Beall's Lessee v. Bayard , 5 H. & J. 127 ( 1820 )

Borsey, 1

delivered the opinion of the court. The point raised in argument by the appellant’s counsel is this i—Was the deed from Abraham Faw to Thomtis Beall, of Samuel, for the tract of land called The Brothers, located on the plots? And this depends upon the question, whether the deed does in legal operation convey the whole tract; because, if it does, the deed, in effect, was located as the patent of the tract appears to have been located. The deed, after reciting that Abraham Faw was seized in fee simple of the tract of land called The Brothers, lying in Allegany county, which was granted by the then Proprietor of Maryland to Thomas French; and that the said Faio had bargained and contracted with the said Beall for the sale of the said tract as shall not have been affected by older surveys, professes, for and in consideration of the sum of 535000, which had been decreed to him by the chancellor of Maryland, to convey unto the said Beall, “the said tract as corrected by a survey made by a decree of the honourable the chancellor of Maryland, the metes, bounds, courses and distances, being then established; to have and' to hold the said tract, thereby granted, unto the said Beall and his heirs.” It is obvious, from reading this deed, that the grantor only intended to convey so much of the tract as was within the metes, bounds, courses and distances, established by the chancellor'; and the consideration money which he received from Beall, was co-extensive with this intention. The recital in the deed most clearly evinces this intention, and the granting part expressly declares it, by stating that the chancellor had corrected and established the metes, bounds, courses and distances, of the tract. The decree of the chancellor is referred to by each party,as establishing the extent of the land intended to be conveyed, and they must be bound by it; and the words of thehabendum is perfectly consistent with this construction, as it uses the terms “the said tract of land hereby granted.” If - the deed in question had contained a general warranty* and Beall had been evicted,- it would hardly be contended, that Faw could be made to' respond in damages for the loss' of that part of the tract which did not lie'within the metes, bounds, courses and distances, as established by the chancellor; but such would necessarily be the result, if the deed operated to convey the whole of the tract as patented.

The court are of opinion, that the court below did tfót err in not permitting the deed to be read in evidence to the jury, as the same was not located oh the plots; and therefore •

JUDGMENT AFFIRMED.