
    
      Samuel Harris ads. Nancy Eubanks et al.
    
    1. Trespass to try title. The plaintiffs and those under Whom they claimed had been in possession of the land in dispute from'1806 to the time of the trial, a period of thirty-six years. This fact, with even a doubtful description of it in the plaintiff’s deeds, was sufficient to justify the Judge who tried the cause in saying to the jury that, under a fair construction of the plaintiff’s deeds, they covered the land in dispute.
    2. A will thirty-eight years old, found in the proper office, and under which there had been a possession of thirty-six years, was held admissible in evidence as an ancient paper, without further proof. (1.)
    3. Where the defendant offered evidence to prove an agreement with a previous owner of the land and himself, as to a disputed line, which agreement, if any existed, was a part of his title, but it appeared that it had been reduced to writing; the evidence was held inadmissisible, the written agreement not being produced or accounted for.
    4. On a doubtful question of location, the declarations of the party who conveyed to defendant, going to show the establishment, by compromise, of a disputed corner between previous owners, may be considered by the jury as proof of it, so far as they consider them entitled to weight.
    5. The defendant, commencing at a corner undisputed and common to the grants under which both he and tire plaintiff respectively claimed, succeeded in establishing the lines, by marked trees, as far as a station on the line parallel to that on which he commenced. Here they failed, the plat calling for a corner consistent with the course, but beyond the distance in the defendant’s plat, and marked for both his and defendant’s surveys. This corner being established by the verdict of the jury, was held, to fix the termimm of this line. The line between the comer established, and that at which the location of the defendant’s grant was commenced, having been left open in the surveys under both grants, except a small space in defendant’s survey, it was held, must be closed, without regard to the shape or course of the plat. Where a junior calls for a senior grant, as a boundary, the latter is entitled to be first located.
    
      (1.) Shaller vs. Brand, 6 Binney, 435; Doe an the demise of Oldham vs. Walley, 15 E. C. L. R., 150, (8 B. & C., 22;) Fetherly vs. Wagoner, 11 Wendell’s Rep., 519.
    
