
    Singleton vs. Whiteside’s lessee.
    
    A grant to A and B wa’a bounded as follows: Beginning opposite the mouth of the War Trace Fork, at a walnut and plane tree, thence west 894 poles to a white oak, thence south 894 poles to a stake, crossing Duck river, thence east 894 poles to a stake, thence north 894 poles to the beginning. ' The distance called in the second line, stopped 332 poles short of the river. In 1808, the grantees caused the land to be processioned. By this survey the second line was run and marked, and a corner made 300 poles short of the river; this line and corner was recognized and considered by the grantees as their corner until 1816 or 1818, after which time they claimed the second line to extend across Duck river. It was held, that the re-marking in 1808, was binding and conclusive, and the grantees were estopped from extending the second line across the river.
    This was an action of ejectment commenced in the circuit court of Bedford-county, on the 18th day of May, 1829, by the heirs of Jenkin Whiteside, dec’d. against Dolly Singleton, the tenant in possession. There are two demises laid in the declaration; one in the name of Thomas Whiteside, and the other in the joint names of the heirs of the said Jenkin Whiteside, deceased. At the appearance term, Newton and Robert Cannon were admitted co-defendants with the said Dolly Singleton. There was a joint plea of not guilty, and issue was taken thereon.
    There was a verdict for the plaintiff; in conformity with which, inclement was entered up, and an appeal m , V ° • r. ^ i r the nature oí a writ of error to this court, was prayed tor and granted.
    The plaintiffs below derived their title from a grant issued by the State of North Carolina to John Gray and Thomas Blount, dated 27th day of June, 1793; thence, by deed from John Gray and Thomas Blount to David Allison, bearing date on the 9th day of October, 1794; thence, by deed purporting to be from three of the heirs, and the administrator of the fourth heir, of David Allison, deceased, to Andrew Jackson, bearing date on the 3d day of August, 1812; thence, by deed from Robert Hays, Marshal of the district of West Tennessee, to John Oter-ton and Jenkin Whiteside, bearing date on the 13th day of July, 1802, and purporting to be made in pursuance of a sale made by him, as Marshal aforesaid, under an order of sale founded upon a decree of the court of the United States for West Tennessee, which deed recites, that at said sale Andrew Jackson became the highest bidder, and had given a written order to convey to Jenkin Whiteside and John Overton; thence, by deed from the sheriff of Bedford county to Thomas Whiteside, bearing date the 10th of November, 1828. To sustain said deeds, the plaintiff in the court below ' also produced in evidence, a record of a suit from the circuit court of Davidson county, between Jackson and Erwin and others against the representatives of Jenkin Whiteside, deceased, and also a copy of the record of a suit, from same court, between Jackson and Erwin and others against the heirs of Jenkin Whiteside, deceased; and they also produced a deed of partition between John Overton and Jenkin Whiteside, bearing date on the first day of May, 1807.
    The defendants claimed under a grant from the State of Tennessee to Robert and Clement Cannon, dated 14th day of June, 1828; the entry on which this grant was founded, was made after Whiteside had disclaimed holding under the survey of 1808.
    
