
    Glen and others against Glen.
    
      Monday, October 12.
    In Error.
    tract onand acres'*conveyont°descríbed by boundaries, ever, were vague, and did not completely surround itj contain1»)!)0 /esf8’ft was°r afterwards person^ap^ * bothteart^s who informed survey con-*16 tamed 200 allowance of fo* road^'&'c The land thus surveyed, was delivered by A, being seised of a the grantor, to the grantee, by whom it was held, during his life, and by his widow, after his death. After the death of both the grantor, and grantee, and 13 years after the execution of the deed, it was discovered, that the tract contained, 213 acres, 141 perches, instead of 200 acres.
    ON the return of a writ of error to the Court of Cornmon pieas, of Cumberland county, it appeared, that this was an ejectment, brought by Thomas Glen, Robert 31 <■ Cune, Elizabcth, 31ary, Thomas, and Letitia Glen, against Susanna Glen, to recover the possession of 13 acres, and 141 perches of land. Both the plaintiffs and the defendant, claimed un- ^ Thomas Glen, deceased, the father of Alexander Glen, 77 ’ deceased, who was the husband of the defendant. It was confessed, that Thomas Glen, being seised in fee, of about acres of land, of which, that in dispute was part, made on the 30th January, 1795, a deed to his son Alexander, granting to him in fee, a parcel of land, part of the said 400 acres» described as follows: “ A certain tract, or parcel of land, situate and lying in Dickenson township; which said tract or parcel of land is bounded, by lands belonging to Robert Patterson, on the south, by lands belonging to the said Robert Patterson, on the south-west,' and by land be-l°nging to John Harper, sen., on the north-west; containing 200 acres of land, be the same more or less.’* On the 20th April, 1795, Ralph Martin, who was employed by both the ■father, and son, surveyed a parcel of land, part of the tract of 400 acres, and informed them, that it contained 200 acres, with an allowance of six per cent, for roads, &c. The land thus surveyed, was delivered by Thomas Glen, to Alexander, by whom, and by his widow, the defendant, the possession had been since, uninterruptedly held. Shortly before the commencement of this ejectment, some marked saplings were found standing on one of the lines, and a fence exactly on the same line. . Thomas Glen, lived about three years after the execution of his deed, knew that his son Alexander held according to the lines of Martin’s survey, and never made the smallest objection. But after the death of both Thomas and Alexander Glen, it having been discovered, that Martin’s survey contained more than 200 acres, the plaintiffs brought this suit, thirteen years after the execution of the deed, for what they alleged to be included in the said survey, over and above the 200 acres, with the allowance of six per cent.
    
      Held, that the heirs of the grantor, were not entitled to recover the overplus of 13 acres, 141 perches.
    
      The plaintiffs gave evidence, that there was a surplus of upwards of thirteen acres, and prayed the Court, to direct the jury, that by the deed of Thomas Glen, his son Alexander, was entitled to no more than 200 acres strict measure, with an allowance of six per cent.; and if it should appear to the jury, that Martin’s survey, included, by his mistake 213 acres, 141 perches, with the allowance, &c., he having stated it to contain but 200 acres, the mistake might be rectified by a verdict for the plaintiffs, for the surplus of 13 acres, 141 perches. The opinion of the Court was against the plaintiffs, and exception to it was taken by their counsel.
    
