pressed in the deed, but it must exist. The mention of the consideration in a deed was to prevent a resulting trust, but it is only prima facie evidence of the amount, and may be varied by parol proof. It is not evidence against existing creditors that a consideration has been paid. No use will be raised in a covenant to stand seised, or by bargain and sale upon a general consideration, as by the words "for divers good considerations," but in such cases a sufficient consideration may be averred. It is sufficient if the deed purports to be for money received or value received, without mentioning the certainty of the sum; and if any sum is mentioned, the smallest in amount or value will be sufficient to raise the use. The consideration has become a matter of form, in respect to the validity of the deed in the first instance, in a court of law; and if the deed be brought in question, the consideration may be averred in pleading, and supported by proof. If a consideration be expressed in the deed, the grantor is estopped, and cannot be permitted to aver against it, unless there be fraud or illegality in it; and then he may show it. The receipt of the consideration money is usually mentioned in the

deed; and Mr. Preston says, that if the receipt #466 of it be not endorsed upon the deed, it will, in transactions of a modern date, be presumptive evidence that the purchase money has not been paid,

a Meeker v. Meeker, 16 Conn. Rep. 383.

Kimball v. Fenner, 62 N. H. Rep. 248.

Mildmay's case, 1 Co. 175, a. Stevens v. Griffith, 3 Vermont Rep. 448 d Fisher v. Smith, Moor's Rep. 569. Jackson v. Schoonmaker, 2 Johns. Rep. 230. Jackson v. Alexander, 3 ibid. 491. Cheney v. Watkins, 1 Harr. & Johns. 527. Okinson v. Patterson, 1 Watts & Serg. Rep. 395. Goodell v. Pierce, 2 Hill's Rep. 659.

• Collins v. Blantern, 2 Wils. 347. Paxton v. Popham, 9 East, 408. But the grantor is not estopped to prove that there were other considerations than the one expressed. Emmons v. Littlefield, 3 Maine Rep. 238. Parol evidence may be given to vary the consideration. 14 Johnson, 210. 20 Id. 338. 16 Wend. 460. 17 Mass. 249. 257. 8 Conn. 314.

f Abstracts, vol. i. 72. 299. Ibid. vol. iii. 15.

and impose upon a future purchaser the necessity of proving payment, in order to rebut the presumption of an equitable lien in favour of the seller for his purchase money. I have no idea that the courts of justice in this country would tolerate any such presumption in the first instance, from the mere circumstance of the omission to endorse on the deed the receipt of payment, for that ceremony is not now the American practice.

(4.) The description of the estate.

In the description of the land conveyed, the rule is that known and fixed monuments control courses and distances. So, the certainty of metes and bounds will include, and pass all the lands within them, though they vary from the given quantity expressed in the deed. The least certain and material parts of the description must yield to those which are the most certain and material, if they cannot be reconciled; though, in construing deeds, the courts will give effect to every part of the description, if practicable. Where natural and ascertained objects are wanting, and the course and distance cannot be reconciled, the one or the other may be preferred, according to circumstances. If there be nothing to control the course and distance, the line is run by the needle. The mention of quantity of acres, after a cer

⚫ Landmarks or fixed monuments to designate boundaries, are so important in distinguishing landed property, that to remove or destroy them was deemed a high offence by the ancient Jewish laws; and in New-York to remove, deface, or alter them maliciously is an indictable offence. New-York Revised Statutes, vol. ii. 695, sec. 32.

b Jackson v. Staats, 2 Johns. Cas. 350. Trammell v. Nelson, 2 Harr. & M'Henry, 4. Pernam v. Weed, 6 Mass. Rep. 131. Howe v. Bass, 2 Mass. Rep. 380. Higley v. Bidwell, 9 Conn. Rep. 447. Benedict v. Gaylord, 11 ibid. 335. Doe v. Porter, 3 Arkansas Rep. 18. 57. White v. Gay, 9 N. H. Rep. 126. M'Iver v. Walker, 9 Cranch's Rep. 173. Preston v. Bawmar, 6 Wheat. Rep. 580. Colclough v. Richardson, 1 M'Cord's Rep. 167. Welch v. Philips, ibid. 215. Brooks v. Tyler, 2 Vermont Rep. 348. Clark v. Wethey, 19 Wendell, 320. Lessee of Wyckoff v. Stephenson, 14 Ohio Rep. 13. 15.

tain description of the subject by metes and bounds, or by other known specification, is but matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants,

though the quantity of acres should fall short of the #467 given amount. Whenever it appears by definite boundaries, or by words of qualification, as "more or less," or as "containing by estimation," or the like, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case. So, according to the maxim of Lord Bacon, falsa demonstratio

17. The rules of law as to the location of lands by description in deeds, and as to the resort of the secondary evidence of the declarations and acts of the parties, when the primary evidence fails, are clearly stated in this last case. A grant from one terminus to another means a direct line; but if the line is to run along a river or creek from one terminus to another, it must follow the river or creek, however sinuous, or indirect it may be, and if that description will not reach the terminus, it must be pursued so far as it conducts towards the terminus and then relinquished for a direct line to the terminus. Shultz v. Young, 3 Iredell N. C. Rep. 385.

Smith v. Evans, 6 Binney's Rep.

And see 1 Aiken's Rep. 325, to

• Mann v. Pearson, 2 Johns. Rep. 27. 102. Powell v. Clark, 5 Mass. Rep. 355. the same point. Jackson v. Moore, 6 Cowen's Rep. 706. Allison v. Allison, 1 Yerger's Tenn. Rep. 16.

