Mann and Toles, against Pearson, 2 Johns. 37

Spencer, J. The plaintiffs, by suing for the deficiency of acres in the lot, admit, that the deed given by Caldwell, has been accepted by them. It then follows that, by consent of parties, the condition of the bond has been complied with, unless it was a part of the condition, that lot no. 78, in the township of Lysander, should contain 600 acres. The action is for not giving a deed, as near as may be, in the words of the condition. It is necessary, then, to examine, whether the deed given by Caldwell, is not, in its legal operation, as extensive as any deed the defendant was bound to give.

If it be, then it will be admitted that the plaintiffs cannot recover. I consider the premises sold, as fully and definitely described, as if metes and bounds had been used in ascertaining the thing granted ; and so must the parties have understood it. Almost all the lands in the counties of Cayuga, Onondaga, and Seneca, have been surveyed into lets by the surveyor-general, under public acts, and, pursuant to the directions of those acts, maps have been returned to the office of the secretary of state, on which patents have been issued.

It cannot be pretended, therefore, that when the parties contracted about a lot, defined by number, town, and county, that they did not act with reference to the maps, describing and destinguishing this lot, in the secretary’s office. It necessarily follows, that the subject matter of the agreement was precisely ascertained. 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 seisin.

It is settled that if a man lease to another the meadows in D. and S. containing ten acres, and in truth, they contain twenty, all shall pass. If, then, the grantors would take, in case the lot contained more than the quantity mentioned, and where the words, ■more or less, do not occur, it would seem unreasonable and inconsistent, that the grantor should be made responsible when the quantity was less. Upon this motion, there would be no ‘reciprocity. The grantee might get more, but could never have less than the quantity mentioned.

The enumeration of quantity is not the essence of the contract; it is matter of description merely. The only certainty in the present case is the lot, and this alone is the subject of the covenants. The books afford very little information on this point. It may be observed that there are no cases to be found which warrant this action ; and, though probably the case has not occurred in this state; it has in Connecticut. The supreme court of that state, in the case of Snow v.

Chapman, decided, that where lands were specifically bounded and described, and were stated in the deed to contain 110 acres, an action of covenant would not lie on the covenants of seisin, though in truth, the quantity was only 90 acres ; because, tjje ,jee(j granted nothing but the lands within the boundaries, and to those lands only the covenants related. I cite this decision as the opinion of a court of high respectability, proceeding upon the English common law, in the case before them.

There are other circumstances in the present case which would, I think, demonstrate that the parties only meant to contract about the lot; but I forbear to mention them, because unnecessary to the determination of this cause. 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. My opinion therefore is, that a judgment of nonsuit must be entered. Tompkins, J. and Kent, Ch.

J. declared themselves to be of the same opinion. Thompson, J. This is an action of debt, upon a penal obligation, the condition of which is, that on the plaintiffs paying certain sums of money therein specified, the defendant binds himself to grant and convey to the plaintiffs, by a good and sufficient warranty deed, lot No. 78, in the township of Lysander, and county of Onondaga, containing 600 acres.

It is admitted that the consideration money has been paid, and it is proved that the defendant caused to be made and delivered to the plaintiffs, a deed for the lot, describing the same, however, with respect to quantity, “ as said to contain 600 acres, be the same more or less.” But there is nothing in the case to warrant the inference, that the plaintiffs accepted the deed, as a fulfilment of the condition of the bond. On actual survey, the lot was found to contain only 424 acres, and I-8th: and the question is, whether such a deed can be considered as a compliance with the condition of the bond..

I think it cannot. Had there been no other description of the premises to be conveyed than generally, lot No.- 78, the number of acres it might be found to contain would have been immaterial. It might therefore have fairly been presumed, that the purchasers took upon themselves all risk, with respect to the quantity. But here the quantity is superadded as an essential part of the description of the premises to be conveyed. There are ho restrictive words whatever, qualifying the covenant, so as to limit it to the lot, without regard to the number of acres.

I consider the covenant equivalent to a warranty, that the lot should contain 600 acres. It is not like the case of a lot particularly described by metes and bounds, which must controul the quantity. That proceeds upon the ground of miscalculation. No such inference is to be drawn in the present case. If we are to indulge conjectures with respect to the probable intention of the parties, it is much more reasonable to suppose that they considered the lot as containing 600 acres ; because, such is the usual quantity in the military lots.

Had not this been their understanding, the premises would, doubtless, have been described generally as lot No. 78. The description of the premises in the deed is essentially variant from that in the bond, by the addition of the terms more or less. (Owen, 133. 14 Vin. 97.) The deed should have substantially comported with the bond, otherwise it cannot be a performance of the condition. If, from the terms of the covenant, the intention and understanding of the parties be doubtful, that construction must be adopted, which is most strong against the covenanter.

It was asked by the defendant’s counsel, what would be the operation of this bond, had the lot contained more than 600 acres.-— The answer is obvious. The whole must have been con® veyed to the plaintiffs, being included under the general description of lot No. 78.; and this would be conforma* ble, both to the English authorities, and to the decision of j-jjjg court} in tpe case of Jackson, ex dem. Staring, v. Defendorf.

