17 Ky. 16 | Ky. Ct. App. | 1824
Opinion of ttfe Court, by
ON the 25th of February 1805, the testator, James Speed, and John Hann, exchanged tracts of land, whereby, in consideration of a tract in Mercer county, received from Hann, the testator, Speed delivered- to Hann a tract in/Garrard, and by fui article of agree-
After this, and sjn the 22d of May 1805, the testator, James Speed, executed to Hann a deed of conveyance for the Garrard tract, therein describing it to contaiii two hundred and'-njne acres, more or less, and setting out the rnetes and bounds atlaige; but in this deed there is no covenant or warranty as to the quantity of acres.
Subsequent to the execution of this deed, Speed departed this life, and Hann brought an action of covenant upon the articles of agreement, against his executors.
The declaration sets out as much of the covenant as is necessary for the-purpose of the action, and contains an allegation averring the Garrard tract which Speed gave in exchange, to contain bat one hundred and ninety-three acres, instead of two hundred and seven acres, the quantity stipulated for by Speed in the arti-1 clcs of agreement.
Covenants performed, was pleaded by one of the executors, and by an agreement of the parties, he was a!lowed to avail himself, in defence, of any matter which might be regularly pleaded.
Upon the trial, the articles of agreement were react in evidence to the jury by’IIann; and after be had proved the deficiency in the quantity of acres, as charged in his declaration, the executor read in evidence, the deed of conveyance which was executed by the testator for the Garrard tract, and to which reference has been already made, and moved the court to instruct the "■jury, that if they were satisfied from the evidence, that the deed of conveyance was for the same land in the original article ofagreement mentioned, and the plaintiff (Hann) received said deed,- that the original contract v/as merged in said deed of conveyance, and that the plaintiff’s right of action, if any, would growoutof the1 deed of conveyance, and that he could not recover
A verdict was found by the jury in favor of Hann, and judgment da bonis.f ropriis entered against (he executors. To reverse that judgment, the executors Rave prosecuted this writ of. error with supersedeas,
Whilst delivering the op.mion.. of the.court, Lord Mansfield observed, that “this is not-an er.ror in judgment of the court in point of law, but a. mere mistake of the clerk;” and in support of that opinion, re-., forred to a case in ^Levi. 22^. where the same principle, had been.a.d.opted,.
Having disposed of the objections taken to the.mans, ner ip which thjg judgment was entered? we shall -notice the questions which were made in the court below, on. jhe motion of the executor for instructions to the jury.
The judgment must, therefore, be affirmed with costs and damages.