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The consideration of a deed must be good or valuable, and not partaking of anything immoral, illegal, or fraudulent. It is a universal rule, that it is unlawful to contract to do that which it is unlawful to do; and every deed and every contract are equally void, whether they be made in violation of a law which is malum in se, or only malum prohibitum. (g) A good consideration is founded upon natural love and affection between near relations by blood; (h) but a valuable one is founded on something deemed valuable in a pecuniary sense, as money, goods, *465 services; and to these must be added, though depending on a different idea, marriage.1 There are some deeds, to the validity of which a consideration need not have been stated. It was not required at common law, in feoffments, fines, and leases, in consideration of the fealty and homage incident to every such conveyance. The law raised a consideration from the tenure itself, and the solemnity of the act of conveyance. The necessity of a consideration came from the courts of equity, where it was held requisite to raise a use; and when uses were introduced at law, the courts of law adopted the same idea, and held, that a consideration was necessary to the validity of a deed of bargain and sale. It has been long the settled law, that a consideration expressed or proved, was necessary to give effect to a modern conveyance to uses. (a) The consideration need not be expressed in the deed, but it must exist. The mention of the consideration in a deed was to prevent

(g) Aubert v. Maze, 2 Bos. & Pull. 371. Ribbans v. Crickett, 1 Ibid. 264. Watts v. Brooks, 3 Vesey, 612. Bank of the United States v. Owens, 2 Peters U. S. 527. (h) The relation of grandfather and granddaughter is within the requisite relation. Stovall v. Barnett, 4 Lit. (Ken.) 207.

(a) Lloyd v. Spillet, 2 Atk. 148. Jackson v. Alexander, 3 Johns. 491. Preston on Abstracts, vol. iii. 13, 14.

5 Natural love and affection, though a sufficient consideration to support a deed between near relatives, will not render obligatory a mere executory agreement. Duvoll v. Wilson, 9 Barb. (N. Y.) 487. A deed from an uncle to a niece is not supported by such a consideration. Mark v. Clark, 11 B. Mon. 44. The consideration applies to relations by affinity. Bells. Scammon, 15 N. Hamp. 381.

1 The seduction of an innocent woman by a pretended marriage is a valuable consideration for a deed subsequently made to her and her children. Doe v. Howe, 1 Carter (Ind.), 363. Carlisle v. Gaskill, 4 Ind. 219. The notes of a married woman are not a valuable consideration, but may become so if indorsed by her husband at the time they are given, or even afterwards, in pursuance of an agreement then made. Brown v. Lunt, 37 Maine, 423.

2 Frink v. Green, 5 Barb. (N. Y.) 455

a resulting trust, but it is only prima facie evidence of the amount, and may be varied by parol proof. (b) It is not evidence against existing creditors, that a consideration has been paid. (c) 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. (d) 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. (e) 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 a 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. (f) The receipt of the consideration-money is usually mentioned

6

(b) Meeker v. Meeker, 16 Conn. 383.8

(c) Kimball v. Fenner, 12 N. Hamp. 248.

(d) Mildmay's case, 1 Co. 175, a. Stevens v. Griffith, 3 Vermont, 448.

(e) Fisher v. Smith, Moore, 569. Jackson v. Schoonmaker, 2 Johns. 235. Jackson v. Alexander, 3 Ibid. 491. Cheeny v. Watkins, 1 Harr. & Johns. 527. Okison v. Patterson, 1 Watts & Serg. 395. Goodell v. Pierce, 2 Hill, 659.

(f) 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, 18 Maine, 233. Parol evidence may be given to vary the consideration. 14 Johns. 210. 20 Id. 338. 16 Wend. 460. 17 Mass. 249, 257. 8 Conn. 314.5

8 Stockett v. Holliday, 9 Md. 480. Thompson v. Thompson, 9 Ind. 323. Bennett v. Solomon, 6 Cal. 134.

4 Wait v. Wait, 2 Wms. (28 Vt.) 350. Hair v. Little, 28 Ala. 236. Splawn v. Martin, 17 Ark. 146. Where it is expressed in a deed of lands, that the grantee is to support the grantor during life, this agreement binds the grantee by his acceptance of the deed; and such a consideration supports the conveyance. Spalding v. Hallenbeck, 30 Barb. (N. Y.) 292.

