Powell v. Clark

5 Mass. 355

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1809
• Status: Published

Opinion

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

(a).

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.