Here are mutual promises ; one is made the consideration of the other, and we are of opinion that the Plaintiff’s promise to refund in the event of a deficiency in the number of acres, is a good consideration to support the Defendant’s promise to pay, should there be more acres than called for by his deed. Judgment for the Plaintiff.
Howe v. O'Mally, 5 N.C. 287, 1 Mur. 287 (1809)
July 1809
·
Supreme Court of North Carolina
5 N.C. 287, 1 Mur. 287
Howe v. O‘Mally.
1 {-From Chowan, J
A. conveyed to B. a tract of land, containing 221 acres, more or less.Some years afterwards it was mutually agreed to have the land surveyed, and if it were found to Contain more than 221 acres, the defendant should pay the Plaintiff ten dollars per acre for the excess if it fell short, Plaintiff to refund to Defendant at the same rate. Here are mutual promises, and one is a good consideration, to support the other.
The Plaintiff, by a deed of bargain and sale, conveyed to the Defendant, in the year 1790, one hundred and forty-five acres of land, part of a tract of three hundred and sixty-six acres, purchased from Clement Hall. In the year 1792, the Plaintiff, by another deed, conveyed to the Defendant a part of the same tract of land, purporting to contain two hundred and twenty-one acres/ *288 “ be the same more or less.” Each tract ivas described by particular metes and' bounds, and both together made up the whole tract purchased from Clement Hajl, by the Plaintiff, for which the Defendant fully paid and satisfied the Plaintiff.
Some time afterwards, to wit, in the year 1806, in a conversation between the parties, it was mutually agreed to h|ive the tract of two hundred and twenty-one acres last sold, surveyed, and if it were found to contain more than two hundred and twenty-one acres, (the number of acres called for by the deed,) the Defendant should pay to the Plaintiff ten dollars per acre for the excess; and if, on the other hand, it should fall short of that number of acres, the Plaintiff should refund to the Defendant at the same rate per acre. In the month of October, 1806, a survey was accordingly made, and the tract was found to contain three hundred and eight acres, including swamp on two of the lines, eighty-seven acres more than the deed called for. This action was brought to recover the sum of eight hundred and seventy dollars with interest, &c.
For the Defendant, it was contended first, that unless from the presumption that the agreement proved, subsisted between the parties, at the time of the execution of the conveyance in 1802, there was no consideration to support it: and that such presumption would be not only violent., but against the solemn deed of the parties. That the evidence was improper and ought not to have been received, in as much as it goes to establish a parol agreement in express contradiction of the solemn deed of the parties ,* for if any meaning is to be given to the words, “ be tiie same more or less,” in the deed of 1802, the Plaintiff had at that time sold and absolutely conveyed ah the lands which he held under his conveyance from Hall, and that therefore there was nothing for the agreement to operate upon.
*289Por tlie Plaintiff, it was urged that there was no necessity for resorting to the presumption, that the agreement proved, subsisted between the parties at the time of the execution of the conveyance in 1802, or go m search of a consideration to support it, in as much as the promises were mutual and each a consideration for the other. That the number of acres in the tract was quite uncertain, and for aught that the Plaintiff knew, might have been less than the number expressed in the deed : his promise therefore to pay the Defendant in that event ten dollars for every acre so falling short, was a good consideration to support the promise of the Defendant, to enforce which the action was brought. This agreement is not in contradiction of the deed, but perfectly consistent with it; it was quite a distinct transaction and not intended to control, explain or vary the deed in any respect, but stood entirely on its own bottom.