3 Barb. 353 | N.Y. Sup. Ct. | 1848
By the Court,
There is but a single point in this case, and that turns upon the construction of a single sentence in the deed upon which the aption is brought. The deed contains covenants of warranty, and the premises are described by metes and bounds, giving courses and distances on all sides of the premises but one, and upon that side the description is as follows: “ Thence up the said creek northwestwardly along the channel thereof to the west line pf said lot.” There is no complaint of any ambiguity in this description. The deed, after .describing the premises by metes gad bounds, has the following
The case of Mann & Toles v. Pearson, (2 John. R. 39,) was decided three years afterwards. It was an action of debt upon a bond given by the defendant by which he agreed to convey to the plaintiffs lot No. 78, in the township of Lysander, &c. containing 600 acres. A deed was executed accurately describing the lot, and concluding the description with the following words, “ containing 600 acres be the same more or less.” The lot, upon actual survey, was found to contain only 421 i acres. It was held that the statement of the number of acres, in the bond, was mere matter of description, and that a delivery of the deed for the lot of land by its usual description was a full performance of the condition of the bond. Spencer, justice, in giving his opinion in the case says: “ I am then brought to consider whether in a deed containing covenants of seisin, and in which the land granted is definitely described, either by metes and bounds, or as a lot distinguished on record, an erroneous estimate of acres furnishes a ground of action on the covenant of seisinand after a reference to a case in 13 Vin. 79, he concludes: “ The enumeration of quantity is not of the essence of the contract; it is matter of description merely. The only certainty in the present case is the lot, and that alone is the subject of the covenants ; and I will only add that, in my own experience, and I may say with propriety, in the universal opinion of conveyancers, the enumeration of quantity, after a description of the subject, is superfluous and immaterial, and in any view only matter of description.”
The same question came before the supreme court of Massachusetts in September, 1809, only one year after the decision of the above case, and that court affirmed the same doctrine. See the case of Howe et al v. Bass, (2 Mass. R. 380,) in which the learned Chief Justice Parker delivers the opinion of the court, and cites the case of Mann and Toles v. Pearson, supra, with
The doctrine of this case was affirmed by the supreme court of this state in 1818, in the case of Jackson v. Barringer, (15 John. R. 471,) and the case itself was cited. The unqualified doctrine of the case was again affirmed by this court in 1827, -in the case of Jackson v. Moore, (6 Cowen’s R. 706.) Justice Sutherland, who delivered the opinion of the court in that case, says: “ When a piece of land is conveyed by metes and bounds, or any other certain description, all within those bounds or that 'description will pass, whether it be more or less than the quantity stated in the deed. And when the quantity is mentioned, in addition to a description of the boundaries or other certain designation of the land, without an express covenant that it ‘contains that quantity, the whole is 'considered as mere descrip'-tion. The quantity being the least certain part of the description must yield to the boundaries or number, if they do not agree.” The doctrine of these cases has been steadily followed ;by the courts of this state. In the case of Jackson v. McConnell, (19 Wend. 175,) the deed which conveyed the land described it as beginning at a well known point, giving courses and distances, and then concluded as follows, “ containing 200
It being the settled law of the case that the affirmation of quantity, at the close of the description of the premises in the deed, is not to be regarded as a covenant of quantity, but merely as matter of description of the premises; the only remaining question is which shall control in the description ? or in other-words, to which do the covenants of warranty in the deed apply, to the quantity expressed in the deed, or to the- premises described therein by metes and bounds 1 I take it to be well settled that the descriptive boundaries control the quantity as being the most certain ; as it is much more likely that a party purchasing, or selling land, should make mistakes in respect to-course, distance, and quantity, than in respect to visible objects,which latter being mentioned in the deed are presuSied to have been examined by the parties. (2 Mass. R. 383. 5 Id. 355. 6 Id. 131. 6 Conn. R. 706. 4 Wend. 58. 1 Cowen's R. 605. 15 John. R. 471. 2 Id. 37. 6 Wheat. 580. 5 Wend. 142. 4 Wheat. 444. 6 Hill’s R. 457. 8 Wend. 183. 13 Id. 157.)
It has been suggested as a difficulty in this case, in giving this construction to the deed, that we do not pay proper respect to the rule for which Lord Hobart so much commended those judges that adhered to it; and which was in effect that they should be astute to invent reasons to construe acts according to the intent of the parties. But I do not think that the view
I do not see how we can read this covenant as extending beyond the premises actually described by metes and bounds in the deed. There are in truth no other premises described in the deed than those embraced within the limits of the descriptive boundaries of the deed. And upon the argument of this cause, as I ran my eye through the description of the premises as contained in the deed, and passed on to the covenants of warranty, the idea struck me with great force that these covenants could never be so construed as to make them applicable to this affirmation of quantity at the conclusion of the description; and upon further examination and reflection I am confirmed in that opinion. I‘think, for the reasons above stated, that the judgment of the Tompkins common pleas should be affirmed.
Judgment affirmed.