      It appeared from the evidence in this cause, that in February, 1808, under the provisions oí an act then in force for that purpose, the principal surveyor of the district in which the said land lies, at the request of the said Jenkin Whiteside and John Overton, processioned the same, that is, the tract of five thousand acres aforesaid, granted as aforesaid to John Gray and Thomas Blount, and the title to which, derived as aforesaid, was, at the date of said processioning, in the said Overton and Whitside. That the aforesaid processioning survey was returned to the surveyor’s office, and there laid down on the General Plan; and afterwards, on the 9th of September, 1809, registered in the register’s office of Bedford county. That said processioning survey contained an excess beyond the quantity called for in the grant, of between seven and eight hundred acres-. That after said processioning, the said Jenkin Whiteside, (within whose portion, if in either, the land in dispute lies, according to the partition between him and Overton,) repeatedly recognized the lines of said processioning survey, as being the true bounds of his tract; pointed them out to others as his bounds; offered to sell to others according to them; and conformed to them in every respect as such, for eight or nine years after the date of said processioning; that after the lapse of that period, Jenkin Whiteside had put a tenant on some part of the disputed land, who, with others taking possession in a - similar way, had occupied some part of said disputed land, from thence forward for about the space of ten years; but, it did not appear that their leases extended beyond the limits of their actual occupancy.
    Disregarding the processioning survey, and including the whole land now contended by Overton and Whiteside to lie within the grant under which they claim, that is, the land in dispute, in addition to what was contained in the processioning survey, and they will get a surplus of about twenty-five hundred acres, over and above the quantity called for in the grant.
    The beginning of the grant is ascertained; it calls to run thence west 894 poles to a white oak; thence south 894 poles to a stake, (crossing the river;) thence east 894 poles to a stake; thence north 894 poles, crossing the south fork, to the beginning. The dispute here arises from the extension of the second line, or west boundary; greatly beyond the length of 894 poles, in order to reach the river, and the consequent extension of the fourth or closing line, to an equal length, in .order to preserve the shape of the tract, and reach the point of beginning.
    It appears from the evidence in the cause, that the first line of the tract, or northern boundary thereof, had been marked before the processioning survey. But the processioning surveyor extended that line somewhat beyond the distance called for, in order to include the usual surplus, and made the northwest corner. From this northwest corner, he ran south, making the second line or western boundary of the tract, and extended that line beyond the distance called for, proportionably to the first line; this line had not before been actually run or marked. From the end of this line, the processioning surveyor run the southern boundary, or third line, which had not been previously marked; and at the termination of that line, found a corner formerly made. Running thence north to the beginning, he found a line previously run. But the corner called for at the termination of the third line, is not the corner called for in the grant; the latter being a stake, and the former marked trees.
    The circuit judge charged the jury in substance, that Whiteside, although he caused the processioning survey to be made, and claimed according to it for eight or nine years, or, indeed, for any indefinite length of time, was at liberty afterwards, when he discovered his mistake, or that more land might have been included in the processioning survey, to renounce the boundaries as fixed by it, and to C^m UP t0 any °tber boundaries that the construction of the calls would have authorized to be included in the survey; provided, no adverse title to the land claimed beyond the limits of the processioning survey, had accrued in the mean time. He also charged the jury, that the calls, aforesaid, authorized the grantees so to have made their survey, as to go to Duck river as the termination of their second line. He likewise charged the jury, that if White-side, by his tenants, had been in possession of any part of the surplus beyond the processioning survey, for seven years after he renounced that survey, and before the commencement of this suit, that such-possession under the operation of the act of 1819, would give the plaintiff a good title, inasmuch as he claimed under a grant, and deeds founded thereon, which by a proper construction would have included, or purported to include, the land in controversy.
    
      T. Washington, for plaintiff in error.
