
    Jackson, ex dem. Casselman, against Lepper and Dillenback.
    ALBANY,
    Feb. 1808.
    Lot no. 50, in tne second aliotment of Stone arabia patent, according told the survey of madePbynjS«idrick Frey, in if54, and as designated and described by that survey.
    THIS was an action of ejectment, for lands in Montgoraery county. The cause was tried before Mr. Chief _ . „ J , , „ , _ , Justice Kent, the 3d July, 1805.. The lessor or the P*a*nt^ claimed the premises, as part of lot no. 50, in the second allotment of the Sioncarabia patent, and gave in evidence on the trial, a deed from Martims Dillenback to 
      Dederick Dillenback, dated the 30th March, 1766, for the raid lot, and a deed from Dederick to the defendant, dated the 4th February, 1789, for the north end of the lot. Neither of the deeds mentioned the courses or length of the lines of the lot. In the field book of the survey of the second division of the patent, lot 50 is thus described, “ beginning at S. E. corner of lot no. 47, and running thence E. 12 chains, thence N. 88 chains, thence W. 12 chains, thence S. 88 chains to the place of beginning.” One Beekman, a surveyor, testified for the plaintiff, that he had surveyed the whole tier of lots of the second division of Stonearabia, including lot no. 50, and began at a place shown as the beginning of the second division, by the parties living on both the second and third divisions, and he found ancient possessions, and marked trees, until near the defendant’s lot, and agreeing with the lines contended for by the plaintiff: That the marked trees, from their age, agreed with the division made by one Schuyler, in 1733, and that the defendants’ possession, within the bounds of lot no. 50, as claimed by the plaintiff, is not above eight or ten years old: That, according to his opinion of Schuyler's line, the defendants have ten or twelve acres of the plaintiff’s land in their possession. Dillenback, one of the defendants, claimed the premises as part of lot no. 16, in the third allotment.
    The defendants proved, that in 1754, one Hendrick Frey made a survey of the patent for the proprietors, and laid out a part of it into lots : That he made a map, on which he designated the lots, before laid out, as well as the lots which he then laid out, and annexed to the map a description of the boundaries of each lot, and the persons for whom they were laid out in the third allotment, in which allotment, no. 21 is described, as laid out for Martinus Dillenback, and no. 16 for Hendrick Dillenback, and the courses and distances of each of the said lots, and of lots no. 22 and 17, are particularly described.
    The defendant gave in evidence a deed executed the 18th of March. 1754, from Martinus Dillenback and twen-ty-seven others, owners of the said patent, to Hendrick Dillenback, for lot no. 16, in the third allotment, and the lot is described as above mentioned. It was proved, that Hendrick Dillenback was dead, and that John Dillenback, one of the defendants, was his devisee.
    One Lansing, a witness for the defendants, testified, that he surveyed the premises, and began at a black oak tree, marked, at the N. E. corner of lot no. 58, and the S. E. corner of lot no. 16, marked in 1754: That he run on Frey's line, and found marked trees, and no land S. of that line in the possession of the defendants : That 30 chains and 50 links N. of that line, he found an old line of marked trees, between lots no. 16 and 17, and, according to which line, ancient possessions on lot no 17 agree : That 30 chains and 50 links from the black oak tree, he found a large white pine tree marked as the corner between lots no. 16 and 17, and that he run 95 chains S. from the E. line of 58, and did not reach the patent line.
    On this testimony, a verdict was taken for the plaintiff, subject to the opinion of the court, upon a case containing the above facts.
    
      Van Vechten, for the plaintiff.
    
      Cady, for the defendant.
   Per Curiam.

We are of opinion in this case, that the defendant ought to succeed, and, consequently, that judgment of nonsuit must be entered according to the stipulation in the case.

The Stonearabia patent was surveyed for the proprietors, in 1754, by Hendrick Frey. Martinus Dillenback was then one of the proprietors, and the lessor of the plaintiff derives his title to his part of lot no. 50^ in the second allotment of the patent, under a conveyance from the said Martinus, executed in the year 1766. The deed did not specify the courses or length of the lines of the said lot, but simply conveyed the land as lot no. 50. According to Frey's survey, the defendants are not in possession of any part of lot no. 50, and Dillenback and those who claim under him, ought to be confined to lot no. 50, as designated by Freys survey. Until the contrary appears, (and it does not appear in the present case) we must intend that Frey’s• survey was acquiesced in by the proprietors, and that lot no. 50, by that general description, was intended to be, as ascertained by that survey.

Judgment of nonsuit.  