
    Whiteside vs. Singleton.
    Grant. Boundaries — Construction of calls. The most material and most certain calls control those which are less material and less certain- Newsom \& Pryor, 7 Wheaton, 7. Hence, where a gran't calls for a certain number of poles to “a stake, crossing the river,” the line must cross the river, though the distance terminates before reaching it.
    Same. Processioning — Surveyor's duty — estoppel—1806, cl, J 21, construed4 If a proprietor cause his land to be processioned pursuant to the act of 1806f he is estopped from claiming otherwise than according to the processioning. But the act does not authorise the public surveyor to procession aud re-mark a man’s land without his consent. He is only made the agent to survey and mark at the request of the owner, in reasonable conformity with the calls of the grant; and if he refuse so to make the survey, the owner may putastopto» the processioning; and if the surveyor, notwithstanding the owner’s dissent, proceed to complete the survey, according to his own views, it is binding on no one.
    SAME. Same — acquiescence. Qucere, what acquiescence in a processioning thus made by a surveyor, will bind the proprietor?
    Limitations. Deed founded on a void or voidable decree in chancery. Seven years possession of land under a deed, though founded on a void nr voidable decree in chancery, will perfect the title of the possessor.
    The State of North Carolina, by patent, 235, dated June 27, 1793, granted to John Gray Blount and Thomas Blount, 5000 acres of laud, “on both sides of the two main forks of Duck river — beginning opposite to the mouth of the War-trace fork, at a black walnut, a plumb-tree and a hickory,— also, a flat stone, set up by the black walnut, marked G. B., J. C., T. P., and J. D.; running thence west, 594 poles to a stake, crossing the river; thence east, 894 poles to a stake, and thence north, 894 poles, crossing the south fork, to the beginning.”
    The grantees, by deed, dated October 19, 1794, conveyed this tract, among other lands, to David Allison, who, by his deed, dated August 1, 1795, mortgaged it, with other lands, to Norton Pryor, of Philadelphia, to secure the payment of his promissory note of the same date, drawn in favor of Pryor or order, at ninety days, for $21,800. Allison having died without paying this debt, Pryor Sled his bill in the district court of the United States for the district of West Tennessee, against Allison’s heirs and devisees, who, being non-residents, were made parties by publication;
      
       and, ai October term, 1801, a decree was pronounced that the defendants should pay the money, by the 28th of January, iStilj otherwise the mortgage should he foreclosed, and the mafshall of West Tennessee, after sixty days notice, should sell the latid. It was accordingly sold by the Marshall, April 19, 180S, at auction; and Andrew Jackson became the purchaser, who gave to the Marshall á power of attorney, dated June 25, Í802, to convey to John Overton and Jenkiri Whiteside; which was done by deed, dated July 13, 1802.
    Overton and Whiteside caused the land to be divided into' four lots, by running lines north and South, east arid west, through the centre of the tract. The lot in the north east corner was numbered 1, that on the north west corner, 2, that in the south west; 3, and that in the south east, 4. By deed of partition, dated May 1, 1807, reciting the boundaries as described in the patent, they mutually bargained, sold and relinquished to each other, lots 2 and 4 to Whiteside, and 1 and 3 to Overton.
    Early in 18(18, Overton applied to Malcolrii Gilchrist, the deputy surveyor of the second district, to procession the whole tract, acfcording to the 21st section of the act of 1806, ch. 1. Gilchrist, accompanied by Overton, began the survey; but on running the western boundary, they differed in opinion as to the place at which that line’ should terminate. Gilchrist,- believing himself bound to stop at the end of the' distance, 894 poles, called for in the grant; ivould not extend the line'; as Overton insisted he' should, more than a mile, so as to cross the river,- — the grant calling for crossing the river to a stake, as the south west corner of the tract. The survey was therefore suspended, and Gilchrist and Over-ton went to the principal surveyor of the district for his instructions. He directed the deputy to terminate the line at the end of the distance called for, without regard to the call for crossing the river.” Overton expressed dissatisfaction with these instructions, and did not return to superintend the rest of the survey, which Gilchrist, nevertheless, proceeded to complete', marking the lines as represented by the black lines in the annexed diagram. He also, at the same time, ran and marked the dividing lines between Overton and Whiteside; and made return of his proceedings to the county register’s office, where they were registered, and also to the principal surveyor’s office, where they were laid down on the general plan of the district, on which, grant 235 is represented as a square, its western boundary as stopping before it reached Duck river, and its southern boundary as crossing the river nearly as on the annexed diagram.
    