Stebbins v. Eddy, 4 Mason's Rep. 414. If land be sold by certain bounds, or for so much for the entire parcel or by the lump, which is per aversionem, in the language of the civiliaus, as for a field enclosed, or an island in a river, which is a distinct and entire object, any surplus of land over the quantity given belongs to the vendee, and the price cannot be increased or diminished on account of disagreement in measure or quantity. Innis . M'Crummin, 12 Martin's Louis. Rep. 425. Lesassier v. Dashiell, 13 Louis. Rep. 151. Phelps v. Wilson, 16 ibid. 185. Louis. Code, art. 2471. The Morris Canal Company v. Emmett, 9 Paige's Rep. 168. Pothier, Traité du Cont. de Vente, No. 255. A very great difference (as thirty-three per cent. for instauce) between the actual and the estimated quantity of acres of land sold in the gross, would entitle a party to relief in chancery, on the ground of gross mistake. Quesnel v. Woodlief, 2 Hen. & Munf. 173, note. Nelson v. Matthews, 2 ibid. 164. Harrison v. Talbott, 2 Dana's Ken. Rep. 258. In the last case, the series of Kentucky decisions on the subject are ably reviewed.

non nocet, when the thing itself is certainly described; as in the instance of the farm called A., now in the occupation of B.; here the farm is designated correctly as farm A.; but the demonstration would be false if C., and not B., was the occupier, and yet it would not vitiate the grant. Some things will pass by the conveyance of land as incidents appendant or appurtenant thereto.b This is the case with a right of way or other easement appurtenant to land. So, also, if the owner of a mill and dam, and certain lands overflowed by the dam, sells the mill with all its privileges and appurtenances, the purchaser may continue the dam with the same head of water. And if a house or store be conveyed, every thing passes which belongs to, and is in use for it as an incident or appurtenance. A conduit, conveying water to the lands sold from another part of the lands of the grantor, will pass as being necessary or quasi appendant thereto. So, a race-way, conducting water from a mill on to another part of the grantor's land, has been held

a

Jackson v. Clark, 7 Johns. Rep. 271.
Com. Dig. Fait, E. 4.

Comyn's Dig. Grant, E. 11. Incor

Blague v. Gould, Cro. C. 447. 473. Howell v. Saule, 5 Mason's Rep. 410. b Co. Litt. 56. 121, b. 152. 307, a. poreal hereditaments appendant or appurtenant to land, as common of Piscary and of Pasture and right of way, pass by a conveyance of the land to which they are annexed, without even mention of the appurtenances. Co. Litt. 121, b.

Kent v. Waite, 10 Pick. 138. Story v. Odin, 12 Mass. Rep. 157. See, also, Bayley, J., in Canham v. Fisk, 2 Tyrwhit's Rep. 153. 157, and supra, vol. iii. 420.

d Blaine's Lessee v. Chambers, 1 Serg. & Rawle, 169. Pickering v. Staples, 5 ibid. 107. Tilghman, Ch. J., Strickler v. Todd, 10 ihid. 63. Oakley v. Stauley, 5 Wendell, 523. Hathorn v. Stinson, 1 Fairfield, 224.

• United States v. Appleton, 1 Sumner's Rep. 492. When the use of a thing is granted, every thing is granted by which the grantee may have and enjoy the use. Twisden, J., in Pomfret v. Ricroft, 1 Saund. 321. 323; and this is according to the sound maxim of the common law, that aliquis quod concedit, concedere videtur et id, sine quo res ipsa esse non potuit.

Nicholas v. Chamberlain, Cro. J., 121.

b

to pass by a conveyance of land with the mill thereon. Upon a conveyance of land and delivery of possession, it has been adjudged that the growing grain does not pass to the vendee, for it is deemed to be personal *468 estate. A contrary rule was, however, previously declared in Foote v. Colvin ; and was likewise admitted in Kittredge v. Woods. If the land be sold without any reservation of the crops in the ground, the law is strict as between vendor and vendee; and I apprehend the weight of authority to be in favour of the existence of the rule that the conveyance of the fee carries with it whatever is attached to the soil, be it grain growing, or any thing else; and that it leaves exceptions to the rule to rest upon reservations to be made by the vendor. The rule was so understood and declared in Crews v. Pendleton. A reservation is a clause in a deed, whereby the grantor reserves some new thing to himself issuing out of the thing granted, and not in esse before ; but an exception is always of a part of the thing granted, or out of the general words and description in the grant. It is repugnant to the deed, and void, if the reservation be as large as the grant itself. So, it is

a N. Ips. Factory v. Batchelder, 3 N. H. Rep. 190. The term appurtenances signifies something appertaining to another thing as principal, and which passes as incident to the principal thing, and which is of a different but congruous nature. Land cannot be appurtenant to land. Harris v. Elliott, 10 Peters' U. S. Rep. 25. United States v. Harris, 1 Sumner, 37.

Mistakes of facts in recitals of deeds, given by official men who sell under judicial authority, may be explained. Glover v. Ruffin, 6 Ohio Rep. 255. b Smith v. Johnson, 1 Penn. Rep. 471.

• 3 Johns. Rep. 216.

3 N. H. Rep. 503.

• 1 Leigh's Virg. Rep. 297. Bank of Pennsylvania v. Wise, 3 Watts, 394. Wilkins v. Vashbinder, 7 ibid. 378. S. P., and the case of Smith . Johnston, alluded to in the text is overruled.

f An incident to a grant may be the subject of a reservation as the reservation of a rent, or of a mill site, and the right to erect mill-dams, and the use of streams of water; but the reservation is inoperative, until the grantor exercises his right. Thompson v. Gregory, 4 Johns. Rep. 81. Provost r Calder, 2 Wendell, 51. Dygest v. Matthews, 11 ibid. 35.