Wright v. Wright , 34 Ala. 194 ( 1859 )

STONE, J.

While we are indisposed to unsettle the principles declared in Minge v. Smith, 1 Ala. 415, we acknowledge that, in our opinion, those principles should not be extended. — See Large v. Penn, 6 Serg. & R. 488; Allison v. Allison, 1 Yerg. 16; Snow v. Chapman, 1 Root, 528; Rawle on Cov. 520; Butterfield v. Cooper, 6 Cowen, 481; Keyton v. Branford, 5 Leigh, 39 ; Foley v. McKeowu, 4 Leigh, 627 ; Harrison v. Talbot, 6 Dana, 258. See, also, the labored and learned collection of authorities in the opinion of the chancellor.

The assignments of error in this case question the correctness of the chancellor’s construction of the clause in the deed relating to quantity. All the authorities agree, that if the statement of quantity be matter of description, the vendor, in the absence of fraud, is not bound to make good the deficiency, and. the vendee is not required to surrender any excess. In sales made in gross, this rule is of more general application, than when the sale is made per acre.

In the case of Minge v. Smith, supra, this court attached importance to the fact, that after each parcel of the land had been described according to the government surveys, the bond, in a sentence entirely distinct, contained the clause of quantity, in these words: “ The whole of the within described lands contain in all twelve hundred and eighty-eight and seventy-one hundredths acres.” The court, in another place, added, “The land, we'have seen, was very folly described before the introduction of the clause we are examining, so that it cannot be held to be descriptive.”

The clause in the present deed is entirely different. After describing the lands by numbers, and by metes and bounds, it proceeds: “ This, together with that first described, containing seven hundred and two acres, and the same being the settlement of lands at present occupied by the said John Wright.” Now, although the words Avhich precede the statement of quantity may have furnished an accurate and completé description, still the parties did not rest on this. In continuation of the clause as to quantity, and as part of the same sentence, they superadded the clause, purely descriptive, that the same were the settlement of lands at present occupied by the said John Wright. We think this case distinguishable from Minge v. Smith.

If the lands conveyed had contained more than seven hundred and two acres, we apprehend no one would contend, that the vendor could claim payment for the excess; yet his claim in the supposed case would be equally meritorious with that which is set up in the present suit.

The decree of the chancellor, so far as the same is presented by the assignments of error, is affirmed.