
    Elizabeth Falconer vs. William Garrison.
    TFa person agree to sell land for so much per acre, and afterwards ex* ecute titles for the same, by metes and bounds, be it more or less, and take a note for the purchase money, if it turn out afterwards that there is a greater number of acres than was contemplated, the sel. lér shall not recover payment for the overplus. The verbal agreement is merged in the writteni contract, and parol evidence cannot be admitted to prove any contract different from the written agreement.
    Tried at York, Spring Term, 1821, before Mr. Justice Noti.
    
    The plaintiff in this case had agreed; Verbally, to sell to the defendant three or four small tracts of land adjoining each other, at a stipulated price per acre.
    A surveyor was appointed by the parties to ascertain the quantity of land. He made a survey and returned a plat, with a description of the land by metes and bounds, estimating it at one hundred and twenty acres, more or less. The plaintiff then entered into a covenant; by winch she agreed in consideration of a certain sum therein men - tioned, to make the defendant titles to one hundred and twenty acres of land, according to the plat aforesaid. And the defendant gave a note for the pürchase money. It appeared afterwards that the land had not been accurately surveyed, but contained a few acres more than the survey- or had supposed. The defendant, however, expressed herself satisfied with it, and about six years afterwards, when the po rebase money was paid, she executed titles according t.i. the terms of her covenant. After all this was done, she commenced an action to recover the value of the surplus land which she had conveyed to the defendant.
    The presiding Judge instructed the jury that the first contract was merged in the covenant afterwards entered into. That they must therefore look to that contract, and the deed afterwards executed, for the intention of the parties. By the covenant, as also the title deed, she had sold an hundred and twenty acres for a specific sum, (and not ; o much per acre.) according to the plat referred to, which represented the land to contain one hundred and twenty acres, more or less. It was to be presumed therefore that she intended to convey all the land represented by that platj whatever the number of ácrés might be, and she was riot entitled to recover for any surplus land which it might be found to contain.
    The jury found for the defendant, and this was a motion for a new trial, on the ground of misdiretion in the judge, and also because the verdict was contrary to the evidence.
   Mr. Justice Nott

delivered the opinion of the court.

't'he only question in this1 case is, whether the directions of the court to the jury were correct. For, if the instructions to the jury were proper, their verdict, which was in conformity with those instructions, cannot b'e wrong.

The circumstances of this case are in no respect different from those of cases which daily occur in our courts. It is not unusual, on á resurvey of land, to find a large surplus over and above what was contemplated by the parties at the time of the sale. Yet Ihave never known an action brought before to recover payment for such surplus. This, indeed, is stronger against the plaintiff than cases of this description usually are; because she was aware of the fact when she made the deed. It is not improbable that the written agreement was varied from the original verbal contract for the purpose of preventing any further investigation, if we look to the written agreement alone, or to the title deed, there is nothing to induce á belief that any regard was had to the number of acres. It would be attended with the most dangerous consequences to permit a bar-gain which had been closed by the most solemn acts known to the law to be set afloat by the preliminary conversation which led to the contract; and particularly, six years after it had been so closed, and after every part of it had been carried into complete execution.

The motion therefore must be refused.

Williams, for the motion.,

Gist, contra.

Justices Richardson, Colcock, Johnson, Gantt and JJu<-ger, concurred.  