Butterfield v. Cooper

6 Cow. 481

Opinion

Curia, per

Savage, Ch. J.

Taking the two memo-randa together, the agreement was, that the defendant should convey “ the Haivkins place,” as expressed in the memorandum signed by the defendant. According to the memorandum signed by the plaintiff, the agreement was for the purchase of “ the Hawkins place, containing one hundred acres.” Suppose the defendant had executed a deed in the language of the agreement, “ the Hawkins place, containing one hundred acres ;” how much would the purchaser have taken ? The Hawkins place was a piece of ground, known by that name, because Hawkins had occupied it, and it was set off to him by the defendant in person. I apprehend that such a conveyance would authorize the grantee to hold all that was actually laid off to Hawkins, as far east as the stake stuck by the survey- or in the presence of the defendant and Hawkins, without regard to the quantity of acres. The words, “ one hundred acres,” were matter of description. It seems to me similar to conveying a lot by its number, containing 600 acres. The purchaser takes the lot, whether it contains more or less than the specified quantity. This is like the case of Mann v. Pearson, (2 John. Rep. 37,) where, in a deed of lot 74, Lysander, containing 600 acres, the contents were said to be matter of description merely. The court considered the number of the lot as a reference to the metes and bounds. In this case, the description of “ the Hawkins place,” referred to the actual location of the lot, as possessed by Hawkins.

I am of opinion the judge decided correctly ; and that a new trial should be denied.

New trial denied.