    1. The circuit judge erred in charging the jury, that Whiteside, after causing the processioning survey to be made, and acquiescing under the same, was afterwards at liberty to renounce it, when he discovered chat more land might have been included, according to the construction of the calls of the grant under which he claimed.
    The object of processioning, or remarking, as it is sometimes called, is the settlement of boundary which was before doubtful; which, when once done, is final and obligatory upon the parties, and operates afterwards by way of estoppel. Davis’ lessee vs. Smith and Tarpley, 1 Yerger’s Rep. 499: Comyn’s Dig. Estoppel B: Houston’s lessee vs. Pillow and Thomas, I Yerger, 4S1: Clark’s lessee vs. M’Elhanie, (Ms.) Houston’s heirs vs. Matthews, 1 Yerger, 119, 120.
    According to the decision of the circuit judge, this processioning or agreement as to boundary, or settlement of boundary, is of no effect whatever, unless made according to its true original locality, or unless, being variant from the true original locality, the party prejudiced by it knows it to be so variant, and with that knowledge freely and voluntarily renounces the boundaries up to which he might otherwise have claimed.
    Such a doctrine would, in the first place, infringe upon the statute of frauds and perjuries, as. laid down in the case of Nichols vs. Ridley, decided at the present term. For, if the processioning survey could only be binding upon Whiteside, in case he knew at the time of making it that his grant included more land, and thought proper to relinquish the excess, what is that but saying that he might make a verbal donation of the excess to the State, and that it is upon the principle of donation, and no other, that these processions are valid.
    Again: there is another inconsistency between the principle of judge Mitchell’s doctrine, and the principle of the exception which he makes to it. He says, that if an adverse title to the surplus or portion omitted in the processioning survey, and which might have been included in it, originate before the disclaimer, that such adverse title will be good. But, how would it be good, if Whiteside is not to be confined to the j)rocessioning survey, in case that survey was founded in mistake? His mistake may have superinduced the mistake of the subsequent enterer; but then he has been guilty of no fraud, or intentional deception, and why should a simple mistake of .one man be made to redound to his prejudice, more than that of another, and especially when the author of the first mistake had the prior legal title to the property in dispute ? Judge Mitchell, in giving preference to the subsequent enterer under the circumstances stated, acts not upon the principles of a court of law, but assumes to act upon the principles of a court of equity; which latter principles, when correctly understood and applied, will not sustain his conclusion. By allowing Whiteside to claim beyond, the limits of the processioning survey, after he attained a correct knowledge of his rights, he goes upon the foundation that the right of property was in him ab initio, and that he had done no act to divest himself. Then, as between him and the subsequent enterer, the right of property would also be in him, and he must in some manner or other be divested, before the subsequent enterer could succeed to that right of property. A court of law is incompetent to divest title, under any circumstances, and a court of equity cannot, upon the mere ground of innocent mistake.
    The circuit court seems to have misapprehended en-' tirely the object of a processioning under the twenty-first section of the act of 1806, ch. 1. That object is the ascertainment of boundary, the position of which was before doubtful; it is not the acquisition of property by one party, which he did not before own, nor the relinquishment by the other, of property to which he had an indisputable title. It is the giving of fixed and precise locality to adjoining property respectively owned by both parties.
    Here, then, was a fair case for the settlement of boundary, by the mutual agreement of the parties interested, and the State acting by its agent, the surveyor, who was also the agent of Overton and Whiteside, (for he states that he made the processioning survey at their instance and request,) and the grantees made the adjustment and had it put upon record, and both parties conformed thereto, and by this settlement the grantees not only got all the land they ever paid for, but seven or eight hundred acres over and above.
    The radical error of the charge, consists in assuming that Whiteside’s limits, at the date of the processioning survey, were already coextensive with the surplus now claimed; that he was the only party to be affected by the processioning; that, by that proceeding, he might be an immense gainer, but could not possibly loose, unless he chose knowingly to incur a loss.
    
