Pecare ex rel. Morrison v. Chouteau's Administrator

HAPTON, J. We do not consider this case as coming within the principle decided in Ferguson v. Dent, 8 Mo. R. 667; and Dryden v. Holmes, 9 Mo. R. 135. The covenant of seizen is an assurance to the purchaser that the grantor hath the very estate, both in quantity and quality, which he purports to convey'. The enumeration of quantity is not usually of the essence of the contract, but merely matter of-description. Yet a deed may be so framed as to make the enumeration of the acres granted of the essence of the deed; as where the boundaries can only be fixed by the quantity. Here, it will be observed, that Chouteau conveys a tract of 57 arpents. bounded on three sides by the lands of others, and on the fourth by himself. How is it possible to ascertain the metes and hounds of this tract, ■except by applying the quantity mentioned to ascertain the fourth line ? I do not perceive any other sensible construction of the grant, for as has been well observed by the counsel, a strip no wider than an ell or a peppercorn, would satisfy the description, if we can reject quantity. I look upon the quantity of 57 arpents as a part of the metes and bounds, as though the deed had described the three lines on the west, north and south, and then for the east line had fixed a point in the north or south line at such a distance as would give the quantity of fifty-seven arpents. Suppose the deed had so read, is it not clear that the previous conveyance to Clark of 14 47-100 acres on the east end would have been a breach of the covenant of seizen ? The cases in which quantity has been held mere matter of description, it will be observed, are cases where the specific tract conveyed was fixed by metes and bounds or by numbers, or in some other way so determined, as to place beyond doubt what tract ivas conveyed. Here the case is totally different. The grantor owns or supposes himself to own a large tract of land, and proposes to convey a part of it from one end. He convoys fifty-seven arpents 'from the west end of this tract, without determining the eastern line in any other way than by specifying the quantity. If the covenant of seizen is good for anything at all, in such a deed, it must cover the deficiency of quantity. It has never been doubted, that where a specific tract is conveyed, and a portion of the land iá lost to the vendee, ho can recover on his covenants. All the cases cited in support of the decision in the Court of Common Pleas, are cases where the purchaser has got all the land purported to be conveyed, and he desires to go further and make the covenants extend to mere matters of [378] description, as that a brick house was on the land, or it contained a certain number of acres. These cases are not at all analogous to the present.(a) Judgment reversed and cause remanded. Footnotes [a] (a) Not necessary to show an eviction — Dickson v. Desire, 23 Mo. R. 151.