Minge v. Smith

COLLIER, C. J. — 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. [418] (3 Hayw. Rep. 189,) it was held, that although a deed describe lands by metes and bounds, yet if it add that it contain a precise number of acres, the words added amount to a stipulation, that there is that quantity; and any deficiency shall be compensated by a deduction from the purchase money. But in Powell v. Clark, (5 Mass. Rep. 355) it was ruled that where a deed conveyed land limited by certain monuments, lines and courses, with a clause as follows: “containing---acres, and--rods of ground,” the words expressing the quantity do not amount to a covenant, that the land contains that quantity, but are merely descriptive of the land. We have not had access to the volume in which Bond v. Jackson is reported, and from the brief note which we have of the case, it is difficlut to discover wherein the essential facts differ from those stated in Powell v. Clark. We apprehend,- however, the difference will on examinotion be found to be this: in the former case, the affirmation as to the number of acres is made after the description of the land was completed, while in the latter, it is a mere continuation of the deScriptio terree. Now in the case at bar, each parcel of the land is described according to the Government surveys, by the half quarter section, &c. and the most of them, by the number of ácreá it contains; and afterall this, in a sentence entirely distinct is the clatlse which is said amount to a stipulation, that the land sold contains iiüetve hundred and sixty-eight, seventy-one hundredthe acres. 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 [419] present. In that case the vendor executed his bond, conditioned to make good and sufficient titles to several tracts of land, ás soon as the vendee should pay the purchase money. The land was described in the condition, accordingto the government surveys, adding immediately after and in the' same sentence, with each particular parcel “ containing” a certain number of “acres more Or less.” Here we discover was a purchase according to the surveys known to the law, while, what is said in regard to quantity is mere matter of description, not intended to be punctiliously accurate as indicated by the employment of the terms “ more or less.” 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, [420] are surveyed and sold in virtue of the laws of Congress, requires that where sales are made according to the government survey’s, and these are taken as the standard of quantity, both the seller and the purchaser should be required to stand by their bargain, without.allowing a claim by either party for loss or gain. Where however, ¡the contract contains terms indicating an intention to stipulate for quantity, the law will give effect to it, and hold the parties liable to each other, according to their respective agreements. So if the contract is tainted with fraud, as if either has misrepresented, or made a fraudulent concealment as to quantity, the law will afford redress to the party aggrieved, [See Pringle v. Witten, 1 Bay’s Rep. 256; Gray v. Handkinson, Ibid. 276; Glover v. Smith, 1 Def. Rep. 433, Cannon v. Mitchell, 2 Def. Rep. 320; Tunno v. Flood, 1 McC. Rep. 122; Carter v. Campbell, Gilmer’s Rep. 159; Furman v. Elmore, 2 Nott & McC. Rep. 189; Peay v. Briggs, Ibid. 184; Smith v. Ware, 13 Johns. Rep. 257.] and the American edition .of Sugden on vendors with .the .cases cited in the notes page 230, et post, where the law in relation to the questions considered, may be found. Without attempting to add anything farther; our conclusion is, that the judgment of the circuit court must be reversed and the case remanded.