#### Thomas A. Peden *v.*Archibald Owens.

Bill for the specific performance of an agreement to convey lands, decreed to be executed in the terms and according to the description of the lands contained in the agreement, though according to the description the terms used would seem to extend the land beyond the known boundaries of the tract, and to include more than the party had a right to convey, with liberty to proceed by action at law on the warranty.

No abatement in the price, will be made by this court, to the purchaser of a tract of land, designated by known boundaries, though it may be deficient in the estimated quantity, where there is no fraud or misrepresentation on the part of the seller.

*Before HARPER, Chancellor, at Laurens, June Term,*1838.

This case came up on an appeal from the decree of his honor, Chancellor Harper. The decree, which contains a full statement of all the facts in the case, is as follows:

“ On the 18th day of , 1836, defendant executed an agreement to convey to the complainant,-a certain, tract of land, lying in Laurens district, on the waters of Raburn’s Creek, bounded by lands of .James Dunlap and John Harris, containing 142 acres, more or less, and also a tract, containing 173 acres, more or less, bounded by lands of Robert Woods and Wm. Strange and others. The purchase money being $ it appears has been paid. The bill is for a specific performance of this contract and claims a deduction or reimbursement for a deficiency of about 60 acres, which the land has been found to contain less, than the number of acres specified in the agreement. Soon after the execution of the agreement, the land was resurveyed at the instance of the parties, and by the plat of resurvey furnished me, one tract is found to contain.one hundred and forty acres, and the other one hundred and 'fifteen acres. It is with respect to the last, I suppose that the difficulty arises. I gather from the testimony, that the land of the defendant was part of a tract originally granted to John Jones, of which one *56Harris owns the other part. The tract is long in form, reduced to a narrow isthmus near the centre and expanding at either end. According to one of the witnesses, defendant claimed the larger end and pointed it out as his land. I infer from the testimony of the surveyor (Col. Arnold) who made the resurvey, that the lines as surveyed by him, corresponded with those of the plat annexed to the original grant, except in the south-eastern boundary. There, he says, the line of that plat would correspond with the dotted line of the plat of resurvey. As explained by the evidence, it appears that it would include a portion of the land which is in possession of, and claimed by, Mrs. Crombie and one Woods. It appears that Mrs. Crombie (and perhaps Woods) has had a fence on that which is represented as the actual line of the resurvey for ten or twelve years. Mrs. Crombie has been in posession of the land for twenty years; the fence has always been considered the dividing line between her and the defendant, and this was well known to the complainant, who stated that “ he knew that line better. than any other on the tract — he always regarded that — the fence of Mrs. Crombie and Woods — as the line, but thought there was land enough within the line to give the quantity.” Some time before the filing of the bill, the defendant tendered to complainant a conveyance of the land, pursuing the words of the agreement, except that the land is described as being “ bounded on the south-east side by the fence of Mrs. A. Crombie and Robert Woods.” This, complainant refused to accept, but required defendant to execute a deed in the very terms of the agreement; which he offered to him for the purpose, but defendant refused to execute. The first inquiry is, what land do the terms of the agreement include ? What did defendant agree to convey, or, what I consider as the same thing, if defendant had executed a conveyance in the very terms of the agreement as required by complainant, could the latter have maintained an action for breach of warranty?

