
    G. S. Williams et al. v. Isaac Sparks.
    Where land was described in a deed of conveyance as lying north of a-specified road, and was also described by boundary lines, which in-' elude the road-bed: Held, that the repugnancy between the two descriptions is not irreconcilable, and that the road-bed is included in. the conveyance.
    Motion for leave to file petition in error.
    This was an action to foreclose a mortgage given for the purchase money of land. The defense set up was that the vendor, by his deed conveying the land to the defendant,, covenanted that the tract conveyed contained forty acres, whereas it contained only thirty-seven and one-half acres, and that the consideration, to the extent of the two and one-half acres, had failed. The deed describes the land as “ lying north of a road,” which is named, and also describes it by metes and bounds, calling for objects along the lines,. and calling for the south line of the road as its southern boundary, and concludes the description with the words “ containing forty acres.” The land lying north of the road,, and included within the boundary lines, is only thirty-seven and one-half acres; but if the road is included, there is the • full complement of forty acres. The cause was submitted to the court upon the deed and mortgage, the description of the land in both being the same; and the court held that there was no failure of consideration, and gave the mortgagee a judgment for the full amount of the purchase money. To reverse this judgment, leave is now asked to* file a petition in error here.
    
      Walker $ Mott, attorneys for plaintiff:
    When a deed contains repugnant clauses, the first is accepted and the second rejected. 3 Pick. 272; 3 Washburne on Real Estate, 443.
    Natural or artificial monuments govern courses and distances. 2 Mass. 380.
    
      
      John Stillings, attorney for defendant:
    The description by boundaries in a deed is conclusive as to quantity and not the quantity expressed therein. Powell v. Clark, 5 Mass. 357.
    Covenants of warranty do not relate to quantity unless so specifically expressed. 5 Mass. 357.
   Welch, J.

The question mainly argued by counsel, namely, whether the words “containing forty acres,” are to be regarded as a covenant that, the tract of land conveyed contains that number of acres, or as mere matter of de.scription, we think does not arise in the case. In our judgment the real question presented is, whether the deed conveys only the land lying north of the road, or whether it includes also the road-bed. If it includes the road-bed, there seems to be no deficit in quantity; and therefore it is immaterial whether the words of quantity are to be regarded as a covenant or not, because if they are to be regarded as a covenant, it is enough to say that the covenant has not been broken.

We think the land conveyed includes the road-bed. There are two apparently repugnant descriptions of the land, but their repugnancy is only apparent, or at least not absolute or irreconcilable. The land is described as lying .north of the road, and also as being bounded on the south by the south line of the road. It seems to us that these two •descriptions are reasonably reconcilable, on the theory thatj taken together, they describe the land as lying north of the south line of the road, or as lying (mainly) north of, but including the road. In other words, we think that the description by metes and bounds must prevail, in so far as the two descriptions seem to clash. It may be observed, also, that the description by metes and bounds is strengthened' by the fact that these boundaries contain the quantity of -land called for; whereas, there is a deficit if the north line of the road be regarded as the southern boundary of the •land. Leave refused.

Day, C. J., McIlvaine, Stone, and White concurring.  