      These processions necessarily presuppose doubt and uncertainty as to the locality of the land. It is that which caused them to be instituted; it is that which is their life-giving and governing principle. But, according to judge Mitchell’s views on this subject, it is that which renders them of no obligatory forcé.
    But, even upon the principles laid down by the circuit court, Whiteside had not only notice, but knowledge; that the processioning survey did not include the land in dispute, which, according to the charge, it might legally have included, and with that knowledge he acquiesced. The procession was made not only with his privity, but at his request; and after it was made, it is in proof that he actually knew the bounds thereof. He saw the calls of the grant and of the entry, and in contemplation of law, (and in point of fact too, as respects him,) he knew of the legal construction which these calls would bear; and yet, being charged with a knowledge of the law, and having actual knowledge that the processioning survey had not come up to these calls, he acquiesced. What more can-be necessary?
    2. The charge was, that because there was a caÜ in the grant for crossing Duck river,-therefore the western boundary or second line might be extended beyond the distance called for south, to wit, 894 poles, until it crossed the river. Now, it will be recollected, that this second line was unmarked previously to the procession, or was, until that time, what is called an open line. The rule for the establishment of boundary in such cases, is laid down in 1 Haywood, 377, (Beatty’s case,) and is found to be, “that if course and distance are called for',- and there is no marked line or natural boundary, that course and distance must be pursued, and the line must terminate when that distance in the course called for is completed. But, if a course and distance be called for, and there be a marked line and corner variant from that course, which is proven to be the line made by the surveyor as a bounda- ™ then that marked line shall be pursued. This au-thonty is precisely applicable; course and distance are both called for, to govern the running of the second line, to wit, 894 poles south; which, according to the above authority, must be pursued. The same doctrine is held, in the same book, page 22, Bradford vs. Hill. It has also received the sanction of this court in a very late case. Houston vs. Pillow and Thomas, 1 Yerger’s Reports, 488, c. and 488, f. And in M’Nairy vs. High-tower, (2 Tennessee Reports, 304,) judge Overton lays down the law to be, “that when lines are actually marked, though varying from the course, then the course must be abandoned.” The rules respecting the relative dignity and importance of calls in an entry or survey, have grown out of the necessity of establishing some certain data, by which to ascertain the locality of appropriated land, and out of that consideration of expediency, which dictates that a thing done, shall have effect rather than perish. All the cases wherein it is said that calls for natural objects must control calls for course and distance, are cases of dispute about boundary, where the natural objects called for, are identified as being the corners or lines of a survey actually made. And there is certainly an evident difference between the propriety of supporting such calls, in such cases, and in those where they are to be sustained, not for the purpose of giving identity to a tract of land actually laid off, and which must otherwise be lost, but to enable a claimant so to appropriate a tract in future, as to embrace those calls, and disregard the more certain and unerring ones of course and distance.
    Again: The charge assumes that whenever a natural object is called for in any particular part of a tract, that such call is a predominant one, and that all calls for artificial objects are subordinate ones, and must yield to the former. The objection to this doctrine is the unqualified extent to which it is advanced by the circuit judge, and particularly m reference to the grant under consideration. T . . , 1, , 1 ? . 1 11 , 1 . 1 maintain that although the principle alluded to is generally correct, yet that it is not universally so; and that the application of it must depend upon the connexion in which such call for a natural object is used, and upon the aggregate of the other calls, whether for natural or artificial objects, or both together. It is evident that the call in the secondline of this grant, of 894 poles south to a stake, crossing Duck river, has, according to the construction given to it by the circuit judge, determined this cause in the court below; and that without a compliance with that call, agreeably to the instructions given to the jury, the land claimed by the defendants would not have been interfered with.
    “Thence south, 894 poles to a stake, crossing the river.” Does the surveyor here mean that he crossed the river before, or at, the termination of the distance? He means, undoubtedly, that he crossed it before the termination of the distance. If he meant that he had crossed it at the termination of the distance, he would, from the notoriety of such an object, have fixed his corner upon the bank of the river. Yet, we discover from the connexion in which the call for crossing the river occurs, that he had already fixed his corner at a stake, at the distance of 894 poles south, from the end of the first line; and that then, after the whole first line is complete, and the comer is complete, and the corner established, he says, “crossing the river,” evidently meaning, that he had previously crossed it in arriving at the true pojnt of distance, where, for want of some natural objects of a notorious and permanent character which to designate as a corner, he had put down a stake, or artificial object, of a most perishable nature, to be sure, but his only resource in the absence of a natural object.
    In this view of the subject, therefore, the call for crossing the river is a general descriptive call, and not a special call for boundary. And the rule is well settled, that calls of the former kind, which always relate to some natural object, must yield to special calls of boundary, even although these latter may consist of artificial objects. This very grant affords an example illustrative of this position, for it calls to lie on both sides of the main forks of Duck river; and yet, as laid off, whether according to the procession, or as including the land in dispute, it does not touch either fork, but only the main stream below the junction. Now, if calls for natural objects are, according to the opinion of the circuit judge, of such.surpassiug importance and magnitude that they never can be dispensed with, how does it happen that, in this very case, the call to lay on both sides of the two main forks of Duck river, two very imposing natural objects, was entirely disregarded? Simply, because that is a general descriptive call, and not a special call of boundary; and so is the call for “crossing the river,” in the second line of the survey, or at least it is an incidental call. So, also, in the last line of the grant, there is a call of 894 poles, crossing the south fork, to the beginning. And yet the south fork is not touched in either mode of making the' survey, and is left out of view altogether, and the survey considered'good without any regard to it. But if the call for crossing the river in the second line, makes the river the termination of that line, so ought the call for crossing the south fork in the last line, to make the south fork the termination of that line. And thus the beginning,, which is an artificial call, never would be-reached, or some arbitrary mode of making the survey must be adopted in order to reach the south fork, and then to run whatever course and distance would conduct to the beginning, without regard to any calls, and to the prejudice of adjacent claims.
    That the call for crossing the river in the second line, is not a special call of boundary, but merely descriptive of the general locality of the land on both sides of the river, when run out according to the distance of 894 poles, is further apparent from the fact, that this line was not actually measured and marked originally, and that, therefore, it was a mere conjecture of the surveyor, that that line, when extended to the distance of 894 poles, would cross the river at some intermediate point.
    It also depends, as will be seen by reference to the grant and to the plat, upon the punctuation to be given, what would be the proper collocation of the words “crossing the river,” in the description of the boundaries of this tract; and that, when punctuated in one way, the call in question might be affixed to the third line instead of the second; and that, if so punctuated, the call would be literally complied with, either by making the survey according to the procession, or in the other mode; and that it could be so punctuated without any violation of the rules applicable to that subject, or of the sense of the phrasology.
    The want of correspondence between the distance called for, as the length of the second liné, and the object in question, to wit, the river, in the case of an open line, ■ affords the most conclusive proof of the inferiority of such a call. Now, had this natural object been actually designated as a corner, although disagreeing with course and distance, it would be proof positive, that it denoted the identical land which the party had really appropriated, and it would be proof equally strong, that he has made a mistake as to course and distance; and therefore the call for the natural object would countervail .that for course and distance. But where there was no actual designation of the natural object, nor any admeasurement of the distance, either pursuing the course or otherwise, there is nothing on which to ground the. hypothesis of mistake as to the course and distance; nothing to create a reason why course and distance should be disregarded; nothing to sustain which would authorize a construction, and nothing which should prevent an adherence to the true boundaries.
    
