Hess v. Cheney

• Court: Alabama Supreme Court
• Writing for the Court: CLOPTON, J.
• Citation: Hess v. Cheney, 83 Ala. 251, 3 So. 791 (Ala. 1888)
• Decision Date: 24 February 1888
• Parties: HESS v. CHENEY.

3 So. 791

83 Ala. 251

HESS v. CHENEY.

Supreme Court of Alabama

February 24, 1888

Appeal from circuit court, Jackson county; JOHN B. TALLY, Judge.

This was an action brought by Amanda E. Cheney against James A Hess on a promissory note given to the plaintiff by the defendant for the purchase money of certain lands sold to the defendant by the plaintiff. The defendant pleaded the general issue, the failure of consideration, want of consideration recoupment, and misrepresentation as to number of acres contained in the tract of land so purchased by the defendant. Issue was joined on all of these pleas. On the trial, as shown by the bill of exceptions, the plaintiff introduced the note sued, proved its execution, and rested her case. The defendant introduced the deed made by the plaintiff to him describing the land as set out in the opinion. The defendant testified, and sought to prove, that the plaintiff represented to him that the tract of land purchased by him from her contained 250 acres, and that such was alleged in the deed, and that he had had the lands surveyed, and they did not contain the amount so specified; and hence he contended that he should not be made to pay the whole of the purchase money. Upon hearing all of the evidence, the court gave the jury the general affirmative charge, and instructed them "that if they believed the evidence, they must find for the plaintiff." The defendant excepted to the giving of this charge, and now assigns the giving of the same as error.

Speake & Coulson, for appellant.

W. L. Martin, for appellee.

CLOPTON J.

In Minge v. Smith, 1 Ala. 415, the bond for title, after describing the lands by divisions and subdivisions according to the government surveys, contained the following clause. "The whole of the within-described lands contain, in all, twelve hundred and sixty-eight and seventy-one one-hundredths acres." It was held that this clause, being in a sentence entirely distinct from the description of the lands, was not descriptive, and, in order that it might have some office, that it was a covenant as to quantity. The general rule was recognized that, when there is a sale of lands according to the government surveys, and these are taken as the standard of quantity, neither the vendor nor vendee will be permitted to claim for loss or gain. While this case has not been in terms overruled, it has been more than once said that it carried the doctrine of warranty as to quantity to a point beyond which it is unwise to extend. Wright v. Wright, 34 Ala. 194; Rogers v. Peebles, 72 Ala. 529. In 3 Washb. Real Prop. 427, the author observes "Sometimes the quantity conveyed is mentioned in the deed; but, independently of an express averment or covenant as to quantity, this is always regarded as a part of the description merely, and will be rejected if it be inconsistent with the actual area of the premises, if the same is indicated and ascertained by known monuments and boundaries." In Rogers v. Peebles, supra, the principle is thus stated: "When the land sold is described by definite boundaries, in regard to which there can be no mistake, if it be followed by a statement, as containing _____ number of acres, or other phrase of like import, it is to be deemed a mere matter of description, and not as a covenant warranting the quantity intended to...