      Mahon and Carothers, for the plaintiffs in error.
    Had this been a sale, by courses and distances, or had the land been described by certain and fixed boundaries, the grantee would perhaps have been entitled to hold it, according to the description, without regard to the number of acres mentioned • in the deed. In such cases, the risque of quantity, enters into the contemplation of the parties. But in the present case, the description was extremely loose. The grantor owned about 400 acres, a certain part of which, he intended to convey. The deed called for boundaries, only on three sides, and evidently looked to a subsequent survey, to reduce to certainty, what was so imperfectly described. Quantity, therefore, was the essence of the contract. In ascertaining this, the surveyor made a mistake in the calculation, and we contend, it is such a mistake, as it is the province of a court of chancery to relieve against; and if so, it is within the equitable powers of this Court. That there was a mistake, was admitted by the Court below, who however erroneously declared, that under the circumstances of the case, it could not be rectified, after the lapse of thirteen years. This was not such a lapse of time, as will afford a presumption, that the mistake was discovered, and acquiesced in. There was no evidence of the discovery of the mistake, until a short time before the commencement of this suit. If there had been fraud, it will not be pretended, that the defendant could retain the land; and where is the difference, in effect, between detaining what was given in mistake, and acquiring it by fraud ? The words, “ more or less,” were probably introduced by the scrivener as á matter of course, and were not intended by the parties to have any effect. If any was intended, they were designed to cover any difference, which might arise from the uncertainty of instruments ; and with this view, they are usually inserted in deeds. But where the intention is to convey only a certain number of acres, which was manifestly the case in this instance, 13 acres, and 141 perches, are too much to allow for inaccuracy of instruments, and chain carrying. On the amount of the excess, the Court made no observations to the jury, but the Judge, assuming the functions of a chancellor, undertook to decide both the law, and the fact. This was certainly error. The authorities which bear upon this subject, by no means sanction the idea, that where the description is so undefined, as it is in the deed in question, a greater quantity of land will pass, than is expressly stipulated for. Some of our Courts have gone beyond the English law on this subject. It is said in Sugden, 201, that where in a conveyance, lands are mentioned to contain so many acres by estimation, or the words more or less” are added, if there be a small excess, the vendor cannot recover it back; or if there be a small deficiency, the vendee is entitled to no compensation in respect to it. The inference is, that the rule does not extend to cases of great excess, or deficiency. In the same book, (p. 202.) it is laid down, that equity will relieve the vendor, where more land has passed than was contracted for. See also Potuel on Contracts, 77, 78, 79. 195. In Virginia too, if on a sale of land, the deficiency be greater than might bly arise from a difference of instruments, or a common mistake of the surveyor, the Court will grant relief. Hull v. Cunningham.
      Nelson v. Mattheivs.
      
       In Pennsylvania, and New Tork, there have been decisions, which are opposed to the law as now stated, hut they, have never yet been extended to the point, to which it is attempted to carry the present case; nor have those decisions been stamped with the unanimous approbation of the Court. In Smith v. Evans,
      
       the land was described by courses and distances, yet Judge Yeates, in opposition to a majority of the Court, was of opinion, that the defendant was entitled to a deduction from his bonds, on account of a deficiency. Boar v. MiCormich,
      
       was likewise the case of a sale by ascertained boundaries, and though it was decided, that under the circumstances of the case, the defendant could not claim a deduction, yet the Chief Justice declared, that there might be extreme cases, in which a court of chancery would infer, ex natura rei, that there had been great misapprehension, and on that ground, relax the strict rules of law. And he admits, that in a case of great deficiency, relief would be granted, on the principle, that the consideration of the contract had failed. The case of Mann v. Pearson,
      
       which was decided by three Judges against two, may be referred to the same class. On the whole, as the deed furnishes no accurate description of the land, as it was obviously intended to convey only a certain number of acres, to be subsequently ascertained by survey, and as a mistake has been made in a considerable quantity, by the inaccuracy of the surveyor, that mistake may certainly be rectified ; and for this purpose, the proper remedy is an ejectment, in which the plaintiff may demand as much as he pleases, and recover only so much as he can prove a title to.
    
