
    HELM vs. SMALL.
    Th« calls/⅝ e‘n ota patent, controlled and re-£¾15⅛<5 therein contain, *d, and proof '^at ⅝ lurv'y where the ether calIs
    x Hen &Mt¡n. Í77-S."
    ON the trial of an ejectment, in the Shelby circuit court, an agreed case, which, substantially, exhibited the following facts, was brought before the court.
    The plaintiff, Helm, claimed under a patent, for 500 acres of land ; calling to lie on both sides of Fox run:, and to adjoin Marsham Brashear on the north ; to begin at a white-oak and sugar tree, corner to said M. Bra-shear’s land, and to run north 20Ó poles, to certain comer trees ; thence rve$t 400 poles, to certain other corner trees ; thence south 200 poles, to certain othér corner trees ; thence east 400 poles, to the beginning; and calls to cross Fox run, both in the second and fourth lines. The courses, however, would not cross Fox run, ih' either line ; and would lay the survey off, on the west side of the first line! In that direction, neither lines nór comets were found, corresponding with the patent, nor would it adjoin Brashear on the north, but would barely corner with him, at his north-west corner, and lie north-west from Brashear’s.
    It was proved by one of the original chain-carriersj that the survey was really made on the east side of the first line, reversing the courses of the second and fourth lines called for in the patent. The lines and corners of the survey, as actually ttiade, were shewn and proved, and correspond, in every particular, with 'the description contained in the patent, except the courses of the second and fourth lines. The survey lay on both sides of Fox run; crossed said run as described; and adjoined said Brashear’s land on the north.
    Under this patent, Helm claimed the land lying east of his first line, and as it was actually surveyed. The inferior court decided against him. He appealed.
    Allen, for the appellant.
    Whenever an instrument of writing shews, on the face of it, a mistake, and gives the means of correcting that mistake, it is valid, and the mistake will not injure it. So, if it refers to any other things or objects, and those objects point out the mistake, and its corrective, it is the same as if the face of deed did it.
    
      May 10th.
    
    The point here to be decided, is, therefore, whether there is enough in this case to shew that the call of the patent for the second line to run west, and the fourth to run east, be a mistake, and should be corrected by taking it as if the second line called for east, and the fourth for west.
    The call here, to adjoin Brashear on the north ; to begin at his north-west corner ; and to run the first line north ; will shew that the land must lie east of that line. Add to this, that the call to lie on both sides of Fox run, can only be complied with by this construction.
    The proof is also complete, that the survey was made, and the corner and line trees marked, where we claim the land. It is the survey that gives the right: the plat and certificate are but evidence of that right. There can be no doubt but we must hold the land whereon a survey was made, or we can hold none. The case of Morrison vs. CoghilVs legatees, spring term 1804 , is ⅞ case? the principle of which, is strong in point for me; though the mistake in that case was but in one call.
    Clay, for the appellee.
    If this were a case in which the patent would be sufficient, by rejecting any part as surplusage, I would not contend but that the fault might be overlooked. But this is a case of repugnance. You cannot run west from the first line, and cross Fox run ; you have nothing here to show, from the record, in which the mistake was committed: whether in the call for the run, or for the course. And wherever this is the case, it must destroy the entry or survey.
    
      The evidence of where the survey was made, will not help ; for a survey, without a patent obtained thereon, can give no right. We are not to decide what the surveyor intended, but what land the patent has appropriated. It surely cannot be considered as appropriating land that its calls will not cover. Here, take the patent, and protract its calls, and the plat will close, but will not include the land we claim. That was not the case in Morrison vs. CoghilVs legatees. The plat would not close in that case, if the calls of the patent were pursued ; and by reversing the calls in that patent, it would follow every line in the survey but one. Here, reverse the calls, and it will cover the same ground it does to pursue them as set down. There too, there was a call to run with the line of another; and the line of that other would correct the course called for, Here there is no call for the line of another person, to which we could resort;
    In the case of Bosworth vs. Maxwell (), the call “ to run south-west with Todd’s pre-emption,” which could not be complied with, as Todd’s pre-emption run nearly south-.east, the court seem to have adhered to the course, and disregarded the call “with Todd’s pre-emption.” It is true, Todd’s line was not marked, but only pointed out by the entry. This decision seems to me to have deviated from, or rather overruled the case relied upon by Mr. Allen.
    The appellant should take the land west of his beginning line, as it is called for by his patent; or, if that cannot be done, he should take his recourse to the surveyor who committed the mistake, and be compensated in damages for the injury which the blunder of the surveyor may have done him,
    
      May 11th.
    
    
      
       The plat in the caufe, lhewed th¡9 to be the north-weft corner of Bra&ear’s Land,
    
    
      
       Pr. Dec. 382.
    
    
      
      
        (a) Ante 205.
    
   Edwards, Ch. J.

delivered the opinion of the court.

The question is, whether the patent, under the circumstances stated in the agreed case, will enable the appellant to recover the land really surveyed for him, or not ? We are of opinion that it will. The surveyor has manifestly committed a mistake in protracting, or giving the courses of the second and fourth lines ; but the other Calls and descriptions contained in the patent, are sufficient to correct the mistake. By adhering to these two mistaken calls for course, we would disregard the lines and corners really made and proved ; the call to lie on lioth sides of Fox run; the ealls in the second ar.d fourth lines- for crossing Eox, runt and the call, for join-fog Brashear’s land on ⅛ north* So many natural and, visible objects called for, remove all doubt ón the subject. The case of Morrison vs. Coghill's legatees, in this court, Pr. Dec. 382,.is in pointand completelyde-cides the present question.--Judgment reversed.  