Hess v. Cheney , 83 Ala. 251 ( 1887 )

CLOPTON, J.

— In Minge v. Smith, 1 Ala. 415, the bond for titles, after describing the lands by divisions and subdivisions according to the government survey, contained the following clause: “ The whole of the within described lands contain, in all, twelve hundred and sixty-eight and seventy-one one-hundredths acres.” It was held that this clause, being in a sentence entirely distinct from the description of the lands, was not descriptive, and, in order that it might have some office, that it was a covenant as to quantity. The general rule was recognized, that when there is a sale of lands according to the government survey, and these are taken as the standard of quantity, neither the vendor nor the vendee will be permitted to claim for loss or gain. While this case has not been in terms overruled, it has been more than once said, that it carried the doctrine of warranty as to quantity to a point beyond which it is unwise to extend. Wright v. Wright, 34 Ala. 194; Rogers v. Peebles, 72 Ala. 529. In 3 Washburn on Real Property, 427, the author observes : “ Sometimes the quantity conveyed is mentioned in the deed ; but, independently of an express averment, or covenant as to quantity, this is always regarded as a part of the description merely, and will be rejected if it be inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries.” In Rogers v. Peebles, supra, the principle is thus stated: “ When the land sold is described by definite boundaries, in regard to which there can be no mistake, if it be followed by a statement, as ‘containing -number of acres,’ or other phrase of like import, it is to be deemed a mere matter of description, and not as • a covenant warranting the quantity intended to be conveyed. The buyer, in such case, takes the risk of the quantity, in the absence of any element of fraud.”

In the deed made by appellee to appellant, the land is described as commencing at a designated point on the south bank of the Tennessee river, and thence up said river with its meanderings, and thence bounded by designated courses and distances and by the public road; and immediately following this description are these words,” “ and containing by survey two hundred and fifty acres in said tract.” There is no express averment of the number of acres, but the quantity is stated as ascertained by a survey previously made. On the authorities above cited, these words must be regarded as descriptive of the land, unless there is something which takes them out of the general rule. This is sought to be done by parol evidence, that the land was sold and purchased at thirty dollars per acre.

There were two tracts of land sold at the same time — one called the “river land,” and the other, the “mountain land.” Looking to the deed alone, both of these tracts were sold for a gross sum for the entire lands, and not at a specified price per acre. There is no pretense that the mountain land was sold by the acre. In the absence of allegation or proof of fraud or mistake, the deed is regarded as the sole memorial and expositor of the contract, which parol evidence is inadmissible to vary, contradict, or explain.— Winston v. Browning, 61 Ala. 80. Conceding that the appellant agreed to pay a stipulated sum per acre for the riyer land, if he also agreed to take it by a survey already made as fixing tbe number of acres, he took upon himself the risk as to quantity, in the absence of fraud, concealment, or misrepresentation, which is neither alleged nor proved. — Fleet v. Hawkins, 6 Munf. 188. In such case, the purchaser is entitled to whatever quantity is contained within the designated boundaries, though it be greater than the number of acres stated in the deed, and the vendor does not covenant as to the quantity stated therein. There is evidence that the grantee was present during part of the time the survey was being made, knew the quantity ascertained thereby, and agreed to take it by the survey.

It is further insisted that, as the number of acres con- • tained in the mountain land is estimated in the deed, the exact number of acres being unknown, the difference in phraseology in reference to the quantity of the land shows an intention to constitute the statement of the number of acres a covenant as to quantity. The difference in language merely shows an agreement to sell the mountain land by an estimated quantity, and the river land by the quantity fixed by the previous survey. Construing the entire deed, its legal effect is not a covenant as to the quantity of the river land.

The evidence of the surveyor, Duckett, was properly excluded. The Tennessee river was the north boundary of the land. The ownership of appellee extended to the margin of the water at its ordinary stage, and the deed conveyed the land between high-water mark and the ordinary stage of the water.— Williams v. Glover, 66 Ala. 189. The surveyor states that he surveyed only to the top of the bank. Without connecting proof of the quantity of land contained between the top of the bank and the water at its ordinary stage, his survey does not tend to show the number of acres in the tract.

Affirmed.