
    Austin F. Peay, Executor of Nicholas Peay, against Thomas Briggs.
    Soidieby!ampitc bóündaíy’on0^! B. and, oa a reóütvtha’t tiíetract ry touch that of hlV“ditwu’ winaf¿Mach of warranty, so tS number® eluded tract “
    This was an action of assumpsit, brought on a note of hand for 500 dollars, the consideration which was a tract of land sold by plaintiff’s to the defendant. The defence setup A a defalcation of a part of the land for which defendant was entitled to a deduction. The plaintiff’s testator sold and warranted “ a tract of land, containing in the whole 846 acres, more or less, situate and lying on the waters of Colonel’s Creek, adjoining lands belonging to Darling Jones, James Bryant, and Isaac Knighton, on the west side of the Waterie River, originally granted to Minor Winn and Robert Martin, and hath such boundaries, form, and marks, as will more fully appear by the plats,” &c. When this deed was executed, the original plat annexed to the grant, and- a re-survey of the land afterwards made, were exhibited to the defendant, and were the plats referred to in the deed. The certificate annexed to this survey, describes the land as being bounded on the S. E. by Stephen Harman's, Isaac Knighton's and Darling Jones' land, and Stephen Harman and Isaac Knighton's names are written on that side of the plat, as owning lands there. On a re-survey, plaintiff’s grant is found to contain 1165 acres; and on the side opposite to where Isaac Knighton's land is described to be, but within the lines of plaintiff’s grant, is found a tract of land covered by an older grant, which land belongs to Isaac Knighton, and contains 187 acres. But after deducting the acres, defendant still has a greater number of acres than he originally purchased. It ought, perhaps, to be observed, that although Knighton’s land is within the lines sold by the plaintiff’s testator to defendant, one of the corners of land sold extends to the exterior line of Knighton’s survey.
    The cause was tried at Fairfield, Fall Term, 3817, before Mr. Justice Cheves.
    
    The following questions were made in the Court below:
    1st. Whether the defendant’s claim should be limited to the number of acres expressed in his deed, or whether it should extend to the boundaries called for ?
    2d. If to the extent of his boundaries, whether Knighton’s land, which was enclosed in, should be considered one of the boundaries of the land conveyed ? Or,
    3d. Whether he should go to the metes a&d bounds exhibited by the plat ?
    If either of the two first views were correct, there was no breach of warranty, and the plaintiff w'as entitled to a verdict for the whole amount of his demand. If the defendant’s claim is to be decided according to the last view of the subject, then he was entitled to a deduction for the value*of the land contained in Knighton’s grant.
    whéie s person purchases bmlniiI/”aidSa(o contain a certain Dumber of acres,, fands^withii1 the the number oileres be.
    The presiding Judge was of opinion that land must be made one of the boundaries of defendant’s land, and that there was no breach of warranty.
    The plaintiff recovered a verdict for his whole demand. A motion was now made for a new-trial, on the ground of misdirection in the J udge on the point above mentioned, and because the verdict was contrary to law and evidence.
   The opinion of the Court was delivered by

Mr. Justice Nott.

The principle heretofore established by the x x j decisions of this Court is, that where a person , -iii-j ii t i purchases land by metes and bounds represented to contain a certain number of acres, “ more or less,’’’’ he is entitled to recover all the lands within the prescribed limits, whatever the number of acres may be. It must be apparent, from the words “ more or less,” that the metes and bounds are to govern, and not the number of acres. That question was settled in the case of Vaughan and Mitchell, determined in this CourtI think about the year 1803. In that case, about 50 acres of the land were taken off by an older grant, still the defendant had nearly double the number of acres that his deed called for; yet the Court held that he was entitled to all the land embraced. within the lines of the plat referred to, and allowed a deduction from his bond for the defieiency.

Where the metes and bounds are represented by visible marked lines, they cannot be extended, although a natn* ral or artificial boundary may be called for beyond them.

on's 2d. The plaintiff’s deed calls for Knight< land as a boundary.' He must have intended, therefore, to represent it as lying without his lines, and not within the heart of his land. For by no construction can a tract of land be said to be bounded by lands actually énclosed within it. It is true,’ one corner of the plaintiff’s survey does extend to the outer line of Knighton's tract; but it is a mere mathematical point; the latter is completely circumscribed by the former. It is another established rule of law, that where the metes and bounds of a tract of land are represented by visible marked lines, they cannot be extended beyond those lines, although a natural or artificial boundary may be called for beyond them. And by a reference to plaintiff’s original grant, or to the re-survey exhibited at the time the deed was executed, it will appear that the lines and corners, on the side towards Knighton's land, are distinctly marked.

3d. It follows, then, that the defendantis entitled to hold all the land included in the plat referred to in the deed, according to the metes and bounds there set out. The correctness of this conclusion is more apparent from the plat itself, where Knighton's land is represented on another part of the land, and as being actually without the lines; So that the land now called Knighton's, cannot be the land called for in the deed. And a deed is always to betaken most strongly against the person who makes it.

I am of opinion the defendant was entitled to a deduction for the value of the land contained in Knighton's grant, and therefore a new trial must be granted.

Gvirnke, Colcock, and Johnson, J. concurred.

Cheves, J. dissented.  