sence of such a recital does not affect the right of the grantee to show its payment for the purpose of supporting the conveyance. 152

§ 385. Reality of consent.

While a conveyance is presumed to have been made with the free consent of the parties thereto, it may, in certain cases, be shown that such consent was wanting. The want of consent may arise from mistake on the part of the parties as to a material fact concerning the subject-matter of the contract, as when the quantity of land embraced in the description is materially different from that which the parties supposed it to include, and with reference to which the price was fixed.153 And the fact that the parties failed to agree as to the land to be conveyed, though supposing that they did so, is also ground for rescission of the conveyance. 154 A mistake in the preparation of the conveyance, as when it purports to convey land other than that which it was agreed should be conveyed, or when the land as described differs from that sold, is ground for reformation of the conveyance.155 So, a mistake in the

577; Kimball v. Walker, 30 Ill. 482, 511; Bolles v. Sachs, 37 Minn. 318; Hebbard v. Haughian, 70 N. Y. 54; Kickland v. Menasha Wooden Ware Co., 68 Wis. 34, 60 Am. Rep. 831; McCrea v. Purmort, 16 Wend. (N. Y.) 460, 30 Am. Dec. 103; Wilkinson v. Scott, 17 Mass. 249.

152 Lowry v. Howard, 35 Ind. 170, 9 Am. Rep. 676; Boynton v. Rees, 8 Pick. (Mass.) 329, 19 Am. Dec. 326; Jackson v. Dillon's Lessee, 2 Overt. (Tenn.) 261; Den d. Springs v. Hanks, 27 N. C. 30; Sprague v. Woods, 4 Watts & S. (Pa.) 192; Wood v. Chapin, 13 N. Y. 509, 67 Am. Dec. 62; Underwood v. Campbell, 14 N. H. 393.

158 O'Connell v. Duke, 29 Tex. 299, 94 Am. Dec. 282; Hansford v. Chesapeake Coal Co., 22 W. Va. 70; Miller v. Craig, 83 Ky. 623, 4 Am. St. Rep. 179; Folsom v. Howell, 94 Ga. 112; Read's Adm'rs v. Cramer, 2 N. J. Eq. 277, 34 Am. Dec. 204.

154 Barfield v. Price, 40 Cal. 535; Hodges v. Horsfall, 1 Russ. & M. 116; Harris v. Pepperell, L. R. 5 Eq. 1.

155 Blair v. McDonnell, 5 N. J. Eq. 327; Baxter v. Tanner, 35 W.

words in the conveyance limiting the interest in the land which it was agreed should be conveyed may be corrected, as when there is an omission of words of inheritance, 156 Relief will also frequently be given when the legal nature and effect of the conveyance as written does not correspond with the agreement of the parties, in accordance with which it is made.157

The want of consent may also arise from the fact that the conveyance was procured by fraudulent representations,158 or by duress,159 or undue influence, 160

Va. 60; Barth v. Deuel, 11 Colo. 494; Felton v. Leigh, 48 Ark. 498; Baker v. Pyatt, 108 Ind. 61; Parker v. Benjamin, 53 Ill. 255; Stevens v. Holman, 112 Cal. 345, 53 Am. St. Rep. 216.

156 Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; McMillan v. Fish, 29 N. J. Eq. 610; Brock v. O'Dell, 44 S. C. 22; Lardner v. Williams, 98 Wis. 514. See Benson v. Markoe, 37 Minn. 30, 5 Am. St. Rep. 816.

157 Paget v. Marshall, 28 Ch. Div. 255; Gruing v. Richards, 23 Iowa, 288; Kerr v. Couper, 5 Del. Ch. 507; Sparks v. Pittman, 51 Miss. 511; Foster v. Mackinnon, L. R. 4 C. P. 704; In re Garnett, 31 Ch. Div. 648, 33 Ch. Div. 300; Thoroughgood's Case, 2 Coke, 9a; Pollock, Contracts (6th Ed.) 443; Benson v. Markoe, 37 Minn. 30, 5 Am. St. Rep. 816; Canedy v. Marcy, 13 Gray (Mass.) 373.

