#### Julius Austrian *vs.*Warren H. Dean.

June 23, 1876.

Deed — Description—Quantity.—The tract of land conveyed by deed was described as “the west half of the north-east quarter of the north-east quarter of section 5, town 47, range 4, in the district of lands subject to sale at Bayfield, Wisconsin, containing twenty acres, more or less, according to the government survey.” Held, that the words expressing the quantity are merely words of description, and do not amount to a covenant as to the quantity.

By contract under seal, made March 25, 1872, the defendant agreed to soli and convoy in fee to plaintiff “ the west half of the north-east quarter of the north-east quarter of section numbered five, (5,) in township numbered forty-seven, (47,) north, of range numbered four, (4,) in the district of lands subject to sale at Bayfield, state of Wisconsin, containing twenty acres, more or less,” for $10,000, of which $1,000 was to be paid upon the execution of the contract, $3,000 in ninety days thereafter, $3,000 in one year, and $3,000 in two years from the date of the contract, the deferred payments to bear interest at 10 per cent, per annum, and to be, secured by mortgage on the property convo3md. The two first payments having been made, the defendant executed and delivered to plaintiff a warranty deed, in the usual form, in which the land is *63described- exactly as in the contract, with the words added, *“*according to the government survey thereof,” and the plaintiff made and delivered to defendant his negotiable notes, secured by mortgage on the property conveyed, for the deferred payments, pursuant to the contract. All the instruments bore the same date as the original contract.Both parties resided, and the contract was made, at St. Paid, Minnesota, and the land sold was situated in Ashland county, Wisconsin. The tract sold and conveyed actually contained but seventeen and fifteen one-hundredths acres, in fact, and according to the United States government survey. All the purchase-money, except the note for $3,000 due March 25, 1874, had been paid by plaintiff before he discovered the deficiency, and, upon making the discovery, he brought this action in the district court for Bamsey county, for relief against the mortgage and last note, and praying that the note might be surrendered, and the mortgage can-celled, on payment by plaintiff of the amount due, less $1,580, compensation for his loss by the deficiency.

The action was tried before Willcin, J., who found the foregoing facts, and, also, that the contract expressed the .actual agreement of the parties, and that there was no fraud or misrepresentation on the part of the defendant, and ordered judgment for defendant, which was entered, and the plaintiff appealed.

*I. V. B. Heard,*for appellant.

*Harvey Officer*and *Bigelow, Flandrau <& Glarlc,*for respondent.

Gileillan, G. J.

The plaintiff’s action is based upon a deed by defendant to him of certain real estate, described in the deed as ‘ ‘ the west half of the north-east quarter of the north-east quarter of section 5, in town 47, of range 4, in the district of land subject to sale at Bayfield, state of Wisconsin, containing twenty acres, more or less, according to the government survey thereof,” which appears to have been sold for a gross sum. It ,is claimed that the words, *64“containing twenty acres, more or less, according to the government survey thereof,” amount to a covenant that by the government survey there are twenty acres in the piece described.

Words expressing the quantity, in a deed of a tract otherwise definitely described, are held to bo merely additional description, and are controlled by the definite calls in the deed, and, therefore, immaterial. Being inserted merely as matter of description, and not for the purpose of covenant, it is not material, where there is no fraud or express covenant as to quantity, whether the quantity is more or less than that stated. *Powell*v. Clark, 5 Mass. 355 ; *Jackson*v. *Moore,*6 Cowen, 706 *; Jackson*v. *Defendorf,*1 Caine, 493 ; *Mann*v. *Pearson, 2*John. 37.

Judgment affirmed.