N. Carter at tax sale, and from Leon N. Carter all, except the land in controversy, passed to Clark and Boyce in 1887.

From Clark and Boyce, it passed to Gus Bender (now dead), and from his succession to Mrs. Sophia Bender, his widow, and their children.

On the 20th day of April, 1887, Gus Bender bought from Clark and Boyce under the following description:

TION OF PROPERTY.

A particular description in a deed is not enlarged by language showing that the vendor intended to convey the same and identical real estate conveyed by a former deed, to which reference is made. The second deed may convey the same land as described in the former deed, without conveying all of it, and the reference may be merely for greater identification of the land conveyed.

[Ed. Note.-For other cases, see Deeds, Dec. Dig. § 114.*]

6. REFORMATION OF INSTRUMENTS (§ 29*)RIGHT OF ACTION EFFECT AS TO THIRD PERSONS.

Courts do not favor actions for remodel

ing deeds to better express the intent of the parties to the deed, when the rights of innocent third persons have intervened.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. §§ 112, 113; Dec. Dig. § 29.*]

7. VENDOR AND PURCHASER (§ 233*)—BONA FIDE PURCHASERS-NOTICE.

Registry laws are in the public interest, requiring stability of titles; and where no bad faith is shown the title of one who has ac

quired on the faith of properly recorded titles

fourteen; and south half of north half, and "All of section thirteen; east half of section west half of southeast quarter; and east half of southwest quarter of section twenty-five, township twenty-one north, range sixteen west, acres, being the same land patented to John T. Roots on the twenty-first day of June, 1884, by the state of Louisiana; by him, the said John T. Roots, sold and conveyed to us by his patent, dated Jan. 18, 1881."

The land in controversy, to wit, the N. E. 14 of the S. E. 14, section 25, township 21 N., range 16 W., containing 40 acres, is not described in the foregoing.

It is described in former acts as above, and the description also includes the land in controversy.

In the deeds to and including that to Bender, the land was referred to as measuring 1,32084/100 acres.

In all the deeds, the land was referred to as containing that number of acres. The defendant and his authors acquired the land from Clark and Boyce.

In some instances, the consideration paid was one dollar.

The question whether Gus Bender acquired 20, 1887, was decided adversely to plaintiffs, the property from Clark and Boyce on April who, as before stated, are the wife and heirs of Bender.

Appeal from First Judicial District Court, Parish of Caddo; Thomas F. Bell, Judge. Action by Mrs. Sophia Bender against W. D. Chew. From a judgment for defendant, plaintiff appeals. Affirmed.

Alexander & Wilkinson, for appellant. Thigpen & Herold and E. W. Sutherlin, for appellee.

BREAUX, C. J. This was an action by plaintiff against defendant to recover 40 acres of land, to wit, the N. E. 4 of the S. E. 4 of section 25, township 12, range 16, in the Caddo oil fields.

This tract and adjacent lands became the property of John T. Roots, who obtained a patent from the state, in the year 1884, for 1,32084/100 acres, including the land in question.

Roots not having paid his taxes, the property was advertised and adjudicated to Leon

The redemption from Leon N. Carter, adjudicatee at tax sale, to Clark and Boyce was filed the same day.

The deed to Gus Bender was filed April 20, 1887, one day prior.

Defendant acquired the property from Clark and the heirs of Boyce.

The year after Bender acquired the property, it was assessed under the description of the N. % of the S. E. 4 of section 25, same township and range as above mentioned.

It was assessed together with the other property mentioned.

The evidence shows that it was not assessed for that year in the name of Clark and Boyce.

Bender, years ago, not long after his purchase, built a fence around the whole tract, except the 40 acres.

In the year 1898, he sold, by particular description, all the lands above mentioned

No mention whatever was made of the 40 acres of land in question.

Mrs. Bender, one of the plaintiffs, testified that she knew nothing of this land, and added that, in a general way, she knew that her husband had land.

She evidently knew nothing of these 40 acres until a short time before this suit was brought.

of the following in the deed:

"Being the same land patented to John T. Roots on the twenty-first day of April, 1884, by State of Louisiana, and by him, the said John T. Roots, sold and conveyed to us by his deed of Jan. 18, 1886."

The mesne purchasers were A. P. Flournoy and D. T. Land, who do not appear to have had any information about this 40-acre tract, sold to the former by Clark and Boyce separate and apart from the other lands which they had owned.

Plaintiff's contention is that, while the 40 acres in question are not described by government descriptions in the conveyance to Gus Bender, they are otherwise sufficiently described and identified by acreage and by reference to the title under which the vendors hold.

On the other hand, defendant contends that plaintiff's deed, as it does not call for all of the land, does not control the specific description under which defendant and his predecessors in title acquired; that it did not convey a notice to purchasers of the sale of the land as it would have conveyed, had it been specifically described in the deed.

First as to identification of land by acreage:

[1-3] Such method of identification is considered the weakest; it yields to every other method. The measurement of lines and boundaries, natural or artificial, and other similar methods, have the preference over the mere area of the land. It is not susceptible of determination, save by a survey, while courses and distances are generally easily identified.

