Huntly v. Waddell, 34 N.C. 32, 12 Ired. 32 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 32, 12 Ired. 32

ROBERT S. HUNTLY vs. JAMES M. WADDELL.

A., by deed, conveyed a tract of land by metes and bounds, specifying the . number of acres, and covenanted as follows: “ To have and to hold to him the said R. S., his heirs and assigns, the right and .title of the same, I warrant and will ever defend Held, that this was only a covenant for quiet enjoyment and not a warranty as to the number of acres mentioned in the deed.

In the sale of land by deed, there are no Implied warranties.

The case of Ricketts v Dickiñs, 1 Murphy 343, Lyles v Powell, I Mur. 348, and Williams v Lowe, 2 Car. L. Repos. 267, cited and approved.

Appeal from the Superior Court of Law of Anson County, at the Fall Term, 1S50, his Honor Judge Battle presiding.

This was an acliou of covenant for the breach of a warranty, alleged to be contained in a deed for land, in which the defendant, after conveying by metes and bounds, cov-. enanted as follows : “ To have and to hold to him the said Robert Huntley, his heirs and assigns, the right and title of the same, I warrant and will ever defend the,same.” Upon a survey of the land contained in the metes and bounds, set forth- in the deed, it appeared that there were only one hundred and ninety-seven acres, instead of two hundred and twelve and a Half, as mentioned in the deed. The plaintiff contended that the warranty in the deed embraced the quantity of land mentioned-therein as well as the title, but this was denied by the defendant1. A verdict was taken for the plaintiff, subject to the opinion of the Conit upon the question stated above, upon which the Court being of opinion that the action could not be sustained, the verdict was set aside, and a judgment of non suit given, from which the plaintiff appealed to the Supreme Court.

G. C. Mendenhall, for the plaintiff.

TV. Winslow and R* Strange, for the defendant.

Nash, J.

As early as 1810, the Supreme Court decided that in a deed of bargain and sale, the words “ containing so many acres,” do not import a covenant of quantity. In the case of Ricketts v Dickins, 1 Mur. 243, this principle was affirmed, and reiterated in the subsequent one of Lyles v Powell, anci recognized as sound law, in that of Williams v Lowe, 2 Car. L. Repos. 267. In the first, the words of the deed are, “ containing two hundred'and fifty acres, &c., to have and to hold the said land and premises, and every part thereof, &c.” The operative words in the case of Powell are the same. Yet in such, it was decided there was no covenant of quantity, though upon surveys the number of acres fell short of that specified in the deed. In this case, the same description is contained. After describing the metes and bounds of the land, it continues, “ containing two hundred and twelve acres and a half.” The only difference between this case and the two first referred to, is, that in the latter there was no express covenant, whereas in this case there is. It is as follows: “ To have and to hold to him, the said Robert Huntly, his heirs and assigns, the right and title of the same, I warrant and will evei defend.” Does this covenant extend to, and cover the quantity of, land conveyed? His Honor, who tried the case, ruled that it did not; and we agree with him. The covenant is one for quiet enjoyment of all the land conveyed by the deed. No land was conveyed by the deed, but that which was contained within the specified metes and boundaries. It can be made to apply to the quantity mentioned, only by implication ; but there are in the sale of real estate, by deed, no implied warranties. If there had been more land within the lines than the quantity specified, they would certainly have passed. Would the bargainor, in such case, have been entitled to remuneration from the purchaser for the surplus ? Surely not, because he had sold all the land with* in the boundaries. If, in such a case as this, the purchaser wished to be protected in the number of acres mentioned, he ought to have taken a covenant to that effect, or he might, if he had chosen, have had the land surveyed before the contract was executed. He has done neither and must abide the consequence.

Per Curiam. ' Judgment affirmed.