But, it by no means follows from this, that, if there be a deficiency, the loss must fall upon the cove- * nantees; they rely upon their covenant for security.— The covenanter is presumed to know what he undertakes to sell and warrant; and if he adopts a general description that will clearly include the whole lot, he ought to be stopped from claiming any part of it. My opinion therefore is, that the plaintiffs are entitled to recover; and by the case, it is submitted to this court to direct the rule by which the damages are to be estimated.

I consider, that there is a failure of title in the grantor, to the extent of the difference between 600 acres, and the quantity of land that the lot was found to contain. In such case, the rule of damages, according to the decision of this court, in the case of Staats v. Executors of Ten Eyck, would he the consideration money and interest. The deficiency is 125 acres, and 7-8ths.

The consideration money (at the rate of $1000 for 600 acres) is $1 and 66 cts. per acre, which, with interest, calculated from the 1st February, 1799, will give the amount for which the plaintiffs are, in my opinion, entitled to judgment. Livingston, J. There is no ambiguity in this contract. Not only a certain lot of land, in the township of Lysander, is to be conveyed, but it is to contain six hundred acres. This is the defendant’s express agreement, and we have no right to impose another on the plain* tiffs.

There is no reference to maps, nor are there any words of qualifications, such as thereabouts, more or less, or the like; nor a line of proof, that any map was ever made, or filed, any where. The owner, if all this were done, must be supposed to know the contents of the lot, and the price must have been regulated on his statement the quantity. If only the number and. town had been mentioned, the plaintiffs- must have taken it, hoWever small; but when the exact number of acres is thus fixed, the quantity becomes as much parcel of the bargain, as the situation, or title of the land.

Even referring, per-1 haps, to a map, without apt words of limitation, would not have helped the defendant. The case from Caines has no bearing óh this; -Á map of the patent was there referred to, for boundaries, &cw and the lot, although designated by number, was said to contain 200 acres, i! more or less.” The court held, (nor was there room for dolibt, there being no certain number of acres granted) that the whole lot passed, notwithstanding it measured more than 200 acres. This comported With the contract, which was explicit as to the whole lot, but indefinite as to its size.

Before, however, this decision can serve the defendant, he should show, that he has used the same precaution ‘, but in vain do wre look in his bond for such expressions ás, “ it is said ” or “ more of less,” or “ thereabouts,” or other terms, that in any way eontroul the purchaser’s clear right to have 600 acres, — < When one party pays for, and the other agree.s to convey this quantity, by What rule of justice, or law, (which, acr1 cording to the boast of its professors, is the perfection of reason) can he be compelled to take up with a small strip of ground not large enough to build a bouse oír ?

If the condition of a bond be, to grant a certain lot of ground in the city of Ncio-Yorle, by. its number, street, and ward. and containing 200 feet on each side, will a deed, for a piece of ground not an inch square, be a performance? And yet, what difference is there-between the cases ? •- My construction of the condition of this bond, (if there1 be any room for construction, when the. meaning is so plainly expressed) is, that- the plairitiffs -are ip have the whole of lot number 78, even ifit exceed 600 acres j buf that it shall contain that number at least.

It is not at all probable, that a grantor, who must, know his .rights, wjjj jjjatie a representation injurious to himself. If he does, it must generally be his own fault. It cannot pro-cee£j from a fraudulent intent, which may be a motive to misrepresentation the other way.

Not to be misunderstood, I repeat, that if a contract be made for the sale of a lot not otherwise described than by its number, and reference to a particular map, its contents must be determined by the map; but when, as is the case here, a bond is given, with a condition to execute a deed for a lot, without referring to a map, and as absolutely containing a certain quantity of land, the obligee is entitled to have a deed of so many acres, or the penalty will be forfeited’ What might be the effect of a suit, on the conveyance itself, if it were excepted, is another question, and not before us.

We are now inquiring, whether a deed for a lot, said to contain 600 acres, is complying with a positive and explicit agreement, to give a deed for so many aeres absolutely, and without any qualification ; not what would be the effect of a suit on such deed. It is said, that this question has been otherwise decided in Connecticut. If that were the case, I should not, without great hesitation, differ from a court whose reputation for intelligence stands so high. But the case of Snow v.

Chapman is in no respect like the one before us.— There the land was particularly bounded % lines, &,c. and the court very properly say, that the deed granted nothing but the land within the hounds described. But what are the bounds of this lot ? Does merely stating that it was a lot, lying in such a town, ex vi termini, imply what were its contents i If so, it was an idle thing in the plaintiffs to have any thing inserted in the bond about the quantity.

Were we at liberty to travel out of the bond, (which must be done before judgment can be given for the defendant) or had we a right to look to the intention, when the language used is explicit, I should say, that this contract was, no doubt, made on an express understanding, that the lot should contain 600 acres, and that if it did not, the defendant would refund for the deficiency, which proves to be very considerable. But I lay no stress whatever on what was probably intended, but, confining myself to the .contract, am constrained to say, that the defendant is liable to this suit.

On the subject of damages, I concur in the opinion delivered by my brother Thompson. Judgment of nonsuit. 13 Vin. 79. pl. 24. 1 Root, 528. 1 Caines, 493. Saville, 114. 14 Viner, 97. 3 Caines, 111. Vol. 1. p. 493. Root, 528.