If it was not the intention to include this small body of land with the other lands sold, the area cannot be held controlling.

Innocent third purchasers cannot be held to the necessity of ascertaining whether or not the land remaining to their vendors is equal in area to the body of land which they purchased.

There is no question but that originally the patent was issued by the government of the quantity of acres before mentioned.

That fact alone cannot prejudice the rights of purchasers, who are not in the least informed about the whole tract containing the number of acres before mentioned.

The next proposition of the plaintiff is that the land is identified in the different deeds under which plaintiff holds by reference in these deeds to the title under which the vendors held it.

That would be true only if these deeds contained the usual description of property

predecessors in title hold.

Bender or his widow never thought of paying taxes on these lands.

He never claimed, and his wife, after his death, never heard that she and her children were the owners.

If she owned at all, it was to her an unknown title.

The claim made by her to this land is evidently an afterthought.

That would not amount to anything, if it were not that the ambiguousness of the description shows that from the first there was no thought on the part of Bender, buyer, and afterward of Bender, the vendor of the property, to claim it as his own.

It is surely extraordinary that one should sell a large body of land and reserve 40 acres from the deed, without in the course of time any one hearing anything in connection with the reservation made from the area sold.

Taking the deed as a whole, the description does not suggest an oversight.

[4] That construction should control which appears most in accordance with the intention of the parties. Driscoll v. Green, 59 N. H. 101, referred to in Century Digest, vol. 16, p. 393 (W).

[5] It is, besides, a rule of interpretation that a particular description in a deed, referring to a former deed, even though the language is that the grantor intended to convey the same and indentical real estate conveyed by the former deed, is not necessarily enlarged. The whole intent is to be taken from the whole description, particular as well as general. Brunswick Savings Inst. v. Crossman, 76 Me. 577, cited from Century Digest, vol. 16, before cited.

The general description by reference to a patent and a former deed is not suggestive of intention to buy other lands; it is more suggestive of the intention of obtaining full title to land particularly described.

No mention is made of all the land, only the same land, which does not necessarily include other lands than those described. Had the word "all" been used, that would have made the deed quite unambiguous and plain.

It has been decided that a clause in a deed at the end of a particular description of the land by metes and bounds, meaning and intending to convey the premises, is merely a help to the title, and does not enlarge the

grant. Brown v. Heard, 85 Me. 294, 27 Atl. 182.

A description by metes and bounds, as in the sale referred to in the last-cited case, is not more expressive or controlling than the subdivisions of the United States survey. A rule governing in the one instance may well govern in another.

Registry laws are enacted in public interest, where the issue is, as just mentioned, held controlling. McDuffie v. Walker, 125 La. 152, 51 South. 100; Baum v. Smith, 127 La. 1090, 54 South. 399; John T. Moore v. Railway Co., 126 La. 840, 53 South. 22.

As between vendor and vendee in this instance, no fact was of record requiring in

vendee claims.

[6] Reforming a deed which does not set out the intention of parties:

The decisions of this court are not favorable to the remodeling of deeds in which third persons, as in this instance, have an interest as owners. There is a long line of pertinent decisions on the subject, the read

BAUTOVICH v. GREAT SOUTHERN LUMBER CO.

that an action, such as this, cannot, as a general proposition, be maintained against a stranger to the deed, who becomes the owner.

The following decisions present the subject from different viewpoints, leading to the conclusion that, in all fairness, one should not be put on a voyage of discovery to determine whether or not all the property he buys is properly included in the deed which the one who proposes to become a vendor

holds.

We insert the whole list for any reference hereafter, in case of a similar issue presenting itself.

The correction and remodeling were made, inter alia, in these decisions: Sentell v. Randolph, 52 La. Ann. 52, 26 South. 797; Jones v. Jones, 51 La. Ann. 645, 25 South. 368; Baum v. Smith, 127 La. 1089, 54 South. 399; Washington v. Filer, 127 La. 862, 54 South. 128; 'Duson v. Roos, 123 La. 835, 49 South. 590, 131 Am. St. Rep. 375; Sicard v. Gumbel, 112 La. 483, 36 South. 502; Lognion v. Fontenot, 121 La. 902, 46 South. 914; Warner v. Lumber Co., 121 La. 90, 46 South. 108; State v. Hackley-Hume & Joyce, 124 La. 854, 50 South. 772; Rudolf v. Gerdy, 121 La. 477, 46 South. 598; Vital v. Andrus, 121

La. 221, 46 South. 217; Harris v. Harris, 109 La. 916, 33 South. 918; Adams v. Lumber Co., 115 La. 179, 38 South. 957; Adams v. Drews, 110 La. 456, 34 South. 602.

[7] The record owner:

Of late years, the decided tendency is to let the deed of record be controlling, except in case of circumvention, bad faith, or fraud. There is nothing of the kind in this instance. On the face of the papers, as between the last vendor and vendee in point of date of sale, there is not the most remote appearance or the least notice of bad faith on the part of the present record purchaser.

Rehearing Denied Jan. 2, 1912.)

(Syllabus by the Court.)