      
    
    Twelve or eighteen months after this survey, and the first time after it, when Whiteside saw him, he directed Gilchrist to extend the western boundary of the tract, so as to cross the river, and also its other lines, and those of the partition, in the manner represented by the dotted lines in the diagram. It was done, and these lines were also marked.
    The lines of the processioning survey include fully 5000 acres, and the extended lines, a surplus of 1800 or 1900 acres.
    Three of the brothers of David Allison, for themselves, and one of them as administrator of Peggy Allison, one of his sisters, by their deed of August 3, 1812, relinquished tc? Andrew Jackson, all lands and other property in Tennessee, to which they had claims as heirs of David Allison.
    On the 15th of November, 1824, Jackson and Erwin, surviving partners of Kirkman, Jackson and Erwin, recovered a judgment, in the circuit court of Davidson, against Thomas Whiteside, administrator of Jenkin Whiteside for $7,049 23 cents, besides costs. The plea of fully adminis-: tered was found in favor of the defendant in that suit; and fhe plaintiffs, on the 31st of January, 1825, issued a scire facias against Jenkin Whiteside’s heirs, to subject his real pstate to the satisfaction of the judgment. At May term, 1826, judgment was rendered against the heirs, — of which judgment an execution came into the hands of the sheriff of Bedford, which was levied upon lots 2 and 4 of the land in question, being Jenkin Whiteside’s interest therein. It was pold by the sheriff of Bedford, on the 13th of January, 1827, to Thomas Whiteside, to whom the sheriff made his deed therefor, on the 10th of November, 1828.
    On the 14-th of June, 1828, the state of Tennessee granted to Robert and Clement Cannon, 698 acres and 127 poles, designated on the diagram by the letter C. This grant was founded on an entry made on the 9th of April, 1827, at' one cent per acre, pursuant to the act of 1823, c 49. The greater part, if not all the residue of the land south of the black lines, was appropriated by Newton Cannon.
    Jenkin Whiteside, in his life time, and his heirs, after his death, had possession of the locus in quo, south of the processioning southern boundary, from the spring of 1813 until the fall of 1827, when Dolly Singleton obtained possession thereof, claiming under Robert Cannon, which possession she held till the 9th of May, 1829, when this action of ejectment was commenced against her in the circuit court of Bed-ford. The plaintiffs declared upon a demise in the name of Thomas Whiteside, and also upon a demise in the name of the heirs of Jenkin Whiteside. At June term, 1829, Newton and Robert Cannon were admitted co-defendants with Singleton, and all the defendants, entered into the commpp pie, and pleaded not guilty.
    
      At December term, 1830, the cause was submitted to á jury, who found a verdict for the plaintiffs, and they had judgment. The defendants appealed to the supreme bobrt; by whom, at March term, 1833, the judgment of the circuit court was reversed, and the cause remanded for a new trial. It was tried at August term, 1836, before his Honor Judge Dillahuntv, of the 8th circuit, sitting instead of his Honor Judge AndeusOn, of the 5th circuit, and a jury of Bedford county.
    The evidence submitted to them was that of which the above statement is an abstract, except the mortgage from Allison to Pryor, and the decree of foreclosure pronounced thereon, and that part of Gilchrist’s deposition which details Overton’s refusal to acquiesce in the processioning, which were offered by the plaintiffs, but rejected by the court.
    His Honor charged the jury substantially—
    That the conveyance from some of Allison’s heirs operad fed to transfer their interest and no more, and would not enable the plaintiffs, if they claimed under it, to recover the whole tract. That the marshall’s deed passed no title to Overton and Whiteside, unless shown tó be founded on á judgment or decree. Nevertheless the power from Jackson to the marshall would authorise him to convey to Overtoil and Whiteside whatever interest Jackson had in the land under such judgment or decree. That the sheriff’s deed to Thomas Whiteside conveyed to him all the interest of the heirs of Jenkin Whiteside.
    That the processioning, made by a lawful surveyor, at thé instance and request of the claimants, was binding on them; and if M. Gilchrist was a lawful surveyor, the processioning made by him in 1808, was binding on Overton and White side, and those claiming under them, and estopped them from claiming any lands, south of the southern boundary of the processioning survey, which was to be regarded as fixing the southern boundary of grant, 235.
    That it was not competent for the claimants, after such processioning, to alter or change it, by extending the lines across Duck river or otherwise.
    That a surveyor, being a public officer, will be presumed in law to do his duty; and, if of his own accord, and with" out the request of the claimants, he run land out, and make his return, and it is registered, according to the 21st section of the act of 1806, c 1, it would conclude the claimants, their heirs and assigns; and, in this case, would estop Over-ton and Whiteside from claiming lands beyond the lines so established.
    The plaintiff asked the court to charge the jury, that the grant to the Blounts should have been so surveyed, as that the western boundary should extend across the river, and that the grant, on its face, uninfluenced by the processioning would hold the land so surveyed. That if the lessors of the plaintiff and their ancestor had held seven years undisturbed possession, under deeds purporting to convey the fee, such possession perfected the claim to the land which was covered by the grant, and vested them with a legal title, notwithstanding they had been unable to show a regular chain of conveyances from the grantees to themselves. That it was competent for Whiteside to disclaim the processioning made by Gilchrist, and the boundaries thereby made, and hold according to the natural objects called for in the grant. That he had a right to re-mark his boundaries in reasonable conformity with the calls of the grant, and it would be a valid establishment of his boundary, though it might not correspond with the processioning.
    .The defendant requested the court to charge the jury,, that the marshall’s deed to Overton and Whiteside, not being founded upon any decree or judgment, conveyed no title to the purchaser, whether that purchaser, under the circumstances of the case was Overton and Whiteside or Andrew Jackson: that the power from Jackson to the marshall did not operate as a conveyance from Jackson to Overton and Whiteside, nor did it create the relation between them of vendor and vendee, nor any privity whatever, nor cause the title subsequently acquired from Allison’s heirs by Jackson to inure, by relation to the marshall’s deed, to Overton and Whiteside: and that, unless a title was shown to exist in Jenkin Whiteside, the deed of the sheriff of Bedford to' Thomas- Whitside, vested him with no title.
    
