The opinion
OoNNoe, J.,
after stating tbe facts: Tbe case seems to have been tried upon tbe pleadings and admissions. Neither party tendered any issues, and, of course, no prayers for instructions. It is manifest that tbe defendants only intended to convey, and plaintiffs to buy, tbe interest of tbe defendants in tbe Smith land. It is equally clear bow tbe draftsman fell into tbe error of supposing, in tbe absence of any plat showing partition of tbe H. 0. Smith land, that such interest extended to both tbe 47-acre and tbe 15 %-acre'tracts; whereas tbe defendants bad no interest in tbe last-named tract. It is equally clear that tbe controlling thought of tbe grantors was tbe conveyance of their interest in the LI. 0. Smith land “as divided by tbe committee.” If there bad been no division, tbe deed would have conveyed only tbe undivided interest, and not any specified number of acres; hence, the mention of tbe number of acres only indicated tbe extent of tbe interest. If "tbe number of acres is controlling, tbe plaintiffs got more than they were entitled to in tbe 47-acre tract. If this was tbe basis upon which tbe contract price was fixed, plaintiffs have 90 acres, whereas they would have bad but 86 acres. If it was “an undivided interest” which they were buying, they got “the interest” of tbe grantors in tbe land of IL. 0. Smith as divided by tbe committee, which is all that tbe deed purported to convey. Hence they show no breach of tbe warranty.
We think that bis Honor’s view was correct, and that, reading tbe entire description in tbe light of tbe admissions, tbe
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deed conveys all that the parties intended to grant or plaintiffs were entitled to receive. Plaintiffs suggest that they were entitled to have the question whether there was a mistake in the deed submitted to the jury. It does not appear that any request was made to his Honor to do so. We are of the opinion that his Honor correctly interpreted the deed. The judgment should be
Affirmed.