      
      Before O’Neall, J., at Union, November, Extra Term, 1842.
    This was an action of trespass to try titles to the land lying east of Cane creek and north of the line B, A. The angle E, B, A, was the dispute.
    The plaintiffs claimed under a grant to James Hall, of the 3d of April, 1786, and deduced title from him to Nathan Sandridge; his will, dated 9th of March, 1800, but recorded in the Ordinary’s office 5th of April, 1819, was proved before Salter, a justice of the peace, in 1804. Nathan Sandridge died between 1800'and 1804; devised the land to his son Moses. It was admitted in evidence on these facts, and proof of possession for more than 20 years, in persons deriving title from Moses Sandridge. Moses Sandridge in 1805 conveyed to John Boyd 50 acres of the land, beginning at a red oak, thence by a black oák on Prewett’s line to the hickory corner B, thence up Cane creek to John Boyd’s line, thence on Boyd’s line to the beginning corner. John Boyd, in July, 1815, conveyed the same land to Nathan Cooper; Nathan Cooper in 1835 conveyed to Matthew Boyd; and he to Elisha Eubanks, the ancestor of the plaintiffs, who are his widow and children. Those grantors, beginning at John Boyd, were proved to have been in possession from 1805. The trespass at T was admitted. The defendant claimed the tract A, D, C, B, or E, as the true locations might be. It was granted 3d October, 1785, to James Hall. There was, however, but three days difference in the surveys. In this grant Bernard Glenn was the surveyor, and in the other D. Hopkins. In 1786 James Hall conveyed to Richard Prewett; he in 1808 conveyed to Agnes Prewett; she in 1819 conveyed to the defendant. The question seemed, throughout the trial and until the defendant’s counsel was arguing the case to the jury, to be, what was the true location of the defendant’s junior grants He then took the ground that the plantiff’s deeds, beginning at Moses Sandridge, to John Boyd, did not cover the land. Beginning at A and running to D C, the marked trees were found and established. On the line C, B, or E, no marked tree was found, after a hickory station near the creek, which is marked on the plat, until the hickory corner at B was found. The great question in the case was, whether that was the corner of the defendant’s grant 1 If it was, then the plantiff’s grant, calling for the same corner tree and this grant as its boundary, would cover the land. The defendant’s grant is in figure a parallelogram. The line A D, the parallel to the line C, B, or E, exceeds greatly the distance laid down in the plat; give the line from C the same distance, and it would go to E ; but give it its plat distance from C, and it would stop much short of the hickory corner B. Start at A and run the course, and give the distance of D, C, and you will arrive at E; give the plat distance, and you will-stop short of E. On the line A, B, are marked trees, (line trees,) but not as old as the surveys under the Hall grant; they were marked by the parties owning the land more than 40 years ago. The plats of both the grants to Hall represent the hickory corner as standing on the east side of Cane creek. The hickory B. corresponds, in that respect, with the grant. It was cut out, and the growths corresponded with the dates of the Hall surveys.. It.appears that, on the closing line from the hickory, one other tree, a short distance from it, is noticed, in the plats of both grants to Hall, as marked; the balance of that line was left open. In 1815, Esq. McGraw saw the hickory; it had then, he said, two corners upon it — one for the plaintiff, one for the defendant. Agnes Prewett, the then owner of the land, accompanied him and John P. Salter, the surveyor, on the survey for herself, to that corner. When they reached it, she said it was the true corner, and gave this account : She said Bernard Glenn, who made the first survey for Hall, ran from the hickory to the tree marked on his plat, and left the rest of the line open ; that there was always a difficulty where it ran, until her father, Richard Prewett, and her uncle, Nathan Sandridge, agreed to settle it, and, as it was expensive to get a surveyor, they placed a lad at the corner A with a trumpet, which he blew, standing at that point; they started at the hickory, and, following the sound, blazed the line, which was thence called “ the trumpet line.” From that time (1815) down to the present, McGraw said, he had regarded the hickory as the true corner, and the trumpet line the true line between the parties. By this witness the defendant proposed to prove that he and Cooper, one of the owners of the land, liad altered this line; but whatever was done between them was, he said, in writing, and as that was not produced, he was not allowed to speak of its contents, but he was permitted to tell what the parties (Cooper and Harris) said. He said that they both said “they had settled the old broil,” meaning the dispute about this corner and line ; but, he said, they did not say they had altered the line. John Slcain and William Simonson proved that Agnes Prewett, after she sold to the defendant, in his presence showed the hickory corner as the true corner, and as that to which she had sold. She said that, at the instance of her father and uncle, Daniel Malone closed the line, by marking from the hickory B to the red oak A, her brother Bird standing at this last and blowing the trumpet.
    
      
      
    
    