      December 10.
    
    That though, before the processioning, the grant would have been surveyed so as to extend the western boundary across the river, yet after the processioning, the party could not so extend the boundary, but was thereby estopped. But if he could, it must be in reasonable conformity with the grant, and it is not in this case, because the surplus included by the extended boundaries is excessive; and that no re-marking which contains more than ten per cent, above the quantity called for in the grant, is valid.
    That if it appeared that the deed of partition between Overton and Whiteside did not extend beyond the limits of the processional survey, there was no title in severalty vested by that deed in Whiteside to the land beyond the boundaries of that survey; neither, in that case, would there be by the remarking, since it was made after the deed; and then White-sides heirs could not maintain ejectment for the locus in quo without joining Overton, or those claiming under him.
    That the object and effect of a processional survey, when made, was to fix the locality of the boundaries of grants. Consequently, if the ¿ocus in quo lies be} ond the lines of the processioning, it is not covered by the grant, and was, therefore, not granted land till granted to Robert and Clement Cannon; and, in that case, no length of possession would avail the plaintiffs.
    That if the locus in quo can be considered as granted to the Blounts, still the possession of the plaintiffs, anterior to the act of 1819, c 28, cannot be counted as forming any part of their prescriptive title, since the partition deed, if it do not cover the land, does not purport to convey a fee in the locus in quo, — and—
    That a possession held by tenant will aid the landlord’s defective title only to the extent of the lease, or actual occupancy of the tenant, and not to the extent of the landlord’s title.
    The jury found a verdict for the defendants, and a motion for a new trial being discharged, the plaintiffs appealed in error to the supreme court.
    F. B. Fogg, for the plaintiffs in error,
    and plaintiffs below. The circuit court expressed the opinion to the jury, that the marshall’s deed to Overton and Whiteside, and the power from Jackson passed no title. The character of that paper was such, that when Jackson was vested with the title of part of Allison’s heirs, by the deed of 1812, it inured to Overton and Whiteside. Jackson was estopped, by the recital in the power to say, that nothing passed by the deed of the marshall. It is not material or necessary, however, to consider this point, if the court below erred, and the plaintiff’s positions are correct upon the other point; and, on the other hand, if the court below was correct on the other points, this one will be unavailing. Unless the court erred in refusing to charge the jury tipon the points requested by the plaintiffs, it would be useless to reverse the judgment upon the other questions made in the record. Therefore no other points will be noticed by the plaintiff’s counsel.
    The grant from North Carolina has received a judicial construction in the case of Neivsom vs. Pryor, 7 Wheat. 5, (see also 4 Wheat. 445,) which is in conformity with the decisions of all courts as to boundary. This court will respect that construction. Then the State of North Carolina is estopped from saying that the line must not cross the river; for she, by her public officers, has decided that it does, and the processionary surveyor could not, by his survey, interfere with the natural boundaries of the grant. And when it is argued, that the plaintiffs are estopped by the processioning, from saying that the line crosses the river, it is answered, North Carolina is estopped by the grant from saying it does not; and estoppel against estoppel doth put the matter at large. No man can be estopped to alledge the truth when the truth appeareth of record. Co. Lit. 362, a; 3 Thomas’ Co. 466, 467, 468, top paging; 1 John. R. 495, Jackson vs. Hunter.
    
