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confirmed, and does by these presents give, grant, bargain, sell, aliene, release, convey, and confirm, unto the said grantee, his heirs and assigns for ever, all," &c. Here you have an insight into the art of amplification. I shall first indicate the words which may be left out, and then comment upon what is essential. The expressions "for" and "in consideration of," need not both be used. The money need not be stated to be "in lawful money of the United States." The expressions "to him in hand paid. and the receipt whereof is hereby acknowledged," need not both be used. The statement of the conveyance in the past and present tenses," has given," &c., and "does give," &c., is an insult to common sense; either tense is sufficient; and the use of eight different words, "give, grant, bargain, sell, aliene, release, convey, and confirm," to express the act of conveying, is without apology. The proper words in this State are "bargain and sell." But any other words which indicate the intention, as "grant," or "convey," would do equally well. The word "sell," would alone be sufficient. The word "heirs," we have seen, is necessary; but the "assigns" is not; for the right of alienation is inseparable from a fee, without being expressed. In fact, any words inserted in restraint thereof, would be rejected as repugnant to the estate granted. The word "forever" is not necessary, for perpetuity is implied in the word "heirs." When the granting clause has been thus pruned of about three-fourths of its verbiage, it will contain simply a statement of the receipt (a) of the consideration, and the conveyance of the estate. The nature of the consideration has been already described. As to the receipt expressed in the deed, it is not conclusive, and parol evidence will be admitted to show that the money was not in fact paid. But it is prima facie evidence of payment, and throws the burden of proving a non-payment on the grantor. In a lease, the granting clause varies considerably from the above. The consideration usually stated is, "the rents and covenants hereinafter mentioned." The operative words are "lease," or "demise." The word "heirs," is not used; and the word "assigns," is not necessary, because the power of assigning or underletting is implied, where the contrary is not stated. It has been decided (b) that where a wife signs and acknowledges the deed, but is not named in the granting clause nor elsewhere, as conveying any interest, her dower is not barred. Also, that if she only be named in the conclusion as relinquishing dower, the deed will not convey a fee held in her own right. If there be any recitals (c) in a deed, their proper place is between their introduction and the

(a) See Shepard v. Little, 14 Johns. 210.

(b) M'Farland v. Febiger, 7 Ohio, 194; Foster v. Dennison, 9 id. 121; Purcell v. Goshorn, 17 id. 105; Cincinnati v. Newell, 7 Ohio State, 37 ante, p. 369, note.

(c) Douglas v. Scott, 5 Ohio, 194; Wallace v. Miner, 6 Ohio, 366; Reeder v. Barr, 4 Ohio, 446; Matoon v. Clapp, 8 Ohio, 248; M'Chesney v. Wainwright, 5 Ohio, 452; Scott v. Douglas, 7 Ohio, 227; Glover v. Ruffin, 6 Ohio, 255; Ludlow v. Park, 4 Ohio, 5.

granting clause, but they may occur elsewhere. Their effect is to preclude those who trace title through deeds containing them, from denying their truth or notice of what they contain. But if such recitals contain errors in fact, they may be corrected by parol, when they are not the essential part of the conveyance.

Description and Boundary. (a) The description of the premises is an essential part of the deed; and the general principle is, that it should contain particulars enough to enable a man to ascertain with certainty the land conveyed from the deed itself. This results from a rule of evidence, that parol testimony cannot be introduced to modify a written contract. In regard to deeds, the rule is thus stated: Parol evidence is not admissible to contradict, vary, or add to, the terms of a deed. Of the various exceptions and modifications of this rule, I cannot here speak. As applied to the description of the premises in a deed, the result is this: If there be a patent ambiguity, that is, an ambiguity apparent on the face of the deed, such that the mere reading of the description will show that it does not identify the land, the deed is void for uncertainty. But if the ambiguity be latent, that is, discoverable, not from the words employed, but only from a reference to extrinsic facts and circumstances, then the description may be aided by parol evidence. (b) But what is necessary to make a good description, will be best understood from a statement of particulars. The means made use of to describe land are chiefly three: first, specific boundaries, commonly called fixed monuments, or metes and bounds; secondly, courses and distances, as determined by the compass and chain; and thirdly, quantity, as determined by computation of the number of acres. With regard to these, the established principle is this: specific boundaries control courses, distances, and quantity; that is, if a description contain

