Newman v. Jackson. 12 W.

the precise limits of the several additions, the notice furnished, upon its face, not only sufficient evidence of the mistake, but a sufficient corrective of that mistake. They could not be ignorant that Fayette street and Second street were not in the addition described, but in the adjoining addition, in the name of Threlkeld. As the lot is described as fronting 60 feet on one of those streets, and 120 on the other, it must have been obvious, at once, that as these streets crossed each other at right angles, and the lots were laid off in rightangled parallelograms, the lot intended lay in the angle formed by these two streets. The streets of a town are its public highways, and must be presumed to be well known to or easily found by all those who have an interest in knowing them, or inquiring for them. They are, indeed, the most prominent and notorious landmarks and guides by which the lots are to be sought for, found, and known.

It cannot be believed that any one wishing to find or know lot No. 99, fronting 60 feet on Fayette street, and 120 feet on Second street, or to purchase, could be for one moment misguided by the inaccurate and palpably mistaken description of its being in "Peter, Beatty, Threlkeld, and Deakins's addition."

Common sense would dictate to every one who read the notice, that the less important, obscure, and indefinite part of the description which, whether true or false, did not fix and give locality to the lot intended to be described, ought to yield to that palpable and notorious description, in reference to the public streets and highways of the town, which gave it positive locality.

It has been said that the No. 99 did not appear on the recorded plat of the town, upon which the square only is laid down, without divisional lines and numbers designating the lots of each square; but it is admitted it was numbered on the plat made out by order of the corporation, and lodged with the register, but not recorded.

[* 574 ]

It is believed no purchaser would have ventured to buy without first inspecting the title deeds, and both the plats. But be this as it may, and even if any should have been so careless as not to examine the latter plat, still, it would clearly appear from the recorded plat that the lot described did not lie in the addition supposed by the notice, but in Threlkeld's addition, which was al that was necessary to correct the mistake; and it would also appear, it must necessarily lie in the angle made by Fayette street and Second street.

A purchaser or any one inclined to be a purchaser, of property upon those streets, could not have failed to have ascertained the particular lot intended by the notice.

Dunlap v. Dunlap. 12 W.

We all think the notice was, notwithstanding the mistake in part of the description, certain to a common and reasonable extent, and that is sufficient. Judgment affirmed, with costs.

DUNLAP and another, Appellants, v. DUNLAP and others, Respondents.

12 W. 574.

It being a general custom on the sale of entries in a military tract, for the vendee to take his chance of a surplus or deficiency in quantity, the vendor must show a special con tract in writing to entitle himself to such surplus.

THIS cause was argued by Scott, for the appellants, and by Doddridge, for the respondents.

MARSHALL, C. J., delivered the opinion of the court.

*This suit was brought originally by John Dunlap, the [* 575 ] appellee, in the circuit court of the United States, sitting in

the district of Ohio, to obtain a conveyance of one moiety of a tract of land in the State of Ohio, which was purchased, as is alleged in the bill, on the joint account of the plaintiff and his uncle Alexander, one of the defendants in the circuit court. Alexander, who made the contract, obtained the conveyance to himself, and afterwards conveyed the land to his son James. Both Alexander and James were made defendants.

Some time about the year 1792 or 1793, Alexander Dunlap purchased from John Fowler an entry of 1,000 acres of land on the Scioto River, in the Virginia military district, at the price of £100 Virginia currency. An agreement was entered into at the time, between the plaintiff and the defendant, Alexander, that this purchase should be made in partnership, the plaintiff says, with himself, the defendant says, with John Dunlap, senior, his father. The testimony, however, proves incontestably that, though the moiety of the purchase-money was paid by the father, it was paid for the plaintiff, whom he always considered as the rightful proprietor of the land. The purchase will, therefore, be treated, as being made on the joint account of the plaintiff and Alexander Dunlap. James Dunlap claims as a volunteer under Alexander, and his title is dependent on that of his father.

The original entry was made the 7th of August, 1787. It was withdrawn and reëntered on the 22d of April, 1796, and this entry was again withdrawn and reëntered on the 25th of July, 1796. The warrant was reëntered on nearly the same land. The changes were such as might probably be caused by a more perfect knowledge of the country; and the last entry, as surveyed on the 20th of Octo

Dunlap v. Dunlap. 12 W.

ber, 1796, contains about 300 acres of surplus land. The plat of the surveyor, however, on which the patent issued, specifies only 1,000 acres. The right to this surplus constitutes the chief subject of controversy between the parties. The plaintiffs contend that the whole entry was purchased, and that in such contracts the whole

entry passes to the purchaser. The defendants insist that [* *576] the original contract was for only 1,000 acres, and that the surplus land belonged to Fowler. That he afterwards purchased this surplus, not on joint account, but for himself. In 1802 he obtained a grant for the whole tract, in his own name, and now claims the whole surplus as his separate property.

The entry is for 1,000 acres of land. The survey made on the entry purports to be for 1,000 acres of land. The plat and certificate of survey were transferred by John Fowler to Alexander Dunlap, by an indorsement in the following words: "I do hereby assign all my right, title, and interest to the within land to Alexander Dunlap, and request a grant may issue accordingly."

This is the only written evidence of the contract, and purports to be a transfer of the whole entry and survey.

