
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Perry v. Middleton.
    Parol evidence is admissible to shew the situation and boundaries of land, though different from, the patent.
    Motion to set aside the verdict, and enter a nonsuit.
    The case was tried in Lancaster district, before Grimke, J., in. November, 1804. The action was trespass to try titles to land. The declaration stated that the trespass was committed in a tract of three hundred and twenty-three acres of land, originally granted, to one John Hood. At the trial, the plaintiff produced and proved a conveyance from John Hood, the son and heir at law of John Hood, the patentee, for the whole land. He also proved that the said grantee died intestate, in the year 1799, leaving a widow, and two other children, besides the said John, the son.
    Upon this evidence the defendant moved that the plaintiff should be nonsuited, as by the act of distributions of the year 1791, immediately upon the death of J. Hood, the grantee, the land in question descended to his widow and children, in co-parcenary, and the son, John, became entitled thereupon, to an undivided third part of two thirds of the said land, or two ninths, and no more ,- and that as he could convey no more, his conveyance of the whole was either void, as being for more than he could rightfully convey, or it was good only pro tanto, or for such part as he could rightfully convey; and therefore that the evidence did not prove the title set forth in the declaration.
    The motion for a nonsuit being overruled, the defendant then gave in evidence a grant from the State to one Samuel Littlejohn, for four hundred and eighty acres of land, situate on Cedar Creek, waters of Broad river, the date of which grant was anterior to the date of Hood’s grant; and offered to prove that the land described in the grant to Littlejohn, included the land in question, and that the survey thereof was actually made of lands lying on Cedar Creek, waters of Wateree river, and not waters of Broad river, as erroneously expressed in the grant; but the court refused to admit evidence to contradict the grant, or to prove that the land described in the grant, lay on the waters of the Wateree river, when the grant clearly expresses that it lies on the waters of Broad river.
    The motion in this court was argued in November, 1804, before Waties, Bay, Trezevant, and Brevard, Js., who took time to Consider of their opinion. In April, 1805, the case was held under advisement, as Trezevant, J., was absent, sick.
    November, 27,1805 — all the judges present, thefollowing opinions were delivered : Trezevant, J., delivered the opinion of himself, Waties, and Bay, who agreed in the granting of a new trial. Bre-' Yard, and Wilds, Js., had been counsel in the cause, and, therefore gave no opinion. Grimke, J., absent.
   The opinion delivered by

Trezevant, J.,

was to the following effect.

That parol evidence was admissible, to shew the actual situation and boundaries of the land, though different from the patent. To shew by evidence dehors the patent, the true meaning of the same,1 That the place, or land, and lines, mentioned and described in the patent, and survey thereunto annexed, must, from necessity, in all cases, be located and identified by witnesses who are to testify in, court concerning the same; and as such evidence is, from the necessity of the case, in almost every case required, so in some cases the same necessity may exist, to allow of evidence which will show' that the description in the patent is incorrect, and that the land actually surveyed, as mentioned in the patent, and granted, lies in a different place, or that the lines, as described, run in a different direction. This kind of evidence is necessary to give effect to the, patent, and not to render it null, or impair it. Without the admission of such evidence the land actually granted could not be found, and the boundaries thereof ascertained.

Note. See 3 Bin. 109, S..P. accordant. 7 Johns. 341. 3 Caines, 169. Lessors of plaintiff’s tenants in com. Objection not such a demise as was sufficient. It is said the estates of ten. in com. are several and distinct, and that there is no privity between them. But the court said there was the requsite privity to support, a’common joint demise to transfer the possession without any circuity. In ejectment it is a mere fiction. The recovery will enure to each lessor, according to his title. Jackson ex dem. Tennis et. al. v. Bradt.  