    There was no proof of acquiescence, as in this case, as reported in 5 Yerger.
    Washington for the defendants.
    1. The plaintiffs have deduced no title to themselves under the grant issued to John Gray and Thomas Blount.
    The title being in Allison by the conveyance of the grantees to him, it is attempted to be shown that it passed from him to the plaintiffs — 1. By the deed of his heirs to Jackson. 2.By the marshall’s deed to Overton and Whiteside. At most, the first of these deeds conveys to Jackson only three fourths of the land, or the interest of the three brothers. And as the marshall’s deed conveys nothing, because the sale made by him was not authorised by any judgment or decree, so far as appears in proof, — and as Jackson only sold to Whiteside and Overton the right to take his place as the highest bidder, at this unauthorised sale, so the title subsequently acquired by Jackson from Allison’s heirs does not enure to Overton and Whiteside. Because the relation of vendor and vendee did not exist between Jackson and Over-ton and Whiteside.
    But be this as it may, neither of these deeds covers the land unless the grant does, for all of them refer to the land by general description, not by particularising the boundary. And we contend that the boundary of the grant was uncertain until the making of the processional survey; and that survey fixed it, gave it locality, and determined that the land in dispute was not within it.
    2. The deed of partition between Overton and Whiteside does not include the land in controversy. Its calls conform strictly to those of the processional survey. It does not call for the western boundary to cross Duck river, but to terminate at a stake 894 poles from its beginning. Hence White-side cannot be considered as ever having had any title to this particular land in severalty, even if it is covered by the deed to him and Overton. Therefore, the plaintiffs and Overton are tenants in common, and they can maintain no action of ejectment upon their separate rights of entry.
    If that deed does not cover the land, any possession, therefore, held by Whiteside could not have been by deed, and thereof would not give effect to the statute of limitations.
    3. The deed from the sheriff of Bedford to Thomas Whiteside does not cover the land in dispute. That deed conforms to the deed of partition in the description of the boundary. If it did, as it was made in 1828, possession held under it, would not avail under the statute of limitations.
    4. It is not material now to inquire, as to whether the land, according to the calls of the grant, could, or could not have been so surveyed as to extend the boundary across Duck river. Because this court decided, when this case was before it, on a former occasion, 5 Yer. 22, “That the processional survey, when made, registered, and laid down on the general plan in the surveyor’s office, operated as an estoppel against Overton and Whiteside, subsequently claiming beyond its limits. Houston’s heirs vs. Matthews, 1 Yer. 116; Houston vs. Pillow, 1 Yer. 481; Dams’ lessee vs. Smith & Tapley, 1 Yer. 496. Clark vs. McElhanie, Brown vs. McLemore, MSS.
    The circuit judge rightly rejected that part of Gilchrist’s deposition, which related to Overton’s insisting that he should extend the western boundary across Duck river, when the processional survey was made. To admit it, would be to decide that the processioning is no estoppel; for if it be an estoppel, as this court has decided that it is, then the party whom it concludes cannot contradict it.
    5. When the boundaries of an ancient survey are obliterated, or when its boundaries were not originally actually marked, the proprietor may, by his own private authority, designate them, provided it be done in reasonable conformity to the calls of the grant. But this mode of ascertaining boundaries cannot be resorted to, after the public method, by processioning has been employed, which, in fact is the act of the party himself, done through a public officer, under the sanction of law.
    6. The only remaining and perhaps the most important question in the case, is, as to the statute of limitations.
    1. The plaintiff seeks to make good his title by the statute; and though this is a novel spectacle, yet it is admitted that our statute of limitations have the double operation, first — of barring the plaintiff’s remedy, secondly — of giving title by force of the possession. But here, the plaintiffs have not had the requisite length of possession. Their possession of the locus in quo did not commence earlier than 1SI3, after which, till the passage of the act of 1819, repealing that of 1797, a sufficient time did not elapse to give the effect to 
      the possession of creating title. Therefore possession under the act of 1797 will not avail the plaintiffs.
    December 17
    2. This brings us to the question —whether the plaintiffs have title by operation of the act of 1819? By the terms of its first section, this statute can only operate where the land in controversy has been granted by this state or North Carolina. This land has not been so granted, except to the defendants. When the statute does operate, its operation is confined to “the quantity of land specified and described in the grant-, devise, deed or other assurance,” under which the person claiming its benefit holds possession. The land in controversy is not “specified and described” in a grant, or in a deed, by neither of which is it comprehended. The statute requires that the muniment, under which the possession is held, must “purport to convey an estate in fee simple, to the land specified and described in such grant, devise, deed, or other assurance” — that is, to the identical land covered by the particular muniment under which the possession is held. But a deed in fee for land, the southern boundary of which terminates 894 poles from the northern boundary, does not purport to convey a fee to land which lies quite beyond that distance from the northern boundary. In other words, different things are not the same.
    3. With respect to the operation of the 2d section of the act of 1819, it merely bars the plaintiff’s remedy. And the extent of the bar has been decided by this court to be .commensurate only with the limits of the defendant’s actual occupancy. Dyche vs. Glass’ lessee, 3 Yer. 397. That is, when the defendant held possession without any title, as a mere trespasser.
    