1. SALES (§ 275*)-Contract-WARRANTY OF QUANTITY.

coal manufactured at defendant's plant, within An agreement to sell and deliver all chara certain time, "estimated at two or more cars per week," does not imply a warranty of quantity by defendant, but only an estimate of the probable amount, in reference to which good faith is all that is required of the party making it.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 744, 748; Dec. Dig. § 275.*]

2. SALES (§ 411*)—BREACH OF CONTRACT-PE

TITION.

Where, in a suit for damages on such a contract, the petition merely alleges a breach by nondelivery of the full estimated amount, held, that the petition discloses no cause of action.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1161-1164; Dec. Dig. § 411.*]

(Additional Syllabus by Editorial Staff.) 3. WORDS AND PHRASES "ESTIMATE." and its ordinary meaning is to calculate roughThe word "estimate" precludes accuracy, ly or to form an opinion from imperfect data, and the word "estimate" has no more certainty than the term "about" or "more or less" (citing Words and Phrases, vol. 3, p. 2493).

Appeal from Twenty-Sixth Judicial District Court, Parish of Washington; Thomas M. Burns, Judge.

Action by F. C. Bautovich against the Great Southern Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed, and suit dismissed.

Miller & McDougall, for appellant. Ott, Johnson & Ott, for appellee.

LAND, J. Plaintiff sued for damages in the sum of $2,640 for loss of profits alleged to have been sustained by the failure and refusal of the defendant to ship charcoal, dur

ing the months of January, February, and March, under a written contract, as follows, viz.:

"Bogalusa, La., January 2, 1910. "Agreement between F. C. Bautovich of New Orleans, La., and the Great Southern Lumber Company of Bogalusa, La., for the months of January, February and March, 1910.

"The latter agrees to deliver all charcoal made by them at Bogalusa, estimated at two or more cars per week, weather permitting, at $122.00 per 40 foot box car, * f. o. b. Bogalusa. "It further agrees to load cars full at Bogalusa and to furnish a clean, dry charcoal, of equal grade as shipped at present by said com

pany.

"Mr. Bautovich agrees to take all the charcoal made by this company, and to pay cash weekly for cars received up to date."

Plaintiff alleged that he had received only four cars of charcoal under the terms of the contract, and had lost a profit of $120 per car, on 22 cars of charcoal, and that he had repeatedly put the defendant in default, by written demands for the shipment and delivery of charcoal pursuant to the terms of the

contract.

two years, say from 1,000 to 1,200 gallons per month."

In that case plaintiff alleged:

"That although he has received 3,000 gallons, the defendant ought under the agreement to have made naphtha at the rate of from 1,000 to 1,200 gallons per month, which would have amounted to a much larger quantity than the 3,000 gallons; that is to say, 10,000."

And he assigned as a breach of the contract the not delivering to him the difference between the 3,000 and the 10,000 gallons. Lord Abinger, C. B., construed the contract to mean that the defendant undertook to sell to the plaintiff all the naphtha he might make in his works during the next two years, and held that the declaration was insufficient in not averring that in the ordinary course of his manufacture the defendant should have produced a larger quantity of naphtha than 3,000 gallons, or that the defendant had fraudulently misrepresented the capacity of his plant. Inter alia, the court said:

Defendant then answered that it sold and delivered to the plaintiff all charcoal made by it at Bogalusa, after the date of the contract, and that said charcoal was all it was able to manufacture during the three months mentioned in the agreement.

The case was tried, and judgment was rendered in favor of the plaintiff, for $1,680, with legal interest thereon from the date of the decree, and costs of suit. Defendant has appealed.

The thing sold was all the charcoal that might be made by the defendant at Bogalusa, during the months of January, February, and March, 1910, and the plaintiff agreed to take all the charcoal that might be made by the plaintiff during said period. The char

coal was to be manufactured after the date of the contract, and it was estimated that the plaintiff would make two or more car loads per week.

And in conclusion that:

"It is consistent with the breach assigned in the declaration that the works were wholly incapable of producing more than the quantity actually delivered."

in Brawley v. The United States, 96 U. S. 168, 24 L. Ed. 622, the ruling in Gwillim v. Daniel, supra, was declared to be a correct exposition of the law applicable to contracts to sell and deliver goods that may be manufactured by the vendor in a certain establishment, or otherwise identified by reference to independent circumstances; "and the quantity is named with the qualification of about' or 'more or less,'" or words of like import. In this connection, the court said:

"The naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making."

tion that the defendant could have made more charcoal than was delivered to plaintiff, and there is no averment of fraud or bad faith.

In Gwillim v. Daniel, 2 Crompton, M. & R. 61, the contract declared on was:

"That the defendant agreed to sell, and the plaintiff agreed to purchase, all the naphtha which defendant might make from the first day

and Phrases, vol. 3, p. 2493.

The word "es

timate" has no more certainty than the terms

"about" or "more or less."

We therefore are of opinion that the exception should have been sustained.

For the reasons stated, it is ordered that the judgment below be reversed; and it is now ordered that the exception of no cause of action filed by the defendant be sustained, and that plaintiff's suit be dismissed,