Jackson ex dem. Staring v. Defendorf — 1 Cai. 493

Majority

p. 616

Jackson, ex dem. Staring, against Defendorf.

Headnote

If a lot be granted by deed, and its number specified with a reference to a map, the whole lot will pass by the deed, though it there be mentioned as containing fewer acres than it absolutely does.

This was an ejectment to recover lands in the county of Herkimer.

The plaintiff, in support of his title, adduced a deed to his lessor, by which Nicholas Staring granted to him one certain lot of land, distinguished by the name of lot No. 10, in the new patent, in the second tract, on the south side of the Mohawk river, “ butted, bounded, and described, as can be more fully made to appear by a map of the said patent, the said lot No. 10, said to contain two hundred acres, more or less.” The deed then went on specifying the “said two hundred acres” in the habendum, covenant of seisin, and clause of warranty. It appearing, however, that lot No. 10, contained more than two hundred acres, the judge at the circuit ordered a nonsuit to be entered. Application was now made to set aside this nonsuit; and the only question was, whether the deed would carry the whole lot, as it contained more than two hundred acres.

The intent was to convey the whole lot. It referred to the map.^[1] When the quantity of acres is

(a) (a) Where lands had been settled under a survey by a deputy from, the surveyor-general, but upon a wrong line, and the patents for those lands, without specifying metes and bounds, courses or lines, but described them by a reference to a map in the office of the secretary of state “ as there known and distinguished,” it was ruled that the locations should be corrected by the map referred to. Jackson v. Hunter, 1 Johns. Rep. 495 . The words “ more or less” are held to be matter of mere description; therefore, if a man convey his land specifying the quantity 100 acres “be it more or less,” if it turn out only 60 acres, even equity will not relieve the vendee, for it is his own laches. Anon. 2 Freem. 106. So if lands be mentioned in a conveyance as containing so many acres, “ by estimation," for a small quantity over, the *617 purchaser is not liable, nor the vendor for a small deficiency. Sir Cloudesly Shovel v. Bogan, 2 Eq. Ca. Ab. 688, pl. 1. How much wiU be covered by the words more or less is not accurately defined. In a lease of ten acres if they fall short three, the lessee, it is said, must be content. Day v. Fin, Owen, 133. On the other hand, if it specify the land by name, and add “containing 10 acres,” when in truth it contains 20, the whole will pass. Thetford v. Thetford, Savil, 114. We have ruled that a conveyance of a lot by name, “as said to contain 600 acres, be the same more or less,” is a performance of the condition of a bond to convey that lot “containing 600" acres, though the lot fell short 125 acres. Mann & Toles v. Pearson, 2 Johns. Rep. 37 . Note, the consideration money paid was a gross sum, not a certain sum, at and after the rate of so much per acre. See also Van Wyck v. Wright, 18 Wend. 157 ; Root v. Puff, 3 Barb. Sup, J. Rep. 353; Luce v. Carley, 24 Wend. 451 ; Lush v. Druse, 4 Wend. 313 . Jackson v. McConnell, 19 Wend. 175 ; Jackson v. Banenger, 15 J. R. 471 Mann v. Pearson, 2 J. R. 37.

p. 617

mentioned, *it is only as descriptive of the lot [*494] according to common acceptation. The non suit must be set aside.

Nonsuit set aside.