168 Blackburn v. Wooding, 6 C. C. A. 6, 56 Fed. 545; Castle v. Kemp, 124 Ill. 307; Carver v. Carver, 97 Ind. 497; Berry v. Whitney, 40 Mich. 65; Mortland v. Mortland, 151 Pa. St. 593; Matlack v. Shaffer, 51 Kan. 208, 37 Am. St. Rep. 270; Ruffner v. Ridley, 81 Ky. 165.

159 Harshaw v. Dobson, 67 N. C. 203; Eadie v. Slimmon, 26 N. Y. 12; Gohegan v. Leach, 24 Iowa, 509; Tapley v. Tapley, 10 Minn. 448 (Gil. 360), 88 Am. Dec. 76; Muller v. Buyck, 12 Mont. 354; Kocourek v. Marak, 54 Tex: 201, 38 Am. Rep. 623. See Rendleman Rendleman, 156 Ill. 568.

180 Ross v. Conway, 92 Cal. 632; Chase v. Hubbard, 153 Mass. 91; Caspari v. First German Church of New Jerusalem, 82 Mo. 649; Graham v. Burch, 44 Minn. 33; Hoppin v. Tobey's Ex'rs, 9 R. I. 42; Leighton v. Orr, 44 Iowa, 679; Sands v. Sands, 112 Ill. 225; Allore v. Jewell, 94 U. S. 506.

386. Effect of alterations.

Since the conveyance takes effect only upon delivery,181 until that is effected, the grantor may make such alterations or insertions therein as he may desire.162

An alteration made, after delivery, by consent of all the parties to the conveyance, is binding and effective if it is followed by a new delivery of the instrument,163 provided, it seems, that no rights vested in the grantee by the conveyance as it originally stood are divested by such alteration,164 and subject to the restriction that the record of the conveyance in its altered state will not affect innocent third persons unless it is acknowledged after the alteration.165

An alteration made after the delivery of the conveyance, not followed by a new delivery, is absolutely nugatory, so far as concerns any rights which may have already vested under the conveyance.166 Any material alteration, erasure,

181 Post, 406.

162 Duncan v. Hodges, 4 McCord (S. C.) 239, 17 Am. Dec. 734; Miller v. Williams (Colo.) 59 Pac. 740; Reformed Dutch Church of North Branch v. Ten Eyck, 25 N. J. Law, 40; Coney v. Laird, 153 Mo. 408.

168 Malarin v. United States, 1 Wall. (U. S.) 282; Woodbury v. Allegheny & K. R. Co. (C. C.) 72 Fed. 371; Fitzpatrick v. Fitzpatrick, 6 R. I. 64, 75 Am. Dec. 681; Bassett v. Bassett, 55 Me. 127; Prettyman v. Goodrich, 23 Ill. 330; Burns v. Lynde, 6 Allen (Mass.) 305; Tucker v. Allen, 16 Kan. 312; Byers v. McClanahan, 6 Gill & J. (Md.) 250.

164 See post, § 406.

165 Moelle v. Sherwood, 148 U. S. 21; Sharpe v. Orme, 61 Ala. 263; Webb v. Mullins, 78 Ala. 111. See Coit v. Starkweather, 8 Conn. 289.

166 Do3 d. Lewis v. Bingham, 4 Barn. & Ald. 672; Chessman v. Whittemore, 23 Pick. (Mass.) 231; Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Jackson v. Jacoby, 9 Cow. (N. Y.) 125; Stanley v. Epperson, 45 Tex. 645; North v. Henneberry, 44 Wis. 306; Rifener v. Bowman, 53 Pa. St. 313; Collins v. Collins, 51 Miss. 311, 24 Am. Rep. 632.

or cancellation, however, invalidates any limitations or covenants therein having an operation in the future. 167

III. DESCRIPTION OF THE Land.

The most usual modes of describing the land which is the subject of the conveyance are (1) the use of a distinctive designation recognized as applicable to that particular land; (2) reference to the township and section of the government survey; (3) reference to a map or plat which indicates the location of the land; (4) identification of the boundaries of the land by reference to monuments or courses and distances.