(a) See 4 Kent, Com. 455; 1 Phillips on Evidence, 473-480; 4 Comyn's Dig. 287; Worthington v. Hylyer, 4 Mass. 196; Blake v. Doherty, 5 Wheaton, 359; Reisch v. Dickson, 1 Mason, 10; Jackson v. Clark, 7 Johns. 217; Revere v. Leonard, 1 Mass. 91; Powell v. Clark, 5 id. 355. Howes v. Barker, 3 Johns. 506; Stebbins v. Eddy, 4 Mason, 414; M'Chesney v. Wainwright, 5 Ohio, 452; McCullough v. Aten, 2 Ohio, 307; Douglas v. M'Coy, 5 Ohio, 524; Walsh v. Ringer, 2 Ohio, 327; Alshire v. Hulse, 5 Ohio, 534; M'Coy v. Galloway, 3 Ohio, 282; Benner v. Platter, 6 Ohio, 504; Garit v. Chambers, 3 Ohio, 495; Hopkins v. Kent, 9 Ohio, 13; Throckmorton v. Moore, 10 Ohio, 42; Hollister v. Hunt, 9 Ohio, 8; Galloway v. Brown, 16 Ohio, 428; Reed v. Marsh, 8 Ohio, 147; Marsh v. Stephenson, 7 Ohio State, 264. Richardson v. Chickering, 41 N. H. 380; Opdyke v. Stephens, 4 Dutcher, 83; Robinson v. White, 42 Maine, 209. In M'Coy v. Galloway, 3 Ohio, 282, the court say, "It is admitted that course and distance must give way to natural objects; but this rule has its limits, and must be used with sound discretion. Where a natural object is distinctly called for and satisfactorily proved, it becomes a landmark, not to be rejected, because the certainty which it affords excludes the probability of mistake; while course and distance, depending for their correctness on a great variety of circumstances, are liable to be incorrect. Difference in the instruments used, and in the case of surveyors and their assistants, must lead to different results. Hence it is that this rule has been established." And see Harris v. Harris, 14 Ohio, 529. But parol evidence may show that a reference to a monument, in a sheriff's deed, which would greatly enlarge the quantity, was a mere mistake. Spiller v. Nye, 16 Ohio, 16. Where the monument referred to is notorious, a mistake in stating its distance is not material. Buckley v. Gilmore, 12 Ohio, 63.

(b) Dougherty v. Purdy, 18 Ill. 206; McAfferty v. Conover, 7 Ohio State, 99.

specific boundaries alone, without course and distance or quantity, it will be sufficient; if it contain all three, and the course and distance or quantity be incompatible with the specific boundaries, the latter prevail; if it contain only course and distance and quantity, and the quantity disagree with the course and distance, the latter prevail; and if it contain course and distance only, it will be sufficient; but quantity only is never sufficient. When all the particulars mentioned are necessary to ascertain the property conveyed, they must all agree; but when there are particulars sufficiently certain to designate the property, the addition of circumstances, false or mistaken, will not frustrate the conveyance. Where land is described as "between" certain limits, the limits themselves are excluded. If the description name a monument not existing at the execution of the deed, and the parties afterwards agree to fix one, such agreed monument prevails, though not exactly coincident with the line described in the deed. The mention of the quantity of acres, after a specific description, does not amount to a covenant as to that of quantity; but if the land has been paid for according to the quantity stated, and the quantity turns out to be less, the grantee may resort to chancery. When the quantity is qualified by the words "more or less, or similar words, the buyer takes the risk, and cannot be relieved even in equity, unless there be actual fraud. (a) When land is sold at so much for the entire parcel, as for a field enclosed, or an island in a river, any surplus over the stated quantity belongs to the grantee. Where the description is "part of a lot,' or "one acre of a lot," it is too vague to sustain a sale. Where a deed refers to another deed for the description, and the land can be ascertained by such reference, the description is good. Neither the town nor county need be stated in the description, if the land can be otherwise identified. Where the description is "so many acres in the south-west corner of a given section," it is good, and the land must be laid out in a square. (b) But if it be "so many acres on the south side," the whole south line must be the base of a rectangle. Where the description specifies "a tree on the bank of a creek, thence down the creek with the meanders thereof," low-water mark is the boundary, even though the tree be at some distance from the bank; for neither corner trees nor line trees are required to be in the actual line; the nearest and most permanent objects may be selected. We have seen that where land is advertised to be sold for taxes, the description must be as certain as in a deed; but our court has decided that

