
    Ex’rs. of R. D. Crawford v. John Crawford.
    Columbia,
    Dec. 1828.
    The vendor in his deed described tiro land as containing ninety-one and a half acres, and, after setting forth (he boundaries, added; “ The ninety-one and a half acres I warrant, be the samo more or less.” Held to be a warranty of the quantity.
    
    Where the vendor, “ for a more full and particular description ” of the land sold, refers to a plat, in which the lines are specified to be of a certain length, and to contain a certain number of acres; and on a resurvey, the length of the lines, and the number of acres included within them, are found to fall short of the description contained in the plat, the purchaser is intitled to an abatement of the price pro tanto.
    
    Tried before Mr. Justice- Gaillard, at Lancaster, Fall Term, 1828.
    Assumpsit upon a promissory note. The note had been given in payment of a tract of land purchased by defendant of plaintiff’s testator, and a discount was claimed for a deficiency in the quantity alleged to have been sold. The price to be paid was two thousand dollars. The conveyance to defendant described the tract as “ containing ninety-one and a half acres,” lying within certain boundaries, which were specified ; and “ for a more full and particular description of the premises,” the deed referred to a plat made by James H. Blair, deputy surveyor. Immediately after which followed a clause in these words: “ The ninety-one acres and a half I warrant, be the same more or less.” And to this was added a general warranty in the usual form. The plat made by Blair specified the lines inclosing the tract to be of a certain length, and the whole tract to contain ninety-one and a half acres ; but upon a resurvey, two of the lines were discovered to fall short of the length specified in the plat, and there was a deficiency of seventeen acres, of the number called for by the deed and the plat.
    For the plaintiffs it was contended, that the land had been sold by metes and bounds for a gross sum, the number of acres being stated merely as part of a general description; and upon general priciples therefore the defendant was not intitled to any abatement for the deficiency. That as to the clause in which the grantor warranted “ the ninety-one acres and a halfits obvious meaning was to warrant, not the quantity, but the land, be the quantity what it might, lying within the boundaries specified. The employment of the definite particle the shewed, that the number of acres was mentioned merely to designate the land warranted, by reference to the description previously given. And if any doubt could exist, as to this being the true construction, it was removed by the words “ more or less,” which had been added through abundant caution, and which excluded all implication of a warranty of quantity.
    The presiding Judge held, that the clause in question admitted of no other construction, than that it was intended as a warranty of quantity. In any other view it was senseless and unmeaning, particularly as it was immediately followed by the usual warranty of title. And besides were it even more ambiguous, it must, according to the general rule, be construed most strongly against the grantor. The jury, under the charge of the Court, allowed the defendant’s discount for the seventeen acres deficient; and the plaintiff now moved to set aside the verdict, and for a new trial, on the ground of misdirection.
    Williams, for the motion,
    cited Peay v. Briggs, 2 N. & M. 184, Talbot v. Mason, 2 M’C. 440, and Barksdale v, Toomer, Harp. 290.
    
      e¡ ñde Com’r 4
    Miller, contra.
    
   Colcock, J.

delivered the opinion of the Court.

The motion in this case must be refused, for the warranty in the deed does admit of the construction, which has been given to it by the presiding Judge. I think it clear, that the grantor meant to warrant expressly, that the tract of land sold did contain ninety-one and a half acres; but if this were doubtful, yet the vendor sold by a plat representing certain lines to be of a specified length, and on a resurvey it appears that two of them fall short. This then is a misrepresentation, and brings the case within the principle laid down in Tunno v. Fludd, 1 M’C. 121.

It is true, that where a tract of land is sold in the gross, and by a general description, the warranty may not be considered as applying to the number of acres : as in the case of Barksdale v. Toomer, 1 Harp. 290: but here the description is specific, and there is nothing in the deed to exclude the warranty which is implied by the description.

Motion refused.  