      US SUPP0se ^ Ca^S 3 grant> excePt one) t0 be artificial calls, and the land to have been surveyed according to the artificial calls, disregarding the natural one, and that to make a resurvey complying with the natural call, would materially alter the shape, position and size of the tract. Now, in such a case, as between the grantee and the State, or as between the grantee and an adjoining claimant, which would govern, all the artificial calls taken together, being fully capable of identification, or the one natural call, which, before the making of the survey, was merely a potential corner, hut which after-wards ceased even to retain that character? It seems to me that common sense would decide at once, that the survey should stand as made, which would give to the artificial calls combined, a preponderance against the natural one, and would prove that a natural object called for, does not, according to the idea of Judge Mitchell, in all cases and under all circumstances, and although “spoken into existence by the mighty fiat of a great First Cause,” predominate over artificial objects, however numerous, imposing or forcible, and notwithstanding they are but the insignificant handiwork of man. Now, that is precisely this case, even upon the supposition that the call for crossing the river is a special one, and not a general descriptive call, as I have already attempted to establish. Every call in this grant, but one, is an artificial one; and the only survey that has'ever been made by public authority, conformed to the artificial calls, throwing out the natural call. And at this late day, after an acquiescence of many years, and without any resurvey, except a private one, the grantees claim to set at naught every thing that has been done, according to the most solemn forms of law, and thereby undertake to gain to themselves an excess of 2500 acres of land over and above what they paid for,' and the circuit judge sustained them in this impudent, unconscionable, and exorbitant pretension!
    A call for a natural object as a corner, which would control artificial ones, must be repugnant to them, and must be definite, not only as to the object itself, but as to its^being intended as a corner. So likewise, a call for a natural object as a corner, which would authorize going beyond the distance, must be so specific as that, if arrived at short of the distance, would stop the claimant at it. The rule works both ways; and the same distinctness in the call is equally necessary, whether its operation is to occasion a gain or a loss. Now, let us suppose the calls in the second line of this grant to be the same that they are, and that the river, instead of being beyond the distance of 894 poles, had been found 500 poles short of it. Would the grantee, in the case supposed, have been compelled to lose more than half his land on account of the insuperable influence of the call in question? I think not. He could say with truth, that the call for “crossing the river” does not necessarily imply that the corner is to be at the river; that the corner is designated as a stake, at the termination of 894 poles; and that the river is merely enumerated as one of the objects in the line. And so also, in the case under consideration, it may be said, that the crossing of the river, although called for, is not spoken of as a corner; that the corner is consummated without it; and that the introduction of the expression relating to the river, was merely descriptive of an object supposed to be contained in the line, before it reached its termination, at the corner; but, whether really existing there or not, was merely incidental, and could not affect the corner actually made. So that the whole confusion on this subject, which has produced a misapplication, by the circuit judge, of an important and well settled principle, has arisen from not accurately discriminating between a call for a natural object as a corner, and for a similar object as part of a line. There is no essential difference between the expressions, “thence south 894 poles tó a stake, crossing the river,” and “thence south, crossing the river, 894 poles to a stake;” and yet, there must be the most evident difference imaginable, if the one , ° . , necessarily carries us to the river, wherever it may be, and the other confines us to the stake or termination of the distance, regardless of the nearer or more remote position of the river. This difference of import in these two expressions, important as it is in reference to this case, and unfounded as it is both in common parlance and in point of law, is fairly attributable to the charge delivered by the circuit judge, whose error in this respect proceeded from not duly attending to the distinction between calls for objects as corners, and calls for objects as constituting part of a line, and to the necessity in the former case, of a repugnancy between-the natural objects called for as a comer, and the call of distance; whereas, in the latter case, if a particular object called for in the line, no-matter of what nature or magnitude, occurs, whether at one interval or another, there is no inconsistency between that call and the call for a marked corner at the termination of the distance. And if any object, whether natural or artificial, so called for as part of the line, be not within the line at all, but is found beyond it, and the other parts of the line are perfect and' capable of being traced, and especially the corner, the call for the object so found out of the line and beyond the distance, must be rejected as surplusage, and the residue preserved.
    The call in question, for “crossing the river,” in the connexion in which it occurs, is too vague to give it any consequence, much less to give it so fundamental a character as to control the whole survey. What river it is that is to be crossed, is not mentioned; nor is it inferable from the other parts of the grant, that Duck river was meant. The only reference contained in ,the whole grant, to any river, is that which is found in the locative call, to wit, that the tract is to lie on both sides of the two main forks of Duck river. Now, if the meaning of the call for “crossing the river,” is to be ascertained by recourse to the above general locative call, “of lying on both sides of the two main forks,” which of these forks is it, I would ask, that is to be crossed,- or is it either, in complying with the call in controversy? When we advert to the survey as made, either by the procession, or as now claimed by Whiteside, we shall discover that no part of the land lies on either side of the main forks of Duck river. Then, the river to be crossed, is simply the river; than which, nothing could be more indefinite. And this is said to be a special call for a natural object, which is to control the whole survey; when it is obvious,,upon the face of the grant, that without the aid and support of the preceding and secondary artificial calls, this call would signify nothing, would suit one place as well as another, and when isolated, would be just as vague as a reference to a tree in the forest of North America, or 10 a grain of sand in the great desert of Sahara.
    Lastly: As respects the limits of this grant, the circuit judge, instead of charging the jury that the third line should be ruit at right angles with the second as long as the first line, ought in conformity with the principles laid down in McNairy vs. Hightower, (2 Tenn. 302,) which has never been overruled, to have instructed them, that after running the third line the distance called for, as none but the first line was actually marked originally, and was too long, a diagonal line should have been run to the beginning; in which case, even if the second line be permitted to extend across the river, the land in dispute, or but a small portion thereof, would have been included.
    
