
    Robert Powell versus Hezekiah Clark.
    In a deed of conveyance of land, as limited by certain monuments, lines and courses, and also-as containing so many acres and rods, the words expressing the quantity do not amount to a covenant that the land contains that quantity, but are merely descriptive of the land.
    In an action of covenant broken, the plaintiff declares upon a deed by which the defendant conveyed to him two several parcels of land in Lanesborough, and covenanted that the first of the parcels contained twenty-nine acres and twelve rods, when in fact it contained but twenty-five acres; and that the second parcel contained six acres and one hundred rods, when in fact it contained but four acres, and so the defendant his covenants aforesaid has broken.
    * The defendant prays oyer of the deed declared on, [ * 356 ] and has it. In the deed the defendant, for a valuable consideration, conveys to the plaintiff in fee two tracts of land. The first is described as the easterly end of a fifty acre lot on what is commonly known by the name of Shirley’s Grant, which the defendant bought of Thomas Powell and Ephraim Powell, Jun., the said easterly end extending westwardly as far as the main run of water, which passes through said land, containing twenty-nine acres and twelve rods of ground. The second tract is described as lying on a stream of water called MUlbrooTc, which the defendant bought of Samuel Warren, which he then bounds by certain monuments, lines and courses, coming round to the first boundary, containing six apres and one hundred and thirty rods of ground. And there is a covenant to warrant the granted premises against the lawful claims of all persons.
    The defendant then demurs for cause, and shows for cause that the covenants alleged are not contained in the deed. And the plaintiff joins in the demurrer.
    
      Hulbert, of counsel for the plaintiff
    being called on by the Court to support his declaration, observed that although the deed declared on . contained no express covenants of the effect alleged, yet there was an implied engagement that the tracts of land contained as much as the grantor said there was. Purchases of land in the country are usually negotiated and made by the acre ; the price per acre being agreed on, the purchase money is thus ascertained, and the deeds are universally written in this form, where the precise quantity is intended to be conveyed and assured, and the purchase money estimated accordingly. On the other hand, where the quantity is not intended to be engaged, the practice is as general to add some words expressive of uncertainty, as about so many acres, 
      or so many acres, more or less. At any rate, the general opinion in the country is that such a description as is used in this deed implies a * covenant that the land conveyed shall [ * 357 ] contain the quantity specified; and if this opinion is unfounded, it would be well that the community should be better informed.
    
      Williams, for the defendant
    was stopped by the Court, and the action standing continued nisi, the opinion of the Court was delivered at the following March term in Suffolk, by
   Parsons, C. J.

The question before us in this action depends upon the construction of the deed declared on; and we are of opinion that the words expressing the quantity of land in the two tracts do not amount to a covenant, but are merely descriptive of the lands conveyed. Each tract is definitely limited, and any sui veyor could easily 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 estimation of the defendant, he should have taken care that an express covenant was introduced into the deed.

If the boundaries of the tracts had included more than the quantity expressed, yet all within those boundaries, which the defendant had a right to convey, would have passed by the deed. So, if less was contained, the plaintiff has title only to what was in fact included. In his purchase he must therefore be considered as relying on the boundaries described, and not on the contents mentioned.

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 mere description; although the quantity mentioned is * an uncertain [ * 358 J part of the description, and must yield to the location by certain boundaries, if there is a disagreement, whether the quantity mentioned is more or less than the quantity actually contained within the limits expressed. The covenants declared on in this case, therefore, do not appear to have been made by the defendant, and the declaration must be adjudged bad .

Note. After delivering this opinion, the Chief Justice observed that on looking into the copies there appeared to be an inaccuracy as to the second tract; the declaration stating the covenant to be. that that tract contained six acres and one hundred rods; but in the deed read, the contents of that tract are expressed to be six acres and one. hundred and thirty-rods. This, his honor observed, might have been an error in the copies, and as it did not affect the principle on which the Court had decided, no regard had been paid to it.

Declaration adjudged insufficient. 
      
      
         Beach vs. Stearns, 1 Aiken, 325. — Perkins vs. Webster, 2 N. H. Rep. 287.
     