      Watts, for the defendant in error.
    Even if the plaintiff in error be right in his leading position, that the mistake of the surveyor can, under the circumstances of this case, be rectified, it cannot be done in an ejectment brought for tliirtj' acres of arable land, thirty acres of meadow land, and thirty acres of woodland, situate in Dickenson township, adjoining lands of T. N., J. II., C. /., and E. G. This is the manner' in which the writ, and the description filed, are expressed 5 and it is much too loose and undefined, to enable the plaintiffs to recover a supposed surplus of thirteen acres, in the form of ejectment prescribed by the act of assembly. But it is not necessary to dwell upon any objection of this kind. When the land was conveyed by Thomas Glen, to his son Alexander, its limits must have been perfectly known. The. deed refers to certain boundaries, which are always considered as indicating the land to be conveyed, and as entitling the grantee to every thing within their limits. The quantity which the area was supposed to contain, was, as is usual, mentioned ; but what shews that the boundaries, and not the quantity, formed the essential part of the contract, is, that the words, 1‘ more or less” are introduced, which necessarily import uncertainty as to quantity. The survey was made according to these boundaries, by Martin, the agent of both parties, who found a number of marked saplins, and a fence exactly on the line. If this survey be abandoned, by what is the deed to be construed ? A v?ry trifling difference in the length of the chain, would make a difference of thirteen acres in two hundred, and perhaps the result of another survey would be, to diminish the number of acres which the tract is now supposed to contain. There has been probably, no mistake whatever ; but admitting a mistake to have been committed, has the plaintiff a right to elect from what part he will take the surplus ? Both the grantor, and the grantee, are now dead, and this ejectment is brought for the spot on which the widow of the grantee now resides. The quiet of titles, and public policy require, that after such a lapse of time, and after the death of the original parties, a survey made in the manner in which this was made, should not be disturbed. The Pennsylvania and New York cases, cited on the other side, particularly that of Boar v. M‘Cormick, establish principles decidedly in favour of the defendant in error.
    
      
       .1 Munf. 337.
    
    
      
      
         2 Hen. & Munf. 164.
    
    
      
       6 JSinn. 102,
    
    
      
       1 Sergt. & Hawle, 166.
    
    
      
      
         2 Johns. 37.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The plaintiffs’ counsel have founded their argument, on an assumption, that the deed of Thomas Glen was intended to convey the exact quantity of 200 acres, with the allowance of six per cent, which was to be surveyed and ascertained, after the execution of the deed. ' This is tainly contrary to the expressions of this deed, which describes a tract of land, hounded in a certain manner, as the ■subject of the conveyance. The boundaries, indeed, are vague, and do not completely surround the land; but it must be supposed, that a tract of land did exist, knozvn to the parties, otherwise the deed would convey nothing. And inasmuch as the description is incomplete, the tract intended to be conveyed, might be identified by parol evidence. The evidence was, that a tract, agreeing with the description in the deed, as far as it went, and completely ascertained by lines and boundaries, was delivered by the grantor, and accepted by the grantee. This is sufficient. But the plaintiffs contend, that the quantity of 200 acres, was an essential part of the deed. I can only say, that it is. not so expressed. Two hundred acres more or less, are the words, which imply, that the boundaries were fixed, and might contain more or less. If the plaintiffs are right in their construction, this deed is not a conveyance of land, but an agreement that 200 acres shall be surveyed and conveyed. Now certainly, this Court should incline to the construction which corresponds with the declared intent of the parties ; that is to say, the absolute conveyance of a tract of land. It may be, however, that the original intent was, to convey 200 acres, and through a mistake arising from miscalculation, such boundaries have been fixed, as contain 213 acres; How would the law stand, on that supposition ? The boundaries being recognised by both parties, must betaken for those intended by the deed; and thus we have the case of a deed, containing 13 acres more than was supposed by either party ; possession held for 13 years, and then, both grantor, ánd grantee being dead, an attempt to open the conveyance, for no other reason, than that it contained a surplus of 13 acres. Why were the words more or less used, but to shew, the understanding of the parties, that the boundaries should not be affected by a deficiency or surplus of quantity ? Would a court of chancery interfere in a case of this kind ? I think not. The surplus is not so great as to carry with it irresistible evidence of an essential mistake; and the death of the original parties, the only persons who had a perfect knowledge of what was really intended, is a strong circumstance against throwing open a transaction, with which both parties were content as long as they lived. The plaintiffs’ counsel, having asked the opinion of the Coui't below, on a certain case, supposed by themselves to be matter of law, now complains, that the Court assumed what belonged to the jury. This is not fair. They would have had much better cause of complaint, and no doubt would have complained, if the Court had refused to give an opinion, and referred this matter to the jury. Upon full consideration of the plaintiffs’ case, I cannot think them entitled to a recovery, upon .principles either of law or equity; and therefore I am of opinion, that the judgment should be affirmed.

Judgment affirmed.  