
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1806.
    Vaughan v. Mitchell.
    A party agreed to convey a certain quantity of land, and described the same as bounded in a certain manner; though it was not expressly agreed, that if it should thereafter appear that all the land within the same limits did not belong to the seller at the time of the contract, he would be answerable for the deficiency, yet he was held to be answerable for such deficiency, notwithstanding the remainder, after deducting the part taken away from the tract, as described by the specified limits, amounted to a greater number of acres than the quantity mentioned in the description of the tract sold within the specified limits; because it was considered that the purchaser, in such cases, buys more with a view to the situation and boundaries of land, than to the quantity of land, or number of acres.
    Debt on a bond, conditioned for payment of money* The de-fence set up by the defendont was, that the bond was given to secure the consideration money agreed to be paid for a tract of land, sold by the plaintiff to the defendant, and that there was a deficiency in the quantity sold. J
    
    , . ,,. . ,. , . the cause was tried before Waties, J., in Union district, and it appeared in evidence, that the plaintiff had sold to the defendant the land in question, and had covenanted to/make him a title to the same. The covenant describes the land as containing one hundred and sixty-two and a half acres, bounded on one side, by Davis’ land, and being the plantation whereon the plaintiff then lived, and having such buttings and boundings as a plat annexed to the original grant doth represent. It Further appeared, that upon a resurvey of the land, after the said sale, that an elder grant ran into the tract, as described, and took from it fifty acres. This elder grant was Davis’, which, instead of being a boundary to the land in question, on one side, as the plat annexed to the plaintiff’s grant described it to be, was, in fact, a boundary on two sides, for it formed an angle within the plaintiff’s tract, as described in his plat,' which angle contained the fifty acres in dispute. But it appeared, notwithstanding, that the remainder of the tract so sold to the defendant contained more than one hundred and sixty.two and a half acres. The plaintiff offered parol evidence at the trial, to prove that it was understood at the time of the contract, that Davis’ grant would take awsty the fifty acres abovementioned, and that it was agreed by the defendant to take titles for the residue ; which evidence the court would not admit.
    Plaintiff’s counsel also objected, that the title of the land could not be tried in any other action, but one brought expressly for that purpose ; and, therefore, that the present defence could not be supported, as it involved the title of the land in question. This objection was likewise overruled.
    The plaintiff then suffered a nonsuit, with leave to move this court to set the same aside, on the ground, that the judge, who overruled the said objections in the District Court, was mistaken, and that he should have sustained both the said objections.
    Farrow moved to set aside the nonsuit. Nott opposed it.
   Brevard, J.,

delivered the opinion of the court,

all the judges iserit, Grimke, Waties, Bay, Trezevant, Brevard, and "\Vilds.

Our courts have uniformly allowed discounts of the nature of that which was set up in the present case, as very just and equitable. The contract to convey land, and the contract to pay money, being, in fact, but one entire contract, the whole taking place at one and the same time, and the one being in consideration of the other, there can he no impropriety, or difficulty, in permitting a breach of the contract on the one side from being set off, against a failure of performance on the other. In the present case the plaintiff sued'for the consideration money, which the defendant bound himself to pay for the land. The defendant contended, that he was not bound, by law, to pay the whole of the money so agreed to be paid, because the plaintiff had not a title to the whole of the land so sold, and could not make a good title to the same ; and that the value of so much of the land as he could not legally convey, ought to be discounted from the price agreed to be paid for the whole. This was done, and very properly done, at the trial. The objection taken on the ground, that the title of land came in question, and that it couldf not be tried in this collateral way, but only in an action brought for that particular purpose, was properly overruled. The act which declares that no claim to lands shall be valid which is not made by suit at law, was not intended to forbid any other method than the action of ejectment, to determine the rights of other parties claiming lands, or the decision of contracts respecting lands, in any other legal way, but only to put a stop to the practice of entering on land, by the mere act of the claimant himself. As to the evidence offered, as it was said, to explain the deed of covenant to convey, that was properly rejected, because it was not offered to explain any ambiguity in the deed, or to ascertain the lines, but to prove a fact inconsistent with the plain meaning and construction of it. The deed is sufficiently clear and explicit. The words used, require no explanation. The land is described by buttings and boundaries, in the plat annexed to the grant referred to; these only were necessary to be ascertained by parol proof. The land which the plaintiff was entitled to convey, does not answer that description. He has sold land which did not belong to him, arid is bound to abate of the price he contracted to receive. It was argued, that until the defendant was legally evicted from the land in question, he could not be entitled to recover over against the plaintiff; but this doctrine, I think, ought not to prevail. It is only necessary in an action of covenant, for quiet enjoyment, to state, or prove, an eviction, by some one having a lawful and better title. The majority of the court are agreed that in this case, it was not incumbent on the defendant to prove a lawful eviction from the fifty acres in dispute, to entitle him to the discount in question. And we are all agreed, that as the plaintiff had sold the land by certain metes and bounds, he warranted the title to all the land within the boundaries set forth and described in the plat referred to; and that the quantity of acres mentioned in the covenant was not the substantial part of the contract, but was incidentally mentioned, and by way of description only.

Thezevant, J.,

did not agree to the opinion expressed, respecting eviction. He was of opinion, that where there is a general warranty of title in a covenant to convey, or conveying land, in fee simple, unless the covenantor expressly covenants that he is lawfully seized in' fee, and has good tille ; that, although in fact, he never was lawfully seized, yet the covenantee has no remedy till after he has been lawfully evicted. Therefore, in the present case, he thought the discount was not supported, inasmuch as no eviction had been proved.

New-trial refused.  