The rule of the common law, apart from the doctrine of implied warranties, which we have borrowed from the civil law, and that of equity, which- agrees with it, is well known. If the vendee obtains the thing contracted for whatever errors there may be in *57the description of it, or whatever may be its defects as to situation, quantity or quality, there is no breach of the warranty of property. There is sometimes difficulty in applying the English law to ourselves on account of the difference of circumstances. In England every close, farm, or estate, is regarded as one thing, capable of being identified, having its limits and extent fixed by long usage and notoriety ; and very commonly distinguished by .a particular name, as Whiteacre or Blackacre. If a person conveys Whitea-cre, and the purchaser gets the whole of Whiteacre according to its notorious and well established limits, there is no breach of warranty, though the conveyance may have described it as containing two hundred acres, when in fact it contained but one, or as being bounded by Blackacre, when in fact Blackacre is separated from it, by intervening land: as in the case of personal property, if there were a bill of sale of a particular horse, described as being sixteen hands high, when in fact he was but fourteen, or as being the offspring of some particular sire, when he was not so. I do not at present consider how far these circumstances may go to make out a case of fraud, or mistake. It is always necessary to resort to extrinsic evidence, to identify the thing to which a description applies. There are various ways in which a tract of land may be identified. If it be described as beginning at a certain well known land mark, and .thence a certain distance to another, and so throughout to the beginning, ahd if these marks are found the land is identified, and the vendee gets what he contracted for, whatever errors there may be in the description as to the course or length of the lines, or the number of acres. A very common method of identifying a tract of land in this country, where we can generally trace our titles to the original grant, is by reference to that grant. If a man conveys land, as being the land granted to himself, or to A. B., this of course purports to convey all the land included within the lines of that grant, and if a better claim to a part of it should be afterwards established, here would be a breach of warranty. Or, if without being conveyed in that manner,, he did in fact claim to the whole extent of the grant, and describe it as the tract of land on which he himself lives, or his tract of land on a particular stream, this would mean the whole land embraced *58within the grant, though part of it might be covered by an older grant. But suppose him long since to have sold one-half of the tract included in the grant, and then to convey *“*the tract of land on which he lives,” — can we suppose this to include the whole grant? What shall constitute a tract of land, is often determined by usage, as in Cain v. Maples, I Hill. 304, where lands held under two distinct grants, passed under the description of “ a tract of land on which the defendant lives,” they having been used and occupied together as one. In Barksdale v. Toomer, State Rep. 290, the land was conveyed as all that plantation, or tract of land, &c., now in.the possession of the said A. Y. T., containing 986 acres. In fact, it contained 100 acres less. It was held *that*there was no breach of warranty; the purchaser obtained the whole of the tract of land in the possession of A. Y. T. Have not the limits of the tract of land in question been fixed by usage and notoriety? Here had been an adverse possession for many years, and a title matured before the agreement. Defendant appears never to have claimed beyond the fence, and this was well known to the complainant himself. It does not appear'how Mrs. Crombie’s title arose. Suppose her to have claimed under an older grant, and the *line*in question *to have been*fixed by compromise, would not this have ascertained the limits of defendant’s tract, as much as if he had sold her the residue? Will not complainant, by the conveyance, obtain the whole of defendant’s tract of land on Raburn’s creek, “adjoining Robert Woods and William Strange, and others” ? If so, it is immaterial that it has been erroneously described as containing 173 acres — leaving out of consideration the effect of the words,more or less.” And it is perfectly immaterial to the complainant, 'whether he receives the title tendered to him by complainant or that prepared by himself. But though the terms of the agreement do not include any other land, and though upon a conveyance executed in the terms of it, complainant could maintain no action on the express warranty, yet, if complainant has been induced to enter into the agreement by any material misrepresentation of the defendant, whether made mistakenly or fraudulently, this may afford a ground for relief, as in Hill v. Buckley, 17 Yes. 395, where the *particular,*(or description *59of the premises proposed for sale,) and the agreement prepared by defendant’s agent, represented a certain wood to contain 217 acres, when in fact it contained but 191, a specific performance was decreed with an abatement of price for the deficiency. This is the settled doctrine of equity; and this precisely is what our courts of common law have adopted from the civil law, under' the name of implied warranty ; as in the cases of Gray v. Ex’ors. of Handkinson, 1 Bay. 278: State v. Gaillard, 2 Bay. 11: Adams v. Wylie, 1 N. & M’Cord. 78: Tunno v. Fludd, 1 M’Cord. 122, and Brickell v. Means, 2 Hill. 657. In all these cases, there was some misrepresentation by which the purchaser was supposed to have been induced to enter into the contract. In this case, if the defendant, in order to induce complainant to enter into the contract, had positively told him that the tract contained 173 acres, (not, I think, if he had said he estimated it at so much, judging by the eye,) or if for the same purpose, he had produced the plat annexed to the original grant, and told complainant that his land extended to the whole of the larger end of the grant, this would have been misrepresentation. But what are the facts ? Defendant does not appear to have made any verbal representation with respect to the quantity of the land, nor does it appear that he knew more of it than the complainant, who expressed himself to have been well acquainted with some of the boundaries, and is stated to have lived nearer the land than defendant. Complainant’s witness, Mr. Strange, states that he “ was present when the parties contracted — no plat was exhibited — nothing was said of the number of acres — witness thought it a lumping trade.” His testimony is corroborated by that of the other witnesses: Robert Peden states, that he was present when the contract was made — the plats produced at the trial were exhibited to draw the titles by, and Richard Owens, who drew the agreement, states that defendant produced the plats to enable the witness to draw a deed — not as is plainly to be inferred, to induce complainant to enter into the bargain, but after the bargain was concluded, to enable the scrivener to give form to the contract.

It is ordered and decreed, that upon defendant’s delivering to complainant, the deed heretofore prepared and tendered by him, the bill be dismised with costs.”

*60Curia, per Harper, Ch.

I am satisfied that I was under a mistake of fact, in supposing that the defendant had tendered a title before the filing of the bill. The title which was tendered, bears date after the filing of the bill. Complainant is *therefore entitled to*a decree for a conveyance, and though I suppose that the effect will be the same, it is proper that it should be in the very terms of the agreement, and such as he demanded. The court perceives no ground for his being, allowed an abatement of the price, as having been induced to enter into the agreement by any false or mistaken representation. But he is at liberty to proceed by action at law, upon the warranty, if he shall be advised that he is likely to maintain it.

The decree of the chancellor, therefore, dismissing the bill, is reversed — and it is ordered and decreed, that the defendant execute to the complainant, a good and sufficient conveyance of the land in question, according to the terms of the agreement between them. Defendant to pay the costs.

Johnson, Dunkin and Johnston, Chancellors, concurred.