      Richard Thomson, Esq., proved that, 8 or 10 years ago, he was called by the defendant to survey the land; he ran to the hickory B, and found it a double marked corner for both of Hall’s surveys; when chopped out it corresponded in age with them. Bob’s branch, he said, was not laid down in Hall’s first survey, (the defendant’s;) it was in the second, (the plaintiff’s.) To go to E it ought to have been represented in the defendant's original plat. He told the defendant the corner B was his true corner, and, because he would not go beyond it, the defendant dismissed him.
    In the defence, two of the defendant’s sons, Elijah and James, swore that the hickory on its south side was unmarked ; on its east side it had two chops. They had known the tree for 20 years. They said that, on some occasion, the mother of Agnes Prewett (Fanny Prewett) was at the hickory, and said it was not the corner, it was further up the creek. They said Daniel Tollison, their grandfather, who is now dead, laid his hand upon the hickory, and said he would swear that he made the first mark upon it which ever was made, when he marked it for some other survey. William Malone proved, that 40 years ago he saw the hickory corner, but his recollection was that it was above Bob’s branch.
    The case was submitted to the jury by carefully explaining the rules of location, and applying the testimony under them.
    His Honor told the jury that, on a fair construction of the plaintiffs’s deeds, he thought they covered the land in dispute.
    In speaking of course and distance as a rule of location applied to this case, the jury .were told that, looking to it alone, and unaided by other circumstances, they could not give the line C, B, or E the increase found on its parallel A, D, but they would have to start from the corner C, and run the distance and stop; or, in the most favorable point of view for the defendant, they might run to the hickory station found on the creek, then ascertain the distance, by the plat, from it to the corner, and run that distance. Either would fall short of the hickory corner.
    The presiding Judge said to the jury that the whole case turned upon the fact whether the hickory B was the corner of both grants. If it was, then the plaintiff was entitled to recover; otherwise not. He referred them to the proof; and said to them that the declarations of Agnes Prewett might be considered by them in coming to their conclusion. For, if she knew that it was the true corner, then her declarations, like those of any other party in interest, would have their appropriate weight with the jury in deciding on the fact. But if she was mistaken, or did not know that it was the comer, her declarations ought to have no weight.
    The jury found for the plaintiffs. The defendant appealed, on the annexed grounds.
    1st. Because the Court erred in charging the jury that plaintiffs’s paper title covered the land in dispute, when there was no proof, either by the surveyors or others, on this point. i
    
      2d. Because tlie Court permitted the plaintiffs to give in evidence the will of Nathan Sandridge, without proof of its execution, when it was only recorded in 1819, in the Ordinary’s office.
    3d. Because the Court erred in charging the jury, that to locate the land by course and distance, they must stop at the hickory corner B, contended for by plaintiffs; and that that rule of location would defeat the defendant.
    4th. Because the Court erred in charging the acts and declarations of Agnes Prewett might authorize the jury to find a verdict for the location contended for by the plaintiffs.
    5th. Because the Court erred in rejecting the evidence offered as to the agreement between Cooper, the then owner of the land claimed by plaintiffs, and the defendant, to establish a different line from the one now claimed by plaintiffs ; and also because the Court refused to receive the declarations of Cooper, made after the said agreement, as to the said new line.
    6th. Because the plaintiffs’s grant does not cover the land in dispute by any correct rule of location, and the only true location is that contended for by the defendant, as represented by his plat, his grant being the oldest.
    7th. Because the verdict is contrary to law and evidence.
    Herndon, for motion. Thomson and Bowers, contra.
   Curia, per

O’Neall, J.

This case was so much and so zealously pressed upon the Court, that it is, perhaps, necessary that it should receive a little more consideration than it would otherwise require. The different grounds will be, therefore, examined as particularly as possible.

1. The first ground imputes to the circuit court error in charging that the plaintiffs’s paper title covered the land in dispute. By this is to be understood that the plaintiffs’s deeds, commencing at that from Moses Sandridge to John Boyd, do not (as the defendant supposes) cover it; for, up to that link in the chain of title, the whole tract, as originally granted to Hall, was conveyed. It would be a sufficient answer to this ground to say, that this was the opinion of the Judge below on the facts of the case, and would not necessarily constitute a ground of new trial. But I am not disposed thus to evade it. The deed from Moses Sandridge to John Boyd is dated the 25th of October, 1806. From that time to the trial, (thirty-six years,) he and those claiming under him have been in possession of the land lying east of Cane creek and north of the line found by the jury. During all that time they have claimed to that line. These facts, connected with even a doubtful description in the plaintiffs’s deeds, would have been enough to have justified the Judge in saying to the jury that he thought, on a fair construction, the plaintiffs’s deeds covered the land in dispute. Independent, however, of all aid outside of the description contained in the deeds themselves, it may be demonstrated that they cover the land.