      J. P. Clarke, for defendants in error.
    1. The opinion and charge of the court to the jury, upon the subject of boundary, is correct, and is in exact accordance with the settled law of North Carolina and this state. Whenever the original corners or lines can be found, they must prevail. 1 Hay. Rep. 237-8, 258,496: 2 Tenn. Rep. 154, 200 and 302; Cooke’s Rep. 462, 146: Peck’s R. J4g. The principles laid down m these cases have been recognized and acted on by the supreme court ol the United States. M’Intyre vs. Walker, 4 Wheaton’s R. 445: Newsom vs. Pryor, 7 Wheaton’s Rep. 5.
    2. The opinion of the circuit judge, upon the effect of the processioning or resurvey in 1808, is also correct. The parties, it is true, by admitting their boundary to be the- lines as- marked by this survey, would he estopped from claiming beyond- them, where third persons had become interested in the land upon- the faith of their admissions as to the boundary; but the evidence in this case shows that they always claimed beyond the processioning lines, and had for years tenants .upon that part of the land between the corner marked upon the second line and the river, before the entries of the plaintiffs in error were made.
    The doctrine of remarking is bottomed upon the presumption that old lines and corners were marked, which time, accident or other cause had destroyed, and the resurvey was merely marking anew the old lines and corners. Williams vs. Buchanan, 2 Tenn. Rep. 283, 285: Norris’ lessee vs. Garner & Dickson, 1 Yerger’s Rep. 62.
    In this case, the presumption is destroyed by the evidence. The remarking or survey of 1808, was founded in mistake. The corner made at the termination of the second line was supposed to be the- trae one; but in fact, from the call in the grant, that corner could not have been made before crossing the river.
   Catron, Ch. J.