The defendant, Alexander, alleges in his answer, that the original contract was "only for 1,000 acres of land," that after the survey he discovered the surplus and mentioned it to Fowler, who said that he had contracted to sell but 1,000 acres, and should require additional compensation for the excess. The respondent agreed to give him $300 for the surplus, and Fowler's receipt for that sum, dated the 17th of October, 1800, is annexed to the answer. Though the defendant introduces into his answer the allegation that he purchased only 1,000 acres of land, yet it is remarkable, that in the first part of the same answer he states himself to have purchased the entry, and also says that the surplus was not discovered until many years afterwards, when the survey was made. The reservation of a surplus, when no surplus existed, in a contract which purported to be made for the entire tract, at a time when the purchase of entries was a common transaction, and the probability that an entry might be so surveyed as to comprehend more land than it called for, or so as to interfere with other entries and lose a part of the land it covered, was a matter of general notoriety, is so extraordinary a circumstance as to justify a critical examination of the testimony by which it is supported.

Alexander Dunlap, in the first instance, states the contract to have been, in fact, what it purports to be, a purchase of the entry, 577] that is, of the entire entry. To reconcile this with the subsequent declaration, that "the purchase was only of

Dunlap v. Dunlap. 12 W.

1,000 acres of land," we must suppose that, as the entry called for that quantity, and he purchased the entry, he might allow himself to say that he purchased only 1,000 acres. He drew an inference, however, which the law does not draw, and on which he ought not to have acted until he consulted his partner.

The defendants also sustain their pretensions by the testimony of John Fowler, whose deposition was first taken on the 24th of October, 1817. He identifies the receipt, and swears that it was a fair transaction.

His deposition is taken a second time, on the 3d of August, 1819 He swears "that he sold to Alexander Dunlap 1,000 acres of land, within the bounds of a military survey made in his name, as assignce of Arthur Lind, on the Scioto River, and, afterwards, about the 7th day of October, 1800, he sold to said Alexander Dunlap, for the consideration of $300, all the surplus contained within the bounds of the said military survey."

This deposition states the original contract as if a survey, not an entry, had been the subject of it; and as if the transfer had been of a specified portion of that survey, not of the whole.

On the 18th of November, 1820, a copy of the plat and certificate of survey was obtained from the general land-office, by which it appeared that the survey was made on the 20th of October, 1796, three or four years after the entry had been sold.

The deposition of John Fowler was again taken on the 28th of November, 1822. He swears that in 1792, or 1793, he sold to Alexander Dunlap 1,000 acres, part of a military survey made in the deponent's name, as assignee of Arthur Lind, on the Scioto River, at the rate of ten pounds Virginia currency per 100 acres, reserving the surplus should the said survey contain any within the bounds." Some years afterwards, he was informed by the late General Nathaniel Massie that "the survey contained about 300 acres of surplus." Sometime after which he proposed to sell the said surplus to Alexander Dunlap, who agreed to give him therefor $300.

In this deposition, the witness states a sale by the acre, [578] although, in his preceding depositions, he had spoken of a sale in gross. In his second deposition, he had mentioned the sale of 1,000 acres of land, "within the bounds of a military survey made in his name on the Scioto;" plainly alluding to a survey already made. In his third deposition, he still speaks of a military survey, but plainly speaks of it as of one to be made in future. He reserved the surplus, he said, "should the said survey contain any within the bounds." It is also observable that he says he received the information from Massie; whereas, Alexander Dunlap says, in his answer,

Dunlap v. Dunlap. 12 W.

that he himself gave the information to Fowler. This, however, taken in itself, would not be a very material contradiction. It might be accounted for. But the various shapes in which Fowler places the contract certainly show that his recollection of it was very imperfect, and is not entitled to much credit.

The assignment which he made to Alexander Dunlap is of the entire survey. It must be considered as an execution of the contract he had previously made; and is written evidence of the extent of that contract. If, instead of selling the whole survey, as the assignment imports, he had sold only a part of it, his natural course would have been, either to take out the patent in his own name and give his obligation to convey a part when the patent should issue, or to take it out in their joint names, entering into an agreement specifying their respective interests, or to take some obligation from Alexander Dunlap, binding him to reconvey the surplus. A written contract cannot be varied by such suspicious testimony as that of Fowler; especially in a case which contains within itself the strongest circumstances of probability against the attempt.

This probability is supported by other testimony than is furnished by the contract itself. James Dunlap, the brother of John, deposes, that Alexander Dunlap told him he and the plaintiff had purchased the tract of land in partnership; language which certainly alludes to the whole tract. The partition, too, which was afterwards made, after an actual survey for the purpose, if it divided the tract

[ * 579 ] into *moieties, is almost conclusive evidence that the idea of Fowler's title to the surplus had not then occurred to the

appellant.

is

The counsel for the appellant endeavors to support Fowler's title to the surplus independent of the special contract, and cites some cases to show that where land has been sold for a certain quantity, and has, in fact, amounted to much less than the quantity mentioned, a court of equity has interposed and given relief. But the difference very material between contracts made for land in a settled country where the titles are complete, the boundaries ascertained, and the real quantity either known or within the reach of the vendor, and those made for land situated as was the whole military district at the date of this contract. It was notoriously the general practice to sell an entry or a survey taking the chance of surplus and the hazard of losing a part of the land by other entries. A special contract, departing from this general custom, ought to be in writing, or to be very clearly proved, especially when the written evidence of the contract conforms to this general custom.

It is also worthy of remark that the entry, as it stood when sold,