
    CORDEREY, ads. DEN, EX DEM CONOVER.
    1. Where a grantor, under whom both parties claim title to the premises in question, has conveyed the whole of a tract of land by metes and bounds, specifying its contents; and then except'ed out of it a certain number of acres, without giving a particular description of them; it is competent for the defendant to show by reference to other deeds and surveys, that the premises in question were part and parcel of the number of acres excepted out of the grant, and that in fact they belonged to the grantee at the time of his taking the conveyance.
    Upon the return of the postea in this case, the defendant obtained a rule to show cause why the verdict, which had been rendered for the plaintiff, should not be set aside and a new trial granted. The facts relied upon ,to sustain the motion were as follows :
    
      On the 10th of June 1819, John Frambes executed and delivered to Conover, the lessor of the plaintiff, a deed of conveyance, bearing date on the same day and year, by which he conveyed to Conover “all that tract of land, bounded &c., containing 911 acres; out of which was excepted by Ezra Baker, Jr., the grantor to the said John Frambes, the following parcels of land : to wit, lot first is 184 acres of land, which is contained in the above boundary ; lot number two is a survey of 117 acres, which was returned to John Blake ; lot number three is a survey to Ezra Doughty ; making in all 401 acres and leaving 508 acres : which lands said Baker became possessed of by deed from John Blake and by deed from Benjamin Peacock, bearing date the 13th of August 1817 : and the said John Frambes became vested in the said property by a deed from Ezra Baker, Jr., dated the 12th of March 1818, recorded, &c.”
    When the above stated deed was executed, as well as at the time of the execution of the deed from Baker to Frambes, the latter was seized of 100 acres, part of the 184 acre tract excepted in both deeds, by virtue of a deed from John Blake, dated the 8th of December 1814, which was prior even to the conveyance of Blake to Baker.
    The 100 acre tract, which formed the premises in controversy, was conveyed to Corderey the defendant by Frambes, after the conveyance by the latter to Conover. The question was whether the tract of 100 acres was conveyed to Conover by the deed from Frambes to him.
    
      A. Browning and L. Q. C. Elmer for defendant in support of the rule.
    
      W. N. Jeffers for plaintiff contra.
   The opinion of the court was delivered by

IIoESfBi.oWKE, C. J.

Both parties claim title under John Frambes, and the whole question in this cause, and the rights of the respective parties, depend upon the true meaning and construction of the deed from Frambes to Conover, the lessor of the plaintiff.

It is perfectly clear to my mind that by the terms of that deed, Frambes conveyed and intended to convey to Conover, only so much of the land contained in the 911 acre tract, ás he derived title to under the deed from Baker to him ; and which had been conveyed to Baker by the deeds from Blake and Peacock.

The-doubt or difficulty, in this case, arises from the fact, that at the time Frambes conveyed to Conover, he owned 100 acres, lying within the boundaries of the 911 acre tract; and.it is insisted, that by his deed to Conover, he conveyed all the land that belonged to him within those boundaries.

The deed is unskillfully drawn and upon a bare reading would convey that idea. It certainly does convey the whole of the 911 acre tract, which was not excepted out of the general grant to him by Baker. But the fact is, when Baker made the conveyance to Frambes, the latter owned 100 acres, the premises in question, by virtue of a conveyance made to him by Blake on the 8th of December 1814, which was long before Baker conveyed to Frambes, and before Blake conveyed to Baker. Baker therefore did not, and in fact could not, convey that 100 acres to Frambes; but on the contrary, it most satisfactorily appears, from an examination of all the deeds given in evidence, that that 100 acres was part of the 184 acres, excepted out of the 911 acre tract, in the deed from Blake to Baker, and also in the deed from Baker to Frambes. So that Baker in his deed to Frambes, very properly excepted out of the general terms of his grant, so much of the land as then belonged to Frambes. Frambes having after-wards sold this 100 acres to Corderey the defendant, the plaintiff has no title and must fail.

There was no evidence of any such adverse possession, as to justify a verdict for the plaintiff on that ground, and therefore the verdict must be set aside and a new trial granted. The costs must abide the event of the suit, as the verdict was probably owing to the want of proper direction by the court.

Verdict set aside and a new trial granted.  