
    Thomas Middleton ads. George Perry.
    
      Columbia,
    
    1804.
    ,, .... One joint-ten* antortenantin common, who is entitled to ofiands, who and* ^bounds f°r 4’11; lUtlj X CbUVcr sucil part'. Parol testimony should be permitted mistake"^"» shew the real situation of land to he on one water-course, -when the grant calls for a different one, and that the land really and truly lies upon the waters of tho Catawba rr»f;r; instead of the waters of Broad river.
    TRESPASS to try title to land in Lancaster district. J
    
    -A7. B. This was a second trial, there having been non- . . suit entered into in the first one. See ante.
    
    Verdict for plaintiff. Motion for new trial.
    In this case, the plaintiff was only entitled to one third part of the land in dispute, as a tenant in common with two * * others. He, however, brought his suit for the whole tract i of 323 acres, by metes and bounds, and had a verdict for i , lili i _ , the whole, although he had only proved himself entitled to one undivided third part.
    The defendant, however, claimed under an elder grant to one Littlejohn, for 480 acres, which, it was contended, included the land in question, which, in the grant, was said to be on “ Cedar creek, waters of Broad river f but offered to call witnesses to prove that there must have been a mistake made by the surveyor who originally surveyed the land, in saying the land lay on Cedar creek, waters of Broad river, when, in fact and in truth, it lay upon Cedar creek, waters of the Catawba river. That there were two creeks of the same name, called Cedar creek, one of which emptied itself into Broad river, and the other into the Catawba river. But the presiding Judge (Gp-imke) refused to suffer witnesses to contradict the face of a grant under the great seal, and the plaintiff had a verdict for the whole.
    1 JBurr, 330. 1 JHorg. 371.
    This was a motion for a new trial, on two gi-ounds.
    1st. That the plaintiff had got a general verdict for the whole tract, when he was only entitled to one third part of it.
    2d. That defendant should have been let into parol proof to shew the mistake of the surveyor, and that the land in question really lay on the waters of the Catawba river, instead of the waters of Broad river.
    In support of the motion on the first ground, it was laid down as a general principle, that a man must recover according to the strength of his title ; and although he claim more, yet he can never recover more than he is entitled to; he may recover less than he claims, but that recovery must be according to the strength of his right and title, and no more. In the present case, it was said, he had recovered a verdict for the whole, which was more than he had a right to; consequently, unjust and against law.
    2. On the second ground, it was admitted as a general rule, that parol evidence should not be admitted, to contradict, or vary the face of a grant or deed. But it was urged, that it was every day’s practice, to admit parol proof to explain any ambiguity or mistake in it. White and Egan’s case, vol. 1. p. 247. (Riley’s edit.) was relied on as in point to this purpose ; also Heyward’s Reports, 23. Besides, it was alleged, that in a thick woody country, such as this was when the survey was made, before the geography of it was properly known, it was no uncommon thing for surveyors to mistake the names of water-courses, and in the meanderings of creeks and branches, which run in all directions through the country, to suppose that some of them run into one river, which in fact ran into the other. It was therefore absolutely necessary to admit of parol testimony in many cases, to correct these mistakes ; and unless this was done, in order to shew the true position or location of land, and to explain its real situation, it would be cutting off claimants to lands from one great source of information, essentially necessary' to the ends of justice.
   The Judges,

having considered this case fully, were of opinion, that if it was necessary to go again into the first ground made in this case, that it should be governed by the principles laid down in the case of M'Fadden and Wife v. Haley, ante, and in this case, upon a former motion to set aside a nonsuit, at the same term," ante, but as this point had been previously settled in those and one or two other cases, they did not think it now necessary to give any further opinion upon it.

Upon the second ground, however, they had no doubt but a new trial should be granted, on the ground that parol testimony should have been admitted, to have explained any mistake in the location of the land mentioned in the grant under which the defendant claimed ; and that such explanation was not repugnant to the statute of frauds, as had been contended for by the plaintiff. That our courts of justice had frequently permitted witnesses to be sworn, in order to rectify any mistake in the location of land, or even to explain deeds in cases of ambiguity or uncertainty, yr¡d thf ca?£ of White and Egan, quoted in the argument. was strong to that purpose. Where a grant called for a certain tract of land on the souths which was bounded on it to the north ; in that case, witnesses were called to explain the mistake in the original grant, and to show the true situation and location of the land in dispute. And the authorities in the books are numerous on that head.

2 Bl. Rep. 1249. SDuvnf. & East, 47*4. 2 Mk. 98, 99. S Mk. 389.

Rule for new trial made absolute.

All the Judges present.  