The deeds from Cooper to Matthew Boyd, and from Matthew Boyd to the ancestor of the plaintiffs, describe the land conveyed thus: “ Beginning at an oak, and running to a black oak, original corner of Hall’s grant; from thence to a hickory on Cane creek, original corner; from thence, up the channel of said creek, to the original line of said grant; from thence to the beginning.” Cooper’s deed was executed in ’35, and Matthew Boyd’s in ’38. No one, looking at the plat, will have any difficulty about locating them. The beginning corner is the oak at F; thence to the red oak (which is often called a black oak) at A, the corner of both of Hall’s grants; thence to B, the hickory, also the corner of the same grants; thence up the creek to the original line at G; thence to F, the beginning corner. The lines thus traced include all the land claimed by the plaintiffs. Do the deeds from Sandridge to John Boyd, and from John Boyd to Cooper, cover the same land? The description given in them is: “ Beginning corner on a red oak; thence to a black oak on Prewett’s line; running on said line to a hickory corner on Cane creek; thence up said creek to said John Boyd’s line; thence on said Boyd’s line to the beginning.” Recur, again, to the plat; where is the red oak at which we are to begin 1 Aided by what we' clearly know, we have no difficulty in fixing on the red oak at F ; thence we are to reach a black oak on Prewett’s line. The red oak at A (indifferently called a black oak) was, at the execution of the deed, the corner of Prewett’s land, and the head of the line A, B, which was Prewett’s line, as then understood. For Agnes Prewett was then the owner of the defendant’s land, and claimed that as her line. Putting these facts together, the line from F to A may be regarded as the line intended by the deed; thence on said line to a hickory on Cane creek; following Prewett’s line, we reach the hickory B; thence the deed directs us up Cane creek to John Boyd’s line, which is understood to be the exterior line of the Hall grant at G ; thence on said Boyd’s line to the beginning; that is, following the intervening lines to the corner at which we began, at F. Taking this view of the description, contained in the deeds from Moses Sandridge to John Boyd, and from John Boyd to Nathan Cooper, there cannot be a doubt about the plaintiffs’s paper title covering the land in dispute.

2. The second ground relates to the admission of the will of Nathan Sandridge in evidence. His will was found in the proper office, (the Ordinary’s,) in which it had been recorded twenty-three years before the trial. It had been irregularly proved before Esq. Salter in 1804, soon after the testator’s death; so that the will was, in fact, thirty-eight years old; under it thirty-six years’ possession was proved. This was surely enough, and more than enough, to admit any deed or will as an ancient paper. In Robinson and wife vs. Craig, 1 Hill, 389, it was held that six or eight years’ possession under a deed more than thirty years old, which had been recorded soon after it was executed, was enough to admit it in evidence. In Duncan vs. Beard, 2 N. and McC., 406, one of the grounds raised the question as to- the admissibility of Salvadore’s will as an ancient paper. The will then was thirty-seven years old. Judge Colcock stated the rule, (as I think it always was and ought to be,) “ that a deed of thirty years may be given in evidence, without proof of its execution, if accompanied by possession, and a mere entry for the purpose of re-survey has been considered a sufficient possession.” If it had been clear that there had been possession under the will, in that case no other proof would have been required. For there is, in the application of this rule, no difference between a deed and a will. Apply those authorities to the facts, that the will here was thirty-eight years old, that it was found in the proper office, and that thirty-six years’ possession had been held under it, and it would task the ingenuity of learning to find a reason why it should not he received in evidence.

3. I shall next consider the 5th ground. It supposes that there was error in rejecting the evidence offered to prove the agreement between Cooper and the defendant, about the disputed line between them. Whatever that agreement was, it was reduced to writing; and unless the written memorandum of the agreement, signed by the parties, was produced, nothing can be said about it. Indeed, after we are informed it was in writing, it is the same, in the absence of the writing, as if no proof had been given. For the rule, that the best evidence which the nature of the cáse will admit of shall be given, excludes every thing until the writing is produced, shown to be destroyed, or that it is in the possession of the adverse party, who refuses, under a proper notice, to produce it. It is true, where an instrument comes collaterally in question, evidence may be given of it without producing it. But the agreement here, if any existed, was a part of the defendant’s title to the land, and must, therefore, be produced or accounted for, before secondary evidence can be received.