delivered the opinion of the court,

The grant, to fix the boundary of which produced this suit, was made in 1793 to J. G. and Thomas Blount, for 500Q acres in the middle district, on both sides of Duck river, beginning opposite the mouth of the War Trace fork, at a walnut and plum tree, running west 894 poles to a white oak; thence south 894 poles to a stake, crossing Duck river; thence east 894 poles to a stake; and thence north 894 poles, crossing the south fork, to the beginning.

The second call, south to a stake, crossing Duck river, produced the controversy. The distance called for (894 poles,) stops 332 poles short of the river. To this Whiteside claims to go. To resist this assumption, the defendant relies upon processioning lines marked for the 5000 acre tract in 1808; and mainly upon the fact of the remarking, depends the cause. On the opening of the Duck and Elk river country, the 5000 acre grant belonged to John Overton and Jenkin Whiteside. In February 1808, they caused it to be processioned by Malcolm ■Gilchrist, a deputy surveyor of the second district, in . conformity to the 21st section of the land law-of 1806. This survey was made with uncommon particularity. The first comer at the mouth of the War Trace fork, of course was found; then running west, the white oak comer was found. But this was all the marking, save some poles west from the beginning, a marked line was found. Gilchrist run south, marked the western boundary plainly, and made the south-west corner upwards of 300 poles short of Duck river; then run east, and marked the southern side of the tract, and made the south-east corner; then north to the beginning, marking the east side. This done, he proceeded to partition the tract between Over-ton and Whiteside, according to a covenant to divide between them, and by their instructions. The tract was laid off into four lots, partition deeds made, and these and the processioning survey registered.

The boundary seemed to be settled, and was recognized as the true one by Whiteside and Overton, until some time about 1816 or 1818, when Mr. Whiteside claimed the second line to run across Duck river, on the call in the grant, south S94 poles to a stake, crossing Duck river. In the survey Gilchrist made, there is a surplus of 727 acres, over the five thousand, and to extend the line to the 30uth bank of Duck river, would add 1827 acres more, making the grant contain 7554 acres. These facts have been stated to show that the present case forms no exception to the universal truth, that where the grantee or owner makes newlines for himself, none having been originally marked in fact, he is sure to include as many acres as the grant calls for. So far as my knowledge of remarking, or rather marking of lines for granted lands, extends, I have not known, or have I ever heard, of any claimant laying off to himself too few acres. This is not stated as a reproach, but as a fact, on which are based important considerations in fixing the general rule, that where the state fails to have marked the boundaries of a grant, the grantee may do it for himself, conforming reasonably to the calls; and the state is estopped-to deny the correctness of the boundary thus fixed; the lines made standing on the foot of agreement between the state and the grantee. The state being bound by the agreement, of course the grantee is equally bound, estoppel being reciprocal. Com. D. Estoppel B.

The imposing necessity of the re-marking doctrine, and the wisdom of a rigid adherence to it, is more manifestly apparent from this case, than it has been from any other that has come before this court. The Duck and Elk river country was surveyed and granted in opposition to the wishes of the Cherokees; it was mainly productive of Indian hostilities for many years. The consequence was, that the lands generally were not surveyed in fact, but some times one corner, some times two made; and hardly in a single instance more done, than to run a straight forward line, and make locations on each side of it, as was obviously the case in the present instance. Often, however, the surveyor in the most concealed manner could only mark a single corner at a notorious place, or call for the fork of a stream, or the like, and make many locations binding on each other, resting for identity on the same corner. The grants conformed, although no survey in fact ever had been made.

