We have no doubt that the ruling of the judge and his instructions to the jury, in this case, were correct. The question was, whether the land conveyed by the defendants to the plaintiff was truly described by the metes and bounds referred to in the deed, or whether this description may be controlled by a subsequent- reference to the land set off to William S. Cook, (from whom the defendants derived their title,) as his distributive share of the estate of Enoch Cook. It is a case of double description, and the rule of construction in such cases has been frequently considered, and it is now fully settled, that the description by metes and bounds is to prevail, although a different description is given by reference to the grantor’s title deeds. Crosby v. Bradbury, 2 Appleton, 61. Melvin v. Proprietors of Locks and Canals, 5 Met. 15. Drinkwater v. Sawyer, 7 Greenl. 366.
It has been said, and probably said truly, that there was a mistake in the description by metes and bounds. But who is to suffer by that mistake ? Certainly not the plaintiff. He was not bound to ascertain whether the description in his deed from the defendants agreed with the description of the land set off to William S. Cook; for the description is clear and certain. The land conveyed was expressly bounded by a new street; and when it is added that the land conveyed is the same lot which was set off to William S. Cook, that is equivalent to a covenant or averment, on the part of the defendants, that the lot thus set off did in fact extend to the new street. And there can be no question that the plaintiff purchased and paid for the land contained in the description. The defence, therefore, is not sustained by any principle of taw or justice. The defendants sold and conveyed to the plaintiff the land to which they supposed they had a good title, and it turns out that as to a part of it they had not. They are therefore bound to indemnify the plaintiff, for they covenanted that they were seized of the land described.
Judgment on the verdict.