(a) Ketchum v. Stout, 20 Ohio, 453. Words expressing quantity yield to monuments, courses, and distances; and where these are sufficient to determine the boundaries of the land conveyed, there is no covenant that the land described contains that quantity. Mann v. Pearson, 2 Johns. 37; Perkins v. Webster, 2 N. H. 287; Powell v. Clark, 5 Mass. 355; Davis v. Rainsford, 17 id. 207; Flagg v. Thurston, 13 Pick. 145; Newhall v. Ireson, 8 Cush. 595; Pierce v. Faunce, 37 Maine, 63; Emery v. Fowler, 38 id. 99; Chandler v. McCard, 38 id. 564.

(b) See Stewart v. Aten, 5 Ohio State, 257; Winkler v. Higgins, 9 id. 599.

a defective description in a levy upon land, may be supplied by parol. When the description has been given according to the foregoing principles, it is usual to find the following addition: "and all the estate, right, title, interest, claim, and demand of the said grantor, of, in, and to the said premises and every part thereof; together with all and singular the privileges and appurtenances to the same belonging; and the rents, issues, and profits thereof." But this can have no other effect than to lengthen the deed; for it is a general principle, that when land passes, all that is appurtenant thereto passes with it, whether mentioned or not. We have seen that when a man grants "all his estate" in a certain piece of land, all his interest thereby passes; and even if it were not so, the brief expression, "with the appurtenances," would express as much as all the above verbiage.

Habendum Clause. (a) Immediately after the description, it is usual to insert the following words: "To have and to hold the premises hereby bargained and sold, or meant, or intended so to be, with the appurtenances, to the only proper use and behoof of the said grantee, his heirs and assigns for ever." The original purpose of this clause, which is a literal translation from the Latin form, was, to explain the nature of the grant, and specify the tenure by which the land was to be held; but as we have no peculiarity of tenure, and as the nature of the estate conveyed has been already specified in the granting clause, this clause is utterly useless in common deeds. In deeds of trust, however, it is convenient to insert the habendum clause, for the purpose of specifying therein the trust created; though it is not necessary even there. In leases, also, it is usual to state the duration of the lease and the terms of rent in this clause, in the following language: "To have and to hold the said demised premises with the appurtenances to the said lessee and his assigns, from the said day of for and during, and to the full end years from thence next ensuing, and fully to be complete and ended: " but of this it is sufficient to say, that the whole might be expressed with equal force, by inserting immediately after the description the following words: "for the term of years from the said and in common deeds, where there is no trust to be expressed, the clause had better be omitted altogether. I will only add, that where it is inserted, it becomes void, if it be repugnant to the estate created by the granting clause.

and term of

day of

Covenants. (b) We have before observed that, by our criminal

(a) 4 Kent, Com. 468.

(b) 4 Kent, Com. 457; Patterson's Lessee v. Pease, 5 Ohio, 190; Kingdom v. Nottle, 1 Maule & Selwyn, 355, and 2 id. 53; Greenby v. Wilcox, 2 Johns. 1; Hamilton v. Wilson, 4 id. 72; Bickford v. Page, 2 Mass. 455; Wyman v. Ballad, 12 id. 304; Backus v. McCoy, 3 Ohio, 211; Sprague v. Baker, 17 Mass. 586; King v. Kerr, 5 Ohio, 154; Foote v. Burnet, 10 id. 317, where the whole law of covenants real is fully detailed in the note. This subject is well treated in Rawle on Covenants for Title. See also 2 Parsons on Contracts, 494-508; Sedgwick on Damages, ch. vi.

