
    
      J. R. Morris v. W. A. Owens.
    
    In a deed conveying land, the descriptive part ascertained a whole tract, declared that part of it was claimed by Goode, and specified that the grantor “ only conveys two hundred acresthat he does not convey the part claimed by Goode, but if it should be found that besides the part so claimed, there is more titan two hundred acres, the grantee shall have it: general warranty of the premises added. It was found that Goode’s claim covered all but one hundred and forty-two acres, and the grantee sued in covenant, alleging a warranty of two hundred acres, and a breach by reason of Goode’s claim — AeMthat a proper construction of the deed, disclosed a stipulation that Goode’s claim should not cover more of the tract than the excess over two hundred acres: that there was, in effect, a covenant warranting that quantity, and that the plaintiff was entitled to recover the value of fifty-eight acres. .
    
      Before Frost, J. at Barnwell, Extra Term, July, 1848.
    This was an action of covenant on a deed of release, whereby the defendant conveyed to the plaintiff all that tract, &c., situate, &c., “ said land was granted to John A. Owens, December 5th, 1825, for two hundred and seventy acres ; but a part thereof is claimed by the estate of Robert Goode; the said W. A. Owens only conveys two hundred acres ; that part claimed by the estate of Goode is not conveyed ; and if it should be found that there is more than two hundred acres, besides that claimed by Goode’s estate, the said John R. Morris is to be entitled to it.” The deed was dated April 2d, 1846. On a resurvey, it was ascertained that the Owens’s grant, .exclusive of the claim of Goode’s estate, contained only one hundred and forty-two acres. Hext testified that, about three years ago, he had made a survey of the lands of the estate of Goode for partition, and had run out the part of the Owens grant, claimed by the estate. It was marked on the ground by two corner stakes, on the line of the old survey, and-by a corner stake, in the body of the grant. This survey and location was made before Owens sold to the plaintiff.
    The jury were instructed that the effect of the covenant was to warrant the quantity of two hundred acres ; that, by the deed, the defendant admitted a legal claim of the estate of Goode to part of the Owens grant, and- exclusive of that claim conveyed to the plaintiff two hundred acres. Respecting the extent of the Goode claim, they were instructed that the stakes which were put down, to indicate the extent of Goode’s claim, by Hext, were evidence of the location of it, in the same manner as a ditch or hedge or other marked line would be, and that if the defendant, at the time the deed was executed, had notice of the puting down of the stakes, that would be evidence of his admission of the extent of Goode’s claim. The jury found for the plaintiff the value of the fifty-eight acres which were deficient.
    The declaration set out a release by the defendant to the plaintiff of “ that tract of land, containing two hundred acres,” and the covenant of the defendant to warrant and defend the said premises to the plaintiff; and set out substantially, though informally, a breach, in that the defendant was not lawfully seized, &c. of the said tract, but the heirs of Goode claimed it, and the defendant refused to warrant and defend the said tract of land against the claim of the Goodes.
    .The defendant craves Oyer, and sets forth the deed; ánd pleads, secondly, that the plaintiff ought not to have his action, beause “ that, by the said deed of covenant, the said t defendant did not warrant any part or portion of the land which was claimed by the heirs of Robert Goode.” The replication to this plea is that the defendant, “ by his deed of covenant, did warrant to the plaintiff the said land, a part of which was claimed by the heirs of Robert Goodeand tenders issue to the country, which is joined.
    The third plea avers that the defendant, “at the time of the execution of the said deed of covenant, was lawfully seized in fee and possessed of all the tract of land, and every part thereof which he, the said defendant, did covenant to warrant and defend to the plaintiffand tenders issue, which is joined.
    The fourth plea avers that the defendant, “ from the time of the execution of the said deed of covenant, hath always hitherto warranted and defended to the said plaintiff the said tract of land, and every part thereof, which he, the defendant, did covenant to warrant to the plaintiffand tenders issue, which is joined.
    It was held that the issues, presented by the third and fourth pleas, were pertinent and material, and sufficient to support a verdict on the count in the declaration.
    The defendant appealed, 1. Because his Honor erred in charging the jury that the deed of covenant sued on was a warranty of the number of acres; whereas it is submitted that the number of acres was merely stated in the deed as matter of description.
    2. Because the breach assigned in the declaration was not sustained by the evidence.
    3. Because, under the pleadings, and the issues made thereby, the evidence was insufficient to sustain the plaintiff’s action.
    4. Because the verdict was contrary to law and evidence.
    ARGUMENT.
    Bellinger, for the motion,
    said defendant had a right that the plaintiff should show an eviction, or a paramount title in some other, to the two hundred acres. — Cited Lamick v. Hawkins, 1 Rich. 417; Bond v. Quattlebum, 1 M’Cord, 584.
    
