so that it cannot be held to be descriptive. We then, Cari assign to it no other office, than to determine that it is a covenant- as to quantity; and being so, the plaintiff is entitle'd to be compensated, if it has been ascertained by admeasurement, that there is a deficiency.
It has been intimated that the case of Dozier v. Duffee [at the last term] is an authority adverse to the opinion we have expressed. That case as understood by us, is entirely unlike the
In Fleet v. Hawkin, 6 Mumf. Rep. 188, it was decided that though the purchaser of a tract of land, agree to pay so much per acre, yet if he also agree to take it by the patent or survey already made, as fixing the number of acres in the tract, he thereby takes upon himself the risk as to the quantity, and is-not entitled to compensation for any deficiency, nor chargeable for an excess. To the same effect are Bond v. Quattlebaum, 1 McC. Rep. 584; Hoffman v. Johnson, 1 Bland’s Rep. 109; Quesnel v. Woodliff, 2 Hen. & Mumf. Rep. 173—4; Pringle v. Samuel, 1 Litt. Rep. 44. So in Brown v. Parish, 2 Dana’s Rep. 9.. — it was determined that where a party, for a sum certain, sells a tract of land without stating or stipulating for the quantity; though it contain twice as much as the vendor suppose, he must abide the consequence of his inadvertency, and cannot claim of the purchaser, payment for the excess. And thought he authorities as to the meaning of the words “ more or less,” when used in a bond for title, or in a deed of conveyance, in reference to quantity, are somewhat contradictory, yet they have some times been holden to mean that the parties are to run the risk as to gain or loss, according as there may be an excess, or a deficiency in the estimated quantity. (Yonng v. Craig, 2 Bibb’s Rep. 270; McCown v. Delany, 3 Bibb’s Rep. 46.)
The authorities cited, clearly show the correctness of the decision in Dozier v. Duffee, and the want of analogy between that ease and the present. The .fact that our .lands in .this country,
Without attempting to add anything farther; our conclusion is, that the judgment of the circuit court must be reversed and the case remanded.