4. The defendant’s 4th ground only requires that I should refer to the case of Izard vs. Montgomery, 1 N. and McC., 381, for an authority to support the instruction given to the jury in this respect.

5. The defendant’s 3d, 6th, and 7th grounds present the same question — were the jury properly instructed onfthe rules of location, and did they correctly-locate the respective grants of the defendant and the plaintiff 1 Both grants are to James Hall; the defendant’s is the eldest. The difference between the surveys on which they were taken out is only three days; they were run by different surveyors. In the defendant’s grant, the line from the hickory corner to the red oak, the line B, A, was only run a short distance, perhaps a chain or two, one tree marked, and the balance of the line left open. The plaintiffs’s survey was run, beginning at the hickory, and thence down the creek to a comer H, thence to I, thence to K, thence to L, thence by various lines to F, and thence to A ; the red oak corner of the Hall grant, thence to the hickory B, was left an open line, the surveyor calling for the former survey as a boundary. These facts, which plainly appear from the plats annexed to the grants, are stated for the better understanding of the application of the rules of location to the case in hand.

The defendant’s counsel argued, that the Court erred in saying to the jury, that in locating the defendant’s grant, if course and distance, unaided by other circumstances, were resorted to, it could never even reach the hickory corner B, on the line C, B. That position, thus assailed, is, I still think, correct. The defendant’s plat, as that belonging to the oldest grant, is to be first correctly located, before the plaintiffs can claim any thing.

Beginning at A, the lines to D, thence to C, thence to the hickory station M, are established by the marked trees. At this point they fail, and the surveyor, to locate the balance of that line, and fix the corner, if he has nothing else to help him, must resort to course and distance. There is no dispute about the course. The distance from the corner C will hardly carry him beyond the hickory station M, but as that is marked and laid down on the original plat, he may ascertain the plat distance from it, and give that much to the line; still he will not reach B. He cannot assume, because the parallel line is proved by marked trees to be longer than that laid down in the plat, that this line is also that much longer; for the mistake of the surveyor or chain-carriers on one line need not necessarily occur on its parallel. The object of rules of location is to enable us to find where the surveyor went, and, when this can be ascertained, every thing is accomplished. To decide where the line, commencing at C, and running N. W. should end, it is necessary to ascertain where is the corner. The plat calls for a hickory east of Cane creek. The hickory at B is east of Cane creek; is beyond the distance called for in the defendant’s plat; was pointed out by Agnes Prewett, the then owner, in 1815, as the corner; it was marked for both surveys, and corresponded in age with them, when it was blocked, and the growths counted from the marks. The jury were told, according to .well-settled principles, that if that corner was established to their satisfaction, it fixed the terminus of that line at B, and then the line from B to A must be closed, without regard to the course or shape of the plat. This, it seems to me, is in conformity with Coates vs. Matthews, 2 N. and McC., 99; Colclough vs. Richardson, 1 McC., 167; Welch vs. Phillip, Id., 215; Walsh vs. Holmes, 1 Hill, 12. The jury established that corner, and it followed that the defendant’s survey did not cover the land in dispute, and that the plaintiffs’s grant, by closing on the same line, did. The verdict is, therefore, right, both in law and fact. The motion is dismissed.

Richardson, Evans, Earle, and Butler, JX, concurred.

Wardlaw, X,

assented, except under the first ground, to the sufficiency of the description in the deed from Moses Sandridge to John Boyd, which he doubts cannot be made to cover the particular parcel, without a violation of the statute of frauds.  