
    Tolson’s Lessee vs. Lanham.
    A gr:. f land is to be cons:rued nioit favorably for • the grantee.
    Land included m a grant, but excluded from the certificate of.survey oiovliick the grant issued*, cannot lie taken up as vacant laud.
    A grant of land cannot be corrected or controlpd by the certificate of survey, tyitwill pass the land* comprehended within the courses and distances expressed in the grant. ■ "
    If a grant is for more land than is cnntaiiu-d in the ct rtificate of survey, it may. be vacated in the ¿ourtof chancery; and if it is for less land, the grantee's remedy, if any, is in equity.
    Appeal from the General Court Ejectment brought by the appellant for a tract of land called 'Poison's Enlarge
      
      bif.nt, lying in Prince-George's county. The following ease was slated for the opinion of the court. A tract of land called Hunter's Polly, was surveyed on the 29th of November 1766, for William Hunter, as by the certificate thereof exhibited, and by which it was described as “beginning at a bounded Spanish oak, and running S. 7o° E. 84 ps. N. W. Í59 ps. then N. 7'4° E. 160 ps. thenN. W. 280 ps, to a black oak bounded, then S. 21° W. 185 ps. then with a straight line to the first boundary, containing and laid out for 334 acres of land more or less.” A patent issued on this certificate the 10th of June 1708, for-the tract called Hunter's Folly, describing it as ‘‘beginning at a bounded Spanish oak, and running S. 75° E. 84 ps. then N. 25° 73. 84 ps. thenN. W. 159 ps. then N. 74° E. 106 ps. then N. W. 280 ps. to a black oak, theii S. 21° \V. 185 ps. then with a straight line to the first free, containing and laid out for 334 acres of land more fer less, according to the certificate of survey thereof taken and returned into our land office, bearing date the 29th of November 1766.” The tract called Prison's Enlargement for which this suit was instituted, is not included in the certificate of survey of Hunter’s Folly, but is included in the patent which issued oil the certificate; if being admitted that there is a variance between the certificate and patent, and that the latter comprehends more land Ilian the former. The lessor of the plaintiff’, beforé xhe institution of this ejectment, took up the land, in the declaration of ejectment mentioned, as vacant land not included in the certificate of survey of the tract called Hunter's Folly, aad lie duly obtained á patent for the same.
   Chase, Ch. J.

The question is, whether the land mentioned in the declaration was not liable to be taken up as vacancy, it being excluded by the certificate of survey of Hunter's Folly, but included within the courses expressed in the patent for the said land? Whether the defendant can hold more land under his grant than what is comprehended in the certificate of survey?

The court are of opinion, that the grant is to be’ construed most favourably for the grantee. The lord proprietary could not grant what bad already passed from hint; without first going into chancery to vacate the former' grant;- and had less land passed by the patent than was contained in thé, certificate’, the defendant’s remedy', if 'any, must have been in equity.

T. Buchañañ, for the Appellant,

and by

'Mason, for the Appellee:

Judgment wás entered for the defendant’, and 'the plaintiff appealed to this court, Where thé casé was argued before Tilghman, BuchanAn, and Gantt, J. by

'judgment affirmed;'  