Bingham v. Weiderwax, 1 Comst. 509. See Johnson v. Boyles, 26 Ala. 576. Vaugine r. Taylor, 18 Ark. 65. Rockhill v. Spraggs, 9 Ind. 30. Smith v. Battams, 40 Eng. L. & Eq. 507. Swafford v. Whipple, 3 Iowa, 261.

6 The principle is perhaps expressed with greater exactness in the case of Goodspeed v. Butler, 46 Maine, 141, where it was held, that the only effect of the usual clause acknowledging a consideration paid is to estop the grantor from denying that there was any consideration. For every other purpose, it may be explained, varied, or contradicted by parol. Wooden v. Shotwell, 3 Zabr. 465. No person can take advantage of the fraud but the party defrauded, and those who have his estate. Gage v. Gage, 9 Foster, 533.

in the deed; and Mr. Preston says, (g) that if the receipt of

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it be not indorsed upon the deed, it will, in transactions *466 of a modern date, be presumptive evidence that the purchase-money has not been paid, and impose upon a future purchaser the necessity of proving payment, in order to rebut the presumption of an equitable lien in favor 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 indorse 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. (a) If there be

(g) Abstracts, vol. i. 72, 299. Ibid. vol. iii. 15.

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(a) 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.

1 Bosworth v. Sturtevant, 2 Cush. 392. Emery v. Fowler, 38 Maine, 99. Haynes v. Young, 36 Maine, 557. Clark v. Baird, 5 Selden, 183. Robinson v. White, 42 Maine, 209. Doggett v. Willey, 6 Florida, 482. Coles v. Wooding, 2 P. & H. (Va.) 189. The line of another tract of land referred to in the deed as matter of description, controls course and distance; and it makes no difference whether a marked or unmarked line. Corn v. McCrary, 3 Jones Law (N. C.), 496.

2 If the particular description of land in a deed by metes and bounds be uncertain and impossible, a general description in the same conveyance will govern. Sawyer v. Kendall, 10 Cush. 241.

3 Seaman v. Hodgeboom, 3 Barb. (N. Y.) 215. Richardson v. Chickering, 41 N. Hamp. 381. If land is described by courses and distances and fixed monuments, the latter will control the former; but if no monuments are mentioned in the deed, then the courses and distances will control. Opdyke v. Stephens, 4 Dutch. (N. J.) 83.

nothing to control the course and distance, the line is run by the needle. (b) The mention of quantity of acres, after a certain 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 467 the given amount. (a) Whenever it appears by definite

(b) Jackson v. Carey, 2 Johns. Cas. 350. Trammell v. Nelson, 2 Harr. & M'Hen. 4. Pernam v. Wead, 6 Mass. 131. Howe v. Bass, 2 Mass. 380. Higley v. Bidwell, 9 Conn. 447. Benedict v. Gaylord, 11 Ibid. 335. Doe v. Porter, 3 Ark. 18, 57. White v. Gay, 9 N. Hamp. 126. M'Iver v. Walker, 9 Cranch. 173. Preston v. Bowmar, 6 Wheaton, 580. Colclough v. Richardson, 1 M'Cord, 167. Welch v. Phillips, Ibid. 215. Brooks v. Tyler, 2 Vermont, 348. Clark v. Wethey, 19 Wendell, 320. Lessee of Wyckoff v. Stephenson, 14 Ohio, 13, 15, 17. The rules of law as to the location of lands by description in deeds, and as to the resort to 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.), 385.4

Powell v.

(a) Mann v. Pearson, 2 Johns. 37. Smith v. Evans, 6 Binney, 102. Clark, 5 Mass. 355. And see 1 Aiken, 325, to the same point; Jackson v. Moore, 6 Cowen, 706; Allison v. Allison, 1 Yerger (Tenn.), 16.