The Covenant of Warranty. The rule of damages is the purchase-money and inter

law, if a man conveys land to which he knows he has no title, with intent to defraud, it is a penitentiary offence; but where there is no intention to defraud, the mere fact of conveying does not amount to a warranty of title. The liability of the grantor

est. Clark v. Parr, 14 Ohio, 118; King v. Kerr, 5 id. 154; Lloyd v. Quimby, 5 Ohio State, 262. In the case of King v. Kerr it is also held, that notice to the warrantor of being sued in ejectment is not required to hold him; and where there are several successive warrantors, though each may be sued separately, there can be but one satisfaction. Also that where the benefit of the occupying claimant law is demanded, and results in the defendant's retaining the land by paying its value, this is an eviction. Wilson v. Taylor, 9 Ohio State, 595. In the New England States generally, the measure of damages for the breach of this covenant is the value of the land at the time of eviction. 2 Parsons on Contracts, 500. A mortgagee, even after a decree of foreclosure, may maintain an action against the mortgagor for breach of the covenant of warranty in the mortgage; and the measure of damages is the debt due to him, with interest, notwithstanding the incumbrance which constitutes the breach is a less amount. Lloyd v. Quimby, 5 Ohio State, 262; Elder v. True, 32 Maine, 104. A widow evicted from her dower, after assignment, by title paramount to that of her husband, cannot sue on the warranty to him. St. Clair v. Williams, 7 Ohio, pt. 2, 110. But dower assigned by metes and bounds, is an eviction under this covenant. Johnson v. Nyce, 17 Ohio, 66; Nyce v. Obertz, 17 id. 71. And so is dower assigned in rents and profits. McAlpine v. Woodruff, 11 Ohio State, 120. Though a married woman, uniting with her husband, cannot be sued upon this covenant, she is estopped by it. Hill v. West, 8 Ohio, 222. Where land in a deed is declared to be conveyed subject to a certain incumbrance, this is an exception of such incumbrance from the subsequent covenant of warranty, although the warranty is general in its terms. Bricker v. Bricker, 11 Ohio State, 240. Contra, Estabrook v. Smith, 6 Gray, 572.

The Covenant of Seisin. This covenant is broken as soon as made if the grantor has no title, without waiting for eviction, and the rule of damages is, the purchasemoney and interest, the same as in warranty. Innes v. Agnew, 1 Ohio, 386; Backus v. M'Coy, 3 id. 211; Spurk v. Vangundy, 3 id. 307; Robinson v. Neil, 3 id. 525; Kincaid v. Brittain, 5 Sneed, 119. But these cases also decide that where the grantor, at the time of making this covenant, was in actual possession, claiming title, the covenant is then a real one, and runs with the land. The covenants of seisin and of power to convey are not identical. The former is more comprehensive. But they agree in this, that if the grantor was in possession, they run with the land. Devore v. Sunderland, 17 Ohio, 52; Raymond v. Raymond, 10 Cush. 134. But in several of the States the covenant of seisin is not satisfied by an actual seisin, and it is regarded as a covenant for title. See Lockwood v. Sturdevant, 6 Conn. 385; Comstock v. Comstock, 23 id. 349; Parker v. Brown, 15 N. H. 186; Rawle on Covenants for Title, p. 48.

Covenants in General. A covenant to warrant and defend," as executors are bound by law to do," is not binding. Day v. Brown, 2 Ohio, 345. The same case decides that where the name of the covenantor is left blank, it cannot be filled by implication. But fiduciary vendors may, by apt words, bind themselves by personal covenants. Rawle on Covenants for Title, pp. 571-3. Lockwood v. Gibson, 12 Ohio State, 526. It is erroneous to decree that infants shall convey with covenants, since they cannot so bind themselves. St. Clair v. Smith, 3 Ohio, 355. A covenant with county commissioners thereafter to be elected is void. Sloane v. M'Conahy, 4 Ohio, 157. A covenant for conveyance may be discharged by a parol contract upon a sufficient consideration. Reed v. M'Grew, 5 Ohio, 375. A contract to convey so soon as the purchase-money shall be paid, requires simultaneous performance or tender of performance. Webb v. Stevenson, 6 Ohio, 282. Where the covenant is "to convey land in fee-simple, clear of all incumbrance, the title to be indisputable," there must be a clear, connected paper-title. Courcier v. Graham, 1 Ohio, 330. Where the covenant is to convey without naming the day, and on the other side, to pay part on demand, and the rest on a day named, the covenants are mutual as to time, and the purchaser cannot sue without payment or tender of the whole purchase-money. M'Coy v. Bixbee, 6 Ohio, 310. The covenant against incumbrances covers taxes which are a lien upon the land when the deed is made, though not yet due, and also all other incumbrances, though known to the parties, unless excepted in the deed; and parol evidence is not admissible to show that the parties intended them to be excepted. Long v. Moler, 5 Ohio State, 271.