      Poeples, contra,
    said defendant was precluded by his own deed, and bound by the recitals therein, making a show of paramount title, &c. unnecessary — Cited 1 Grlf. Ev. 26, 27 and 25; Talbert v. Mason, 2 M’C. 440; Peay v. Briggs, 2 N. and M’C. 184, and 2 Mills, 98 — said this was a covenant of seisin, as well as of titles, <fcc. — that the two hundred acres were granted, not more or less, but two hundred acres; and that it was a part of the covenant, and not a matter of description.
    
      
      'Deed of Conveyance.
    
    State op South-Carolina, i Barnwell District.
    Know all men by these presents, that I, William A. Owens, of Barnwell Distiict, in the aforesaid State, in consideration of three hundred dollars, to me paid, by John R. Morris, of said District, in the State aforesaid, have granted, bargained, sold, and released, and by these presents do bargain, sell, and release unto the said John R. Morris, all that plantation or parcel of land situate in said District, on the waters of Jackson's branch, near Coodes's mills, adjoining lands of Joseph Allen, estate of R. Goode, Elizcibeth Thomas, and others. Said land was granted to John A. Owens, thé 5th day of December, 1825, for two hundred and seventy acres, but a part thereof is claimed by the estate of Robert Goode; the said W. A. Owens only conveys two hundred acres; that part claimed by the estate of Goode is not conveyed ; and ifit should be found that there is more than two hundred acres, besides that claimed by Goodes’s estate, the said John R. Morris is to be entitled to it. Together with all and singular, &c.
   Wardlaw, J.

delivered the opinion of the Court.

This case depends upon the construction that shall be given to the words that were employed, by the grantor, in describing the subject of his conveyance and covenant. It is one of the many cases that are perplexed by the unskilfulness of those who sometimes undertake the business of conveyancing. Our familiar forms are easily copied in all those parts which are common to all ordinary conveyances; hut the description of the subject must always be adapted to the particular instance, and, therefore, in this, one of the most important parts of every conveyance, blundering and miscarriage most frequently occur.

By paraphrase of the descriptive part of the deed before us, it will be seen that it first loosely mentions some of the boundaries of a whole tract; second, defines the whole tract by specifying to whom and \vhen it was granted for a certain number of acres ; third, makes known that part of it is claimed by the heirs of Robert Goode; fourth, declares that only two hundred acres are conveyed; fifth, declares that the parcel claimed as aforesaid is not conveyed, but all the excess over that claim is; and sixth, provides that the excess over the claim shall belong to the grantee, even if it should be found to be more than 200 acres. The substance is the same as if the description had been written thus: Two hundred acres of a tract of land which was granted to John A. Owens, together with whatever more there may be found to be (if any more there be) of the said tract, which is not claimed by the heirs of Goode.” Or thus: All the tract grantéd to t Owens, except the part claimed by Goode, which exceptionv shall not reduce the tract below two hundred acres.”

2 M’C. 440.

1 M’C. 584. 2 sPear>68•

5 Mass. 355.

19 Johns. 97.

The declaration that the grantor conveys only 200 acres, is equivalent to a declaration that he does convey 200 acres: the reference to the claim of Goode, as a thing whose extent is to be found, coupled with the conveyance of 200 acres, is a representation that, at least, 200 acres will remain after satisfaction of that claim ; and the provision for the grantee’s right, in case that more than 200 acres should remain, with entire silence as to the case of less remaining, and the omission of the words “ more or less,” or any words expressive of uncertainty, show that quantity was in the contemplation of the parties, and that the number of acres was an essential part of the contract, and not a mere circumstance added to a description already precise. The intention from the whole appears to have been to create a stipulation, that the part conveyed should be at least two hundred acres.

The intention to stipulate as to quantity, seems, in this case, stronger than in the case of Talbert v. Mason, for there was the description of a tract whose general situation was specified, containing 360 acres, bounded by lands of M. W. p. and others. The only circumstances giving force to the mention of quantity, were, the indefiniteness introduced by the word others, and the omission of more or less ; and the case is a dangerous one, which should be carefully considered, when its principles are to be at all extended. The decision, now made, does not impugn the authority of Bond v. Quattlebum, Bauskett v. Jones, or any other case which decides that where, by a plat, a reference to monuments and boundaries, or other certain description, a tract of land is ascertained, the number of acres mentioned in the description is not essential.

