
    Powell v. Lyles.
    "I >• From Wake. J
    ín a deed of bargain and sale, the words “ give, grant, bargain and sell,” do not imply a warranty.
    The clause of a deed describing the length of lines and the boundaries of a tract of land, and concluding with the words, “ containing so many acres,” does not amount to a covenant of quantity; and no action lies, if the quantity be less than that mentioned; as the word “ containing” does not impart or constitute a covenant. , ■
    This was an action of covenant brought on the following deed, to wit:
    
      “ This Indenture, made this twenty-first day of January, eighteen hundred and seven, between Samuel Lyles, of the County of Wake, and State of North-Carolina, of the one part, and Caswell Powell, of the County and State aforesaid, of the other part, witnesseth, that the said Samuel Lyles, for and in consideration of the sum of five hundred pounds, lawful money, to him in hand paid by the said Caswell Powell, the receipt whereof he the said Samuel Lyles doth hereby acknowledge, and himself fully paid, hath given, granted, bargained, sold and conveyed unto the said Caswell Powell, his heirs and assigns forever,a. certain tract or parcel of land, lying and being in the County and State aforesaid, on the south side of Neuse river, containing three hundred and forty acres ,■ beginning at a hickory, Abbot’s corner, thence nouth three hundred poles to a hickory in Bohannoh’s line; thence west an hundred and twenty-nine poles with the said line to a pine,
    Jacob Riches’ corner; thence north three hundred poles to a pine in Abbot’s line; thence with the said line to the first station : To have and to hold the said lands, with all the privileges and benefits thereunto belonging, to him the said Caswell Powell, Ids heirs and assigns forever, against the lawful claim or claims of any person or persons whatsoever; and I the said Samuel Lyles, for myself and my heirs, do further agree that I will make or asssign any deed or writing of conveyance, when thereunto required by tfie said Caswell Powell, his heirs or assigns, that shall be judged necessary to authenticate the same. In witness whereof I have hereunto set my hand and seal the year first above written.
    ■ “ SAM’L. LYLES, (Seal.)
    “ Signed, sealed and delivered in presence of
    <f James Fort,
    
      “ Poxxy Fort,
    
      ce Charlotte Embry,35
    Some time after the conveyance, an accurate survey of the land mentioned in the said deed, was made, and the boundaries were found to be correct, but the quantity of land was deficient by 17 j- acres. . The question submitted to the Supreme Court was, whether an action of covenant would lie on this deed to recover damages for :such deficiency ?
   Taylor, Judge,

delivered the opinion of "the Court:

This case does not essentially differ from that of Rickets v. Dickens & Wait, decided at this term : in both cases the actions are brought upon deeds of bargain and-sale. The one now declared on contains no covenant of warranty, and thus far corresponds with the deed set forth in the first count of the declaration in the other case : but the word “give” is contained in the deed in the present case, which, according to the principles stated in the case of Rickets v. Dickens & Wait, would imply a warranty, if inserted in a deed of feoffment, &c.: but ia other forms of alienation gradually introduced gince the statute of quia empiores, no warranty whatsoever is implied, they bearing no sort of analogy to the original feudal donation. Lord Coke, in illustrating the statute de higamis, more particularly explains the several conveyances at Common Law, in which that word implies a warranty. “ The letter of this act, says he, in 2 Inst. 9.75, extends hut to the feoffor upon a feoffment madebut if “ dedi” doth enure by way of release or confirmation, it importeth a warranty during the life of him who makes the deed: so it is, if a reversion expectant upon an estate for years, life, or in tail, be granted by this word “ dedi,” and attornment had ; here dedi” doth import a warranty, though the estate passeth not by way of feoffment.” — Vide also 9 Blac. Com. 210. The deed in this case being a bargain and salé, no implied warranty arises by force of any words, and though it would.be difficult to assign any satisfactory reason why the -distinction should be preserved at the present day, when deeds vary from each other only by a slight verbal difference, and when equal validity is conferred upon all by the ceremony of registration: yet the Court has no power to remove ancient land-marks : they-must administer the law as it is written, and leave the Legislature to alter what may be deemed inconvenient. There is a covenant in this deed for further assurance, which probably was designed by the parties to compel a future execution of- a conveyance containing the necessary warranty. If that be the case, the Plaintiff cannot be reme-diless, although, in the present suit, there must be judgment against him.

