
    William Dagne against Daniel King and Elizabeth his wife.
    Where there has been a conveyance of lands by courses and distances which truly describe the premises, but the quantity of land said to be conveyed, is deficient, and no express covenant insuring such quantity, covenant will not lie to recover damages.
    Covenant. Plea, covenants performed. The plaintiff grounded his suit on an indenture between the parties, dated 2d August 1791, whereby the defendants in consideration of 550I. conveyed to the plaintiff a certain tract of land, situate in Bristol township, in the county of Philadelphia, by metes and bounds, containing 66 ^ acres, (which had been conveyed to King by a sheriff’s deed on the 6th December 1784) subject to the payment of a mortgage of 325I. with a covenant of special warranty therein. The breach assigned was, that the lands sold did not contain the quantity of 66^ acres, but was deficient therein at least six acres, and that the defendants interrupted the plaintiff in the quiet enjoyment thereof.
    
      Mr. Heatly in support of the action insisted, that the defendants had been guilty of a breach of their covenant. It was admitted, that there was a deficiency in the quantity of 6 acres, but that the courses and distances in the deed exactly corresponded with the boundaries of the land. The object of the plaintiff was to purchase a farm of 66^ acres, and the defendants conveyed him that quantity. There is no set form of words necessary to be made use of in creating a covenant, and therefore any will do which shew the parties concurrence to the performance of a future act. Bull Ni. Pri: 4to ed. 153.
    There are some words which of themselves import no express covenant, yet in certain contracts amount- to such, and are therefore covenants in law; as where a man leases lands for years by the words concessi or demisi, if the lessee be evicted, he may have covenant; so if an assignment be made by the word grant, so the words yielding and paying make a covenant *for paying of rent. 5 Co. 17. Carth. 98. 2 Rol. Rep. 399. Stiles, 406. Shep. Toucsht. 160, L 169. On the whole of the instrument it may be fairly inferred, that the defendants covenanted, that the lands contained 66^ acres.
    Mr. Thomas for the defendant argued, that there was no. express covenant in this deed, insuring to the plaintiff the quantity of 66^ acres; nor any technical words, whereby an implied covenant could be raised for this purpose. The deed does not contain the words ‘ ‘ grant, bargain and sell, ’ ’ which (1 State Raws 79,) would amount to an implied warranty; but if even those words had been inserted, they would have amounted to no more than a covenant, that the party was seized of an indefeasible estate in fee simple, as to the lands described therein. The indenture in question refers to the sheriff’s deed, and the plaintiff has peaceably enjoyed all that was meant to be conveyed to him. The courses and distances are expressed in the deed, and it was the plaintiff’s negligence in not having them protracted by a skilful surveyor. The deficiency is obvious on the face of the deed, and the case is analogous to the sale of a horse without an ear or tail, to which a common warranty does not extend. 3 Bl. Com. 165. The vendors have sold lands within certain metes and bounds, which were vested in them under a sheriff’s sale, and if upon calculation they should be found to contain 100 acres, no recovery could be had on account of the surplus land, and therefore on the principles of reciprocity, the vendee ought not to recover, when it happens there is a deficiency.
   Per curiam.

This action, instituted against the husband and wife, is novel to us, as well as the question itself. If the plaintiff wished to secure himself, as to the lands holding out 66 acres, he should have had an express covenant for,, that purpose. It was his own folly not to have had the quantity of land contained within the metes and bounds described, calculated. Here is a sale of lands by courses and distances, which are truly descriptive of the premises. If there had been a surplus of 20 or 30 acres, the seller must have been satisfied with the sum he had received, and could obtain no further compensation therefor; and it would be unreasonable there should be a recovery against him, where it turns out to be short in quantity.

Approved and followed in 1 S. & R., 169.

Cited in 77 Pa., 195, in support of tbe proposition that where a contract is executed by deed and bond, or other security taken for the unpaid purchase money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess.

Cases of this kind must frequently have happened before, and yet we never heard of a suit being brought under such *3241 circum*stances. There appears to us to be neither J an nor implied covenant on which the plaintiff can maintain his action.

Verdict for the defendants.

Mr. Heatly afterwards moved for a rule to shew cause why a new trial should not be granted, but his motion was denied, the case appearing to be too plain to admit of further discussion.  