To lands thus situated, the owner, about 1808 caused the lines and corners to be marked. •- The country was covered with a cane-brake; such a thing as running a straight line, or obtaining accurate measure', was .hardly possible, and not expected. The presumption was, the grantee or owner would at least do even-handed justice-to himself, and if there was a mistake the State should suffer. As a protection, by the 21st section of the act of 1806, she provided her own sworn officer shoul.d procession. On processioning surveys depends the boundaries, with few exceptions, of all the old grants in 'a large section of the country. The object of the legislature ' was to substitute the new survey for the one that ought to have been made before the grant issued. The policy was not only wise, but of imperious necessity; and the necessity of forcing the claimants to adhere to thes’e surveys as if made before the grants issued, is great. . Suppose we permit the grantee to say, “I was twenty five years since mistaken; I have found and can prove my true corner, originally made for my land, before the grant issued, and to which it refers; it stands an hundred poles east of my proces- . sioned corner, and twenty north.” He at pleasure abandons the-lines made in 1808, and goes to the old corner. The next tracts east and south, call to begin at his southeast corner; others again depend on these, forming a connection. Of course, all must change place. The act of limitations cannot help the case. Could any imaginary evil be more fearful? The country is densely populated for its age. Tl?i‘; sliding of grants would sWeep the foundation of titles from under whole neighborhoods. The graveyard, (as in Davis vs. Smith and Tarpley,) the house, the barn and the orchard, enjoyed for twenty-five years, swept away in a day by the discovery of the old and true corner. This is not a mere fancy; jt:is a sorry picture ’ of what the reality must be, consequent upon the recognition of the doctrine, that the boundaries made in 1808, may be abandoned by the now claimants. If you can go to the old corner, why not abandon the lines made in 1808 based upon the marked beginning, and go to mathematical and horizontal admeasurement? It can be assumed for a certainty, that not one precisely accurate survey of a large tract, or even a small one, has been made through a cane-brake, where ridges were passed over at one side, and none at the other: and if now the marks could be abandoned, and strict course and measure be applied, hardly an owner of land could hope to escape unhurt. The thing dare not be thought of; the very idea is pernicious, because calculated to stir up avarice and cupidity for speculation upon mistakes, real or supposed. With the present privilege of entering lands in the county offices for the fees only, the prowling sharper would enter and compel his neighbor to buy his own house, fearing the uncertainty of the compass and chain, of which he was ignorant. Men rely on their corners and lines; all the family know the marks; what is within them they feel to be theirs; it is the feeling of home; if not the most, one of the most virtuous and consolatory that falls to the lot of man. To permit it to be disturbed by threatened invasion from any and every quarter, would be as cruel as it would be unwise, and must not be. As before remarked, no instance is known where actual injury has been done the grantee by fixing boundaries pursuant to the act of 1806; and therefore, on the score of even-handed justice, as between the State and the grantee, no reason exists why the latter should not be estopped to disaffirm his boundaries thus made. That the State is bound we have often holden. In Williamson’s heirs against Buchanan, (2 Ten. Rep. 283,) the first case, the court sustained the old grant on the assumption that the new marks must be presumed to have been made where old ones had been, but viere lost by time. Hence the term “re-marking.” This was in 1814. But when the true corner was found, oi course the presumption was rebutted.

In 1818, at Sparta, the case of Clark’s lessee vs. M’-Elhanie presented this aspect. Clark called to begin about a mile west of the mouth of the Calf Killer at a black oak. The tree was not found. The six hundred and forty acres were run out and marked beginning one mile west. M’Elha-nie entered two hundred acres on the western side of the new survey. Then the comer was found, standing west of the mile point. To run out from this the six hundred and forty, included M’Elhanie. It was a most striking case, where there was good faith on either side. New enterers after the corner was found, attempting to press Clark west, and M’Elhanie holding him to his processioning lines. Whether the survey had been made in strict conformity to the act of 1806, I do not now recollect; though I know Major Taylor, the regular surveyor, made it, and at Mr. Clark’s request, and that the lines were notoriously claimed by Clark as his until the corner was found. Clark had a verdict below. The Supreme Court reversed it, Haywood delivering the opinion; in which it was assumed, I imagine for the first time in the State, that Clark could not disaffirm his survey and go to the old corner to the prejudice of M’Elhanie; that the State was clearly bound by the new marked lines, they being in reasonable conformity to the grant; that the State being bound, of course the other party to the contract, the grantee, was equally bound, on the foot of estoppel. The position brought the doctrine within a maxim, and was conclusive. It was well settled, the State in such case would be bound. From this decision the idea was taken of incorporating the principle in the land law of 1819, authorizing new surveys, and making them conclusive. This court, in M’Lemore and others against Brown, maintained the binding force of the law; holding, that when the grantee made his new survey, and claimed to it, though the old corners were found, he could not be disturbed by a new enterer, and of course was estopped to claim the old corners; that he or the State could not blow hot at one time and cold at another, as was the expression of Judge Haywood, in Clark vs. M’Elhanie. I decided the cause to this effect in the chancery court at Jackson, and Judge Peck, with Judge Turley as special Judge, affirmed the decree. Neither of the above decisions have been reported. The circuit judges had before them the reported case of Williamson vs. Buchanan, and Davis vs. Smith and Tarpley, in which it is declared, that it should be presumed the recent line marks were a renewal of the old ones: resting the doctrine on such a presumption. Of course, when the old lines and corners were found, as in M’Elhanie’s and M’Lemore’s cases, the presumption was rebutted and destroyed.' So the circuit court charged in Davis vs. Smith and Tarpley, (1 Yerg. Rep. 498,) and the jury found the old corner the true boundary. This court in 1831 reversed the judgment, and declared the grantee and the State estopped to disaf-firm the new lines. The cause before the court was decided below in 1830, and of course without a knowledge of the leading adjudications on this subject. The charge was wrong; the judgment will be reversed, and the cause remanded for another trial, when the jury will be charged according to this opinion.

Judgment reversed. 
      
      
         Absent, Whyte, J.
     