A conveyance of land as bounded on a body of water or watercourse, or on a highway, will pass the land under the water or within the highway as far as the grantor owns, this being usually as far as the center of a watercourse or a highway. A different rule is frequently adopted when the land is in terms bounded by the margin of the water or the highway. Easements appurtenant to land pass therewith without special mention.

$387. General considerations.

In order to make a valid conveyance of land, it is essential that the land itself, the subject of the conveyance, be capable of identification, and, if the conveyance does not refer to the land with such particularity as to render this possible, the conveyance is absolutely nugatory.168 The lan

167 Sheppard's Touchstone (Preston's Ed.) 69; Mathewson's Case, 5 Coke, 23a; 2 Bl. Comm. 308; 4 Cruise, Dig. tit. 32, c. 27, §§ 1222; Lewis v. Payn, 8 Cow. (N. Y.) 71, 18 Am. Dec. 427; North v. Henneberry, 44 Wis. 306; Withers v. Atkinson, 1 Watts (Pa.) 236; Wallace v. Harmstad, 15 Pa. St. 462, 53 Am. Dec. 603; Chessman v. Whittemore, 23 Pick. (Mass.) 231.

168 Brandon v. Leddy, 67 Cal. 43; Holme v. Strautman, 35 Mo. 293; Carter v. Barnes, 26 Ill. 455; Wilson v. Johnson, 145 Ind. 40; Wilson v. Inloes, 6 Gill (Md.) 121; Bailey v. White, 41 N. H. 337; Kea v. Robeson, 40 N. C. 373; Howard v. North, 5 Tex. 290, 51 Am. Dec. 769.

(881)

guage of the conveyance by which the land is sought to be identified is usually referred to as the "description."

The description may be by the use of a designation for the land which has a recognized application thereto, as when one conveys the "A." estate or the "B." farm. 169 The grantor may also describe the land as his land in a certain town, or in a certain block, or on a certain street, and such a description is sufficient if the land can be identified.170 So, a conveyance of "all the land" or "all the property" owned by the grantor, or of all that owned by him in a particular district, is sufficient to convey land within the scope of the description,171 as is a conveyance of all one's interest in the estate of a person deceased,172 or of such land as formerly belonged to or was conveyed to a particular person.1 178

Whenever land is occupied and improved by a building or other structure designed for a particular purpose, which comprehends its beneficial use and enjoyment, it may be conveyed by a term which thus describes the purpose to which

189 See Haley v. Amestoy, 44 Cal. 132; Trentman v. Neff, 124 Ind. 503; Vaughan v. Swayzie, 56 Miss. 706; Charles v. Patch, 87 Mo. 450; Lennig's Ex'rs v. White (Va.) 20 S. E. 831.

170 Frey v. Clifford, 44 Cal. 335; Blair v. Bruns, 8 Colo. 397; Bird v. Bird, 40 Me. 398; Harmon v. James, 7 Smedes & M. (Miss.) 111, 45 Am. Dec. 296; Doe d. Carson v. Ray, 52 N. C. 609, 78 Am. Dec. 267.

171 Pettigrew v. Dobbelaar, 63 Cal. 396; First Nat. Bank of Attleboro v. Hughes, 10 Mo. App. 7; Brown v. Warren, 16 Nev. 228; Marr v. Hobson, 22 Me. 321; Harvey v. Edens, 69 Tex. 420; Clifton Heights Land Co. v. Randell, 82 Iowa, 89; Sally v. Gunter, 13 Rich. Law (S. C.) 72.

172 Sheppard's Touchstone, 250; Barnes v. Bartlett, 47 Ind. 98; Patterson v. Snell, 67 Me. 559; Butrick v. Tilton, 141 Mass. 93; Austin v. Dolbee, 101 Mich. 292; Stewart v. Cage, 59 Miss. 558; Barton's Lessee v. Morris' Heirs, 15 Ohio. 408; McGavock v. Deery, 1 Cold. (Tenn.) 265.

178 Choteau v. Jones, 11 Ill. 300, 50 Am. Dec. 460; Hogan v. Page, 22 Mo. 55; McChesney's Lessee v. Wainwright, 5 Ohio, 452; Gresham Chambers, 80 Tex. 544.