Opinion
July Term, 1810.
1. In a deed of bargain and sale the words "give, grant, bargain and sell" do not imply a warranty.
2. The clause of a deed describing the length of lines and the boundaries of a tract of land, and concluding with the words, "containing so many acres," does not amount to a covenant of quantity; and no action lies if the quantity be less than that mentioned, as the word "containing" does not import or constitute a covenant.
THIS was an action of covenant brought on the following deed, to wit:
From Wake.
This indenture, made this 21 January, 1807, between Samuel Lyles, of the county of Wake and State of North Carolina, of the one part, and Caswell Powell, of the county and State aforesaid, of the other part, witnesseth, that the said Samuel Lyles, for and in consideration of the sum of £ 500, lawful money, to him in hand paid by the said Caswell Powell, the receipt whereof he, the said Samuel Lyles, doth hereby acknowledge, and himself fully paid, hath given, granted, bargained, sold and conveyed unto the said Caswell Powell, his heirs and assigns (349) forever, a certain tract or parcel of land lying and being in the county and State aforesaid, on the south side of Neuse River, containing 340 acres, beginning at a hickory, Abbot's corner, thence south 300 poles to a hickory in Bohannoh's line; thence west 129 poles with the said line to a pine, Jacob Riches' corner; thence north 300 poles to a pine in Abbot's line; thence with the said line to the first station: To have and to hold the said lands, with all the privileges and benefits thereunto belonging, to him, the said Caswell Powell, his heirs and assigns forever, against the lawful claim or claims of any person or persons whatsoever; and I, the said Samuel Lyles, for myself and my heirs, do further agree that I will make or assign any deed or writing of conveyance, when thereunto required by the said Caswell Powell, his heirs or assigns, that shall be judged necessary to authenticate the same. In witness whereof, I have hereunto set my hand and seal the year first above written.
SAMUEL LYLES. [SEAL.]
Signed, sealed and delivered in the presence of JAMES FORT, POLLY FORT, CHARLOTTE EMBRY.
Some time after the conveyance an accurate survey of the land mentioned in the said deed was made, and the boundaries were found to be correct, but the quantity of land was deficient by 17 1/4 acres. The question submitted to the Supreme Court was whether an action of covenant would lie on this deed to recover damages for such deficiency.
This case does not essentially differ from that of Rickets v. Dickens, ante, 343. In both cases the actions are brought upon deeds of bargain and sale. The one now declared on contains no covenant of warranty, and thus far corresponds with the deed set forth in the first count of the declaration in the other case; but the word "give" is contained in the deed in the present case, which, according to the principles stated in Rickets v. Dickens, ante, 343, would imply a warranty, if inserted in a deed of feoffment, etc.; but in other forms of alienation gradually introduced since the statute of quia emptores, no warranty whatsoever is implied, they bearing no sort of analogy to the original feudal donation. (350) Lord Coke, in illustrating the statute de bigamis, more particularly explains the several conveyances at common law in which that word implies a warranty. "The letter of this act," says he, in 2 Inst., 275, "extends but to the feoffor upon a feoffment made; but if `dedi' doth inure by way of release or confirmation, it importeth a warranty during the life of him who makes the deed: so it is, if a reversion expectant upon an estate for years, life, or in tail be granted by this word `dedi,' and attornment had; here `dedi' doth import a warranty, though the estate passeth not by way of feoffment." Vide, also, 2 Bl. Com., 210. The deed in this case being a bargain and sale, no implied warranty ariseth by force of any words; and though it would be difficult to assign any satisfactory reason why the distinction should be preserved at the present day, when deeds vary from each other only by a slight verbal difference, and when equal validity is conferred upon all by the ceremony of registration, yet the Court has no power to remove ancient landmarks: they must administer the law as it is written, and leave the Legislature to alter what may be deemed inconvenient. There is a covenant in this deed for further assurance, which probably was designed by the parties to compel a future execution of a conveyance containing the necessary warranty. If that be the case, the plaintiff cannot be remediless, although, in the present suit, there must be judgment against him.