4 Melcher v. Merryman, 41 Maine, 601. Campbell v. Branch, 4 Jones Law (N. C.), 313. Lots bounded on a meandered stream, are not bounded by the line run upon its bank, but extend to the middle of the stream. Jones v. Pettibone, 2 Wis. 308. Nichols v. Suncook Manufacturing Co., 34 N. Hamp. 345. See, also, Hall v. Pickering, 40 Maine, 548; Banks v. Ammon, 27 Penn. St., 172; Dikeman v. Taylor, 24 Conn. 219. If a deed bounds the grantee upon a highway, and there is nothing in the deed which can control the boundary, it carries the grantee to the centre of the highway. Morrow v. Willard, 30 Vermont, 118. And see Phillips v. Bowers, 7 Gray, 21. A conveyance of a lot of land in a city, without specified boundaries, but designated on a map as lying upon a street, as between grantor and grantee extends to the centre of the street. Bissel v. N. Y. Central Railroad, 23 N. Y. 61. Hammond v. McLachlan, 1 Sandf. (Law) 323. Where a boundary line runs to a river, and thence along the shore of the river, the grantee takes only to low water mark. Child v. Starr, 4 Hill, 369. But where a line commences at a post standing on the bank of a river, and after several courses and distances returns to a post on the bank of the river, and runs thence down the river and along the several meanders thereof, to the place of beginning, the grantee takes to the centre of the stream, it being considered that the posts on the bank only mark the direction of the lines to the river and the points of intersection. The Seneca Nation of Indians v. Knight, 23 N. Y. 498.

1 Roat v. Puff, 3 Barb. (N. Y.) 353 In this case, the deed contained the language"There being in the lot conveyed, 135 acres, strict measure," &c.; yet it was held, there was no covenant to make up the deficiency. See, also, Kruse v. Scripps, 11 Ill. 98. Where, from the face of the deed, it is doubtful whether the grantor intended to convey one or two parcels

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. (b) So, according to the maxim of Lord Bacon, falsa demonstratio 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. (c)3 Some things will pass by

(b) Stebbins v. Eddy, 4 Mason, 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 civilians, 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 v. M'Crummin, 12 Martin, 425. Lesassier v. Dashiell, 13 Louis. 151. Phelps v. Wilson, 16 Ibid. 185. La. Code, art. 2471. The Morris Canal Company v. Emmett, 9 Paige, 168. Pothier, Traité du Cont. de Vente, No. 255. A very great difference (as thirty-three per cent. for instance) 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. 164.2 Harrison v. Talbott,

2 Dana (Ken.), 258. In the last case, the series of Kentucky decisions on the subject are ably reviewed.

(c) Blague v. Gold, Cro. C. 447, 473. Jackson v. Clark, 7 Johns. 217. Howell v. Saule, 5 Mason, 410. Com. Dig. Fait. E. 4.

of land, the court will construe the deed most strongly against the grantor, that it may not be rendered inoperative for uncertainty. Carrington v. Goddin, 13 Gratt. (Va.) 587. Bird v. Bird, 40 Maine, 398. But the rule that a grant is to be construed most favorably for the grantee, is inapplicable, where the grantor is a corporation holding a street for public purposes and disposing of the adjacent lots for private use, and that, in such case, the boundary of the private property by that held for public purposes, will be the dividing line between the two, the same as when one lot is bounded by another. Wetmore v. Story, 22 Barb. (N. Y.) 414.

2 Lee v. Hester, 20 Geo. 588. In Buckman v. Outwater, 4 Dutch. (N. J.) 581, it is held, that on a conveyance of land without reservation, manure lying in and around the barnyard does not pass to the grantee. It is otherwise if taken from the yard and piled in heaps upon the land where it is to be used. Fay v. Mussy, 13 Gray, 53. But see cases under the head of "Fixtures."

8 Under the New York Statute it has been held, that a comptroller's deed of lands sold for taxes, is void, if the lot be designated by a wrong number, though, without the number, the description would be adequate. Dike v. Lewis, 4 Denio, 237. A true and certain description in a grant of land is not invalidated by the insertion of a falsity in the description, when, by rejecting the erroneous part, the conveyance can be supported, according to the intention of the parties. Abbott v. Pike, 33 Maine, 204. See Dodge v. Potter, 18 Barb. (N. Y.) 193; Har vey v. Mitchell, 11 Foster, 575; Smith v. Chatham, 14 Texas, 322; Bell v. Sawyer, 32 N. Hamp. 72. A defective description in a deed may be cured by its referring to another deed in which