
    Houghtaling against Lewis.
    ALBANY,
    August, 1813.
    Covenant oa. articles ot greement, by Tenanted" °te which he warranted to contain 58 a* eres of land.
    A. executed and delivered a deed of the farm to B. specifying the bounds, containing 58 aceres, which B0 accepted in performance and satisfaction of the articles ofagreement, which were declared to he null and void, but be= iug in the hands of m third person,were not can= celled. A. afterwards pro' mised B. that, ^““shor^oi ss^ acres, i,. an allowance f Oa ? found to enriuain only 55 acres and 12 perches. It was held, that B. could not recover in an action on the art! i-.jes of agreement, for a breach of the covenants that his remedy, if any,_ was on the promise.
    The acceptance of a deed pursuant to articles of agreement is,prima facie, evidence of the exe= c'.ntion of the whole contract, and the rights and remedies under it are determined by the deeds and the original contract becomes null and void.
    Parties may enter into covenants collateral to a deed. A deed may be deemed a part execution of the contract, if the provisions in the two instruments clearly manifest such to be ihe intention of die parties.
    THIS was an action of covenant. The cause was tried at the Chenango circuit, in September, 1812, before Mr. Justice Van Ness, when a verdict was taken for the plaintiff, by consent, for 73 dollars and 13 cents, subject to the opinion of the court on the following case:
    The defendant stated that by articles of agreement between the plaintiff and defendant, dated the 23d of September, 1809, the defendant covenanted, for the consideration of two thousand dollars, to convey to the plaintiff, by the 1st of April ensuing, by a full, complete and warranty deed, the farm and premises then occupied by the defendant, which farm the defendant, by the said agreement, warranted should contain no less than 58 acres of land; that the plaintiff and his wife, within the time limited, in pursuance of the articles of agreement, executed a warranty deed of the premises in question, to the plaintiff; (describing them;) and assigned, for a breach of the covenant, that the land so conveyed and described did contain less than 58 acres of land, &c. The defendant, after craving oyer of the agreement, and of the deed mentioned in the declaration, and setting them forth, pleaded, 1. Non est factum, as to the articles of agreement; 2. That (he land conveyed by the deed did not, in fact, contain less than 58 acres, and concluded to the country; 3. That the deed of (he premises mentioned in the plaintiff’s declaration, as executed by Hie defendant and his wife, was executed and delivered as a full performance, satisfaction and discharge of the covenant of the de» fendant contained in the articles of agreement, and was accepted by the plaintiff as such; to which the plaintiff replied, taking issue thereon.
    The deed produced at the trial' was in the usual form, describing the premises, by metes and bounds, and as containing 58 acres of land. A surveyor testified that he surveyed the premises according to the boundaries pointed out by the neighbours acquainted with the land; and, according to his survey, which he particularly stated, there were only 55 acres and 12 perches of land. The subscribing witness to the deed testified that the parties, at the time of its execution, spoke of articles of agreement for the premises in question, which he understood were in the hands of some third person, who was not present; that one of the parties at the time, and in the presence and hearing of the other, declared that the deed was in satisfaction of the articles of agreement, which were null and void, and which the witness supposed were to be cancelled: that the deed wras accepted unconditionally by the plaintiff, who has since continued in possession of the premises,
    The plaintiff offered to prove, by P. De Zang, that some time after the execution and delivery of the deed, he heard the defendant promise to pay the plaintiff, in case there was any deficiency in the number of acres. This evidence was objected to, but admitted by the judge. The witness testified, that some time after the deed was given, the plaintiff told the defendant, that he thought the farm would not hold out in quantity, and that the defendant ought to make some allowance. The defendant replied that he had no objection, and if the plaintiff would get the farm regularly surveyed, he would do what was right about it.
    The case was submitted to the court without argument.
   Thompson, J.

delivered the opinion of the court. This being a case by consent of parties, subject to the opinion of the court, matters of fact as well as of law are submitted to our determination. And according to my view of the case, there are several grounds upon which the defendant is entitled to judgment. The defendant, by his third plea, alleges that the deed executed by himself and wife, was delivered to the plaintiff, and accepted by him, in full performance, satisfaction and discharge of the covenants of the defendant, contained in the articles of agreement} upon which issue was joined. Whether this was a good plea or not, is a question which cannot arise here. The only inquiry is,. whether the plea was supported by the proof, and upon this point I cannot discover any room for doubt. The subscribing witness to the deed swears that at the time the same was executed and delivered to the plaintiff, it was unconditionally accepted, and declared to be in satisfaction of the articles of agreement, and that the same were null and void, and were, as the witness understood, to be cancelled; they being, as appears by the testimony of another witness, in the hands of a third person not present at the time. The testimony of this witness was not impeached, nor in any manner contradicted. The conversation testified to by He Zang, does not appear to have been offered with that view, and was too loose and indefinite to have any such effect. He only swears that the plaintiff, some time after the deed was executed and delivered, said to the defendant, he thought the farm would not hold out in quantity, and that the defendant ought to make some allowance; to which the defendant replied he had no objections, and if the plaintiff would get the farm surveyed, he would do what was right about it. If this conversation is entitled to any weight, it must be considered in the nature of a new agreement But in my conception, it implies an admission by the plaintiff, that he had no remedy upon the articles of agreement. Forbad such been his understanding of his rights, he probably would not have addressed himself to the equity of the defendant, by telling him he ought to make some allowance for the deficiency, but would have told him he was bound by his articles to make such allowance.Admitting an absolute promise to have been made, it would not aid the plaintiff’s right to recover in this action of covenant upon the agreement. His remedy, if any, must be by an action upon such, promise.

Articles of agreement for the conveyance of land are, in then nature, executory, and the acceptance of-a deed, in pursuance thereof, is to be deemed, prima facie, an execution of the contract, and the agreement thereby becomes void, and of no further effect. Parties may, no doubt, enter into covenants collateral to the deed, or cases may be supposed when the deed would be deemed only a part execution of the contract, if the provisions in the two instruments clearly manifested such to have been the intention of the parties. But the prima facie presumption of law arising from the acceptance of a deed, is that it is an execution of the whole contract; and the rights and remedies of the parties, in relation to such contract, are to be determined by such' deed, {Vnd the original agreement becomes null and void. This appears to me to be a sound and salutary rule, and conformable to the" doctrine of this court in the case of Howes v. Barker. (3 Johns. Rep. 506.) The Chief Justice, in that case, said he could not surmount the impediment of the deed which the plaintiff had accepted from the defendant; and that he thought himself bound to look to that deed as the highest evidence of the agreement of the parties. But in the case before us, we are not left to determine the legal effect and operation of a bare acceptance of a deed; for the parties, by their pleading, have put it in issue, as matter of fact, whether such acceptance was in full performance, satisfaction and discharge of the agreement; and the proof is, in my opinion, conclusivesthat the deed was so accepted; and the defendant, of course, is entitled to judgment; and this is the opinion of the court.

Judgment for the defendant.  