Hah., Judge,

contra. — Espiraasse, in his treatise upon the action of covenant, page 267, says “ there is no meed of the word covenant, nor of any particular form' of words to constitute a covenant in deed; for any thing under the hand and seal of the parties importing an agreement, shall support this action as amounting to a covenant- As- ip the case of a lease for lands, in * which are the •words yielding and paying” so much rent 5 this is a covenant, and this action lies for the non-payment, for it is an agreement for tiie payment of rent, which amounts to a covenant,” and he cites 1 Roll. Abr. 518, 519. Sheppard, in his Touchstone, page 87, speaking of deeds, says, “ that the construction should be made upon the entire deed, and that one part of it doth help to expound another, and that every word (if it may be) may take effect and none be rejected, and that all the parts do agree together, and there be no discordance therein,” Vide also Plow. 160. And many other authorities might be referred to which support the same principles. It must then be admitted, that every sentence in the deed which is now the subject of controversy, shall have some meaning attached to it, and the true question is, do the words and sentences of the deed import an agreement on the part of the bargainor that there are three hundred and forty acres in the tract of land which he conveyed by this deed ? Lands may be described in a deed of conveyance by course and distance directed by marked lines "and corners, or by known and visible boundaries only, without mentioning course and distance. As to the first mode, a mathematician would tell you that there was sufficient certainty in it without making any actual survey. But when he should be told, that altuough a deed called for courses and distances, yet if the distances were longer or shorter, or courses different from those called for in the deed, he must be bound by them, he would probably think it safer to make an actual survey.

It is unnecessary to cite authorities to prove that course and distance must be controlled by real lines and corners. This rule has been long established by the. Legislature, and'enforced by judicial decisions. Where the lands are described by known and visible boundaries, without course or distance, there is generally a greater necessity for a survey. In the case now before us, three of the lines are said to run certain courses and distances to certain corners ; The fourth runs from a pine in Abbot’s line with the said line to the first station. Those distances may be found to be shorter in fact, than those called for in the deed. The fourth line instead of being straight, may form a semicircle, because Abbot’s line, with which it runs, may be of that form. Who must be supposed to be best acquainted with these lines and the quantity of acres contained within them, the purchaser or the seller ? I apprehend the seller .• and the parties to the deed for the land in question seem to have thought so too : for, in the deed by which he passes his title, and which evidences the contract of sale, he iiot only sells the land within the boundaries therein set forth, but sells it as “ containing'” three hundred and forty-three acres. But it is said tiiat this latter member of the sentence is only descriptive of the land, and nothing more. To this I answer, if ittbe descriptive only, it must be as to quantity, and nothing else. If then the seller has by his deed described the land as “ containing” so many acres, when in fact it does not; if he must be supposed to have been best acquainted with the quantity ; if “ every word should have effect in a deed (if it may be) and none be rejected,” I think the conclusion must be, that the Defendant is liable for a deficiency.

It is asked, however, if upon a survey it should have been found that the tract of land contained more than three hundred and forty-three acres, what would have been the consequence ? Could the Defendant claim compensation beyond the stipulated price ? It is evident that he could not; and for the reasons before given, namely, that he has sold all the lands within certain boundaries, and let the quantity be what it may, he can claim no more than what he has agreed to take for all the lands within such boundaries. Nor could the Plaintiff set up a claim in the present case, had the Defendant omitted to stipulate, in addition, that there were within those boundaries three hundred and forty-three acres. If the words (i containing three hundred and forty-three, acres” do not amount to such a stipulation, it appears to Hie that they can mean nothing: for all the lands contained within the boundaries set forth, would have passed without these words; and where persons sell lands and use these words merely as descriptive of the land, without intending to create a covenant as to quantity* they add the words “ more or less” “ by estimation” or some other words which shew their intention to be not to bind themselves as to quantity. To use the words of the President Pendleton, in the case of Joliffe and others v. Hite and others, 1 Call. 501, “ a man wishes to sell his land, and another willing to purchase, enquires what is the quantity ? The vendor answers, I hold it for so many acres, but-I mean to sell the tract as it is, more or less, and such is my price.” He adds, this is perfectly understood by planters and farmers of the lowest order.” I cannot but think that the principles to be extracted from this case in Call, support the construction which Í contend for in the present- case. And although I fear that my opinion may be erroneous, since my brethren of the bench do not acquiesce in it, I feel bound to declare it to be my opinion, that, in this case, judgment should he entered for the Plaintiff.  