Other cases have been strong pressed upon the majority of the Court, in opposition to the view which they have taken ; but it is believed that none of them will, when fully exam-ed, be found to be at all in conflict with this opinion. A detail here of what may be easily referred to elsewhere is useless, and, therefore, those cases will be hastily passed over.

Powell v. Clark, recognizing fully that the contract, in such cases, depends upon the intention to be collected from the deed, decides only (as our cases last above mentioned do) that when the description is otherwise certain, the quantity expressed is immaterial.

In Whallon v. Kauffman, turning also upon intention and construction, there was a conveyance of one-half of a tract, whose limits were ascertained, except parcels which had been sold to S. II. and M. — “ the said half, over and above the exceptions, containing, by estimation, 600 acres, but warranted to contain at least 500 acres” — and general covenants were added. The grantee enjoyed more than 500 acres— but other parts, beyond the exceptions, were taken away by paramount title. It was held that the general covenants were restrained by the special one, so that there was no right of complaint, so long as 500 acres were held under the deed. The case before us is the converse of that: it is as if complaint had, there, been made that the half tract was reduced below 500 acres. If a general covenant is restrained, by a particular one, so it may be confirmed and explained, by a particular one; and here the general warranty is aided by the stipulation, (which a construction of the deed discloses,) that the quantity should be at least 200 acres.

3d vol. MSS. Columbia, p. 386, 503.

The case of Waters v. Caldwell, which was twice in the Court of Appeals, and never reported, is of very little value; for it presented merely a question of fact, whether a line had, by agreement, been established between two parties, who claimed under deeds made, at different times, by the same grantor. In the last opinion, Judge Colcock refers to 5 Mass. 355, and distinguishes the case, then on hand, from Talbert v. Mason, (perhaps confounding the two in his statement of them) — but he decides, only, that the Court would not disturb a verdict found upon doubtful evidence.

To return to our case; the stipulation as to quantity, taken in connexion with the words which were used concerning Goodes’s claim, amounts, in effect, to a covenant that that claim does not cover more of the grant than the excess over 200 acres. The breach assigned in the declaration is substantially a breach of the covenant thus expressed; and although we see enough to believe that the pleadings have not been very formal, we are of opinion that the result which has been attained, may be allowed to stand. It is conformable to our view of the rights of the parties, under the deed ; is supported, as we must presume, by just conclusions, drawn by the jury, from the evidence; and is such as correct pleading would have reached. So far as we are enabled to perceive, the pleading which has been had may suffice to sustain it.

The motion is dismissed.

Evans, J. — Frost, J. — and Withers, J. — concurred. •

Motion refused.

O’Neall, J.

dissenting. — I have come to a different conclusion from that attained by a majority of the Court.

It is manifest, upon reading the plaintiff’s deed from the defendant, that for every foot of land which it conveys, the defendant’s seizin, at the execution of the deed, is unquestionable. His deed expressly declares, “ that part claimed by the estate of Goode, is not conveyed.” The boundaries given, in the deed, are, inter alia, “ the estate of R. Goode.” Take either the refusal to convey, or the boundary, and it is manifest that the land from which the deficit in the quanity arises, was not conveyed. How it can be pretended that the covenant of seizin, or quiet enjoyment, has been broken, I confess I do not perceive. The true rule is stated in the U. S. Digest, 1st vol. Title Covenant (c.) sec. 47 — “ The covenants of warranty, in a deed, do not extend to quantity of acres, unless so expressed.” The cases referred to seem to me to fully sustain the position. The case of Powell v. Clarke will be enough for my present purpose. The deed5 of the defendant, in that, case, conveyed to the plaintiif, in fee, two tracts of land. They were described the first, as the easterly end of a fifty acre lot, on what is commonly known by the name of Shirly’s grant, which the defendant-bought of Thomas Powell and Ephraim Powell, jr., the said easterly end extending westwardly as far as the main run of water, which passes through said land, containing 29 acres and 12 rods of ground. The second tract is described, as lying on a stream of water, called Millbrook, which the defendant bought of Samuel Warren ; and then the boundaries, by monuments, lines, and courses, are given, coming round to the first boundary, containing 6 acres and 130 rods of ground. There is a covenant to warrant the granted premises against all persons.

Mass. ReP-5 ‘

C. J. Parsons, delivering the judgment of the Court, says, in a conveyance of land, by deed, in which the land is certainly bounded, it is very immaterial whether any or what quantity is expressed ; for the description, by the boundaries, is conclusive. And when the quantity is mentioned, in addition to a description of the boundaries, without any express covenant that the land contains that quantity, the whole must be considered as a mere description.”

In the case before its, the land is as definitely described by boundaries, as was done in Powell v. Clarke. It is described, all that plantation, or parcel' of land, situate in said district, on the waters of Jackson’s branch, near Goodes’s mill, adjoining lands of Joseph Allen, estate of Goode, Elizabeth Thomas, and others. Said land was granted to John A. Owens, 5th December, 1825, for 270 acres, but a part thereof is claimed by the estate of Robert Goode ; the said W. A. Owens only conveys 200 acres; that part claimed by the estate of Goode is not conveyed ; and if it should be found there is more than 200 acres, besides that claimed by Goodes’s estate, the said John R. Morris is to be entitled to it.” Take this description and ask, is there any difficulty in ascertaining precisely'the land sold ? The boundaries would give the result. For there is no dispute except with Goodes’s estate; when that boundary is reached, the plaintiff’s land is located by But take another means, the grant to Owens every line is delineated, and its location is easy; but it conflicts with Goodes’s land. The defendant said in his deed, I don’t convey that: run it off, and the balance is the land conveyed. Of this, it might be said, in the language of C. J. Parsons — the “ tract is definitely limited, and any surveyor could ascertain its contents, and the plaintiff might have known the quantity of land contained, within the limits described, before he concluded his purchase, by taking the proper measures. If to avoid that trouble, he chose to rely on the estimate of the defendant, he should have taken care that an express covenant was introduced into the deed.” How aptly do these words apply to this case ! Here, the party says, I only convey 200 acres, after giving a full description; but adds, I do not convey Goodes’s claim, — if, however, there be more than 200 acres left of the grant, after Goodes’s claim be cut off, you are to have it. What is that, but estimating the quantity ? and as in Powell and Clarke, where the quantity was distinctly set down, without qualifying words, does it not require an express covenant as to quantity, to give the plaintiff a title fo recover?

2 M’C. 440.

3 MS. decís. C°l* ° '

But it is said the case of Talbert v. Mason controls this question. But I apprehend that it cannot do so, for several reasons : 1. That case was on a bond to make titles to land. It may be, that in such a case, (where titles were not executed, and where the recovery was not on the title to the land, but on a question of compensation, and where the land was alleged not to be conveyed according to the description in the contract of sale,) the description, in all its parts, constitutes the covenant to be complied with. But that is not so, on the covenants in a deed. The questions upon them, are: 1st. Was the grantor seized of the land conveyed by this deed ? 2d. Has the vendee quietly enjoyed the same ? Both these questions are obliged to be answered affirmatively here, and of course the plaintiff should not recover.

2. In that case, however, the judgment in favor of the plaintiff was rested upon the ground that the boundaries were uncertain, and hence the quantity was necessary to make out the description. In this case, there is no such uncertainty.

That case was decided May Term, 1823. In January, 1826, the case of Waters v. Caldwell underwent the review 0f three of the Judges, who gave the judgment in Talbert v. Mason. In it, the deed from Sarah Duncan conveyed part of a tract granted to herself, and described it as 1Ó0 acres, part of the grant to the said Sarah, and ajoining land of her, the said Sarah. It was undertaken to control the quantity, by proving a line which would make the plaintiff short 18 acres of her quantity. In passing upon the case, Colcock, J. undertakes to distinguish, it from Talbert v. Mason, and, strange to say, adopts and cites the very case of Powell v. Clarke,, which is utterly at war with Talbert v. Mason, unless the latter be put on the ground that it is on a bond for titles, in which no question of seizin, but one of description merely, arose. He says, “ the deed (meaning Sarah Duncan’s deed) differs in a material point from that in the case of Talbert v. The executors of Mason; there the only description was 100 acres, part of such a tract; here the deed mentions a quantity, and also refers to a plat annexed: the plat is not found, but the deed declares that the land purchased is designated by metes and bounds, and in such case, the quantity may be controlled by the boundaries.”

2 M’G'440

5 Mass. 355.

2 Spears, 68.

It is worthy of remark, how completely that opinion mistook the case before the Court, and that of Talbert v. Mason. In the case before the Court, the deed contained “ the only description of 100 acres, part of such a tract.” In Talbert v. Mason, the description was, situate near the village of Cambridge, in Abbeville and Edgefield districts, on Henley’s .creek, waters of Saluda river, containing 360 acres, bounded on lands belonging to James McCracken, Wm. Williams, Catlett Conner, and others.”

The case of Bauskett v. Jones decides, however, this very question. For there it was held, that a general warranty, such as in this deed, did not extend to quantity.

Richardson, J. concurred.  