      
      
         And consequently, the decree was void. Cooke’s R. 49. 6 Yer. 473. 2 Yer. 484. 1 Stark. Ev. 258.
    
   Turley, J.

delivered the opinion of the court.

The first question presented for the consideration of the court in this case is, whether the grant No. 235, from the State of North Carolina to John Gray, and Thomas Blount for five thousand acres of land, covers the premises in dispute. This grant calls to lie on both sides of the.two main forks of Duck river, beginning opposite to the mouth of the Wartrace fork, at a black walnut, a plumb-tree, and a hickory? &c, running thence west eight hundred and ninety-four poles to a white oak, thence south eight hundred and ninety four poles, to a stake, crossing the river, &.c. If in running the line south, the survey be stopped at the distance of eight hundred and ninety four poles, the land in dispute is not within the limits of the grant — but if the line be extended across the river, it is. This raises the question as to what construction shall be given to the grant. On the one hand, it is contended that the line must stop at the distance called for in the grant — on the other, that it must cross the river. This is not a new question, buf one which has been before the courts frequently. We are not therefore called upon to make a new precedent, but to follow old ones. This ques? tion was presented to the supreme court of the United States, in the case of Newsom vs. Pryor's lessee, 7 Wheat. 7, and it was held, that a call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance, and that there is no distinction between a call to stop at a river, and a call to cross a river. Chief Justice Marshall, in delivering the opinion of the court, says, “The courts of Tennessee and all other courts, by whom cases of this description have been decided, have adopted the same principle and have adhered to it. It is, that the most material and most certain calls, shall control those which are less material pnd less certain.” Many other decisions to the same effect might be adduced. We consider this sufficient, as the question is at this day hardly de-bateable. There is then no doubt but that the grant does cover the disputed premises.

2. It is contended, that though by the rules of construe? tion adopted by the courts, the grant does cover the land in dispute, yet in the year 1808, John Overton and Jenkin Whiteside, to whom belonged the land covered by the grant of five thousand acres, caused the same to be processioned by Malcolm Gilchrist, a deputy surveyor of the second dis? trict, in conformity to the 21st section of the act of 1806, c 1, by which the third line, running south, instead of being extended across Duck river, in pursuance of the call of the grant, was made to stop at course and distance, three hun dred poles short of Duck river, and that having done so, they are bound thereby and are estopped from now claiming to hold the land which would be included by extending the line to the natural object called for in the grant.

It is not denied that, where a tract of land has been processioned by its owner in pursuance of the provisions of the statute referred to, he is estopped from claiming otherwise than according to the procession; but it is denied, that in the case under consideration, any such processioning has ever taken place. This makes it necessary for us to inquire into the facts upon this question. It appears that John Overton, in 1808 or 9, went upon the lands with Malcolm Gilchrist, the deputy surveyor, for the purpose of making a procession of the same; that they commenced at the beginning, and ran the first line to the white oak called for, then the second, the course and distance, viz. 894 poles, at which point the surveyor stopped, and refused to proceed further; Overton contending that he should run on to the river in obedience to the express call of the grant, and not being able to agree upon this point, they stopped the survey and went to the principal surveyor, Wm. P. Anderson, for instructions; that Anderson directed Gilchrist to stop at the end of the distance of 894 poles called for, and Overton expressed his dissatisfaction with this result and refused to have any thing further to do with the processioning survey; that Gilchrist, without his presence or assent, proceeded to procession the land according to course and distance, disregarding the call for the river, and returned the plat and certificate of survey, which were received by the principal surveyor, and registered and laid down upon the general plan. It does not appear that Whitside had any agency whatever in this transaction. Is this a processioning of the land according to the provisions of the act of 1806, c 1, §21? We think most assuredly not. It is not pretended that a surveyor has it in his power under the provisions of said statute to procession lands, against the consent of the owner, and thereby force him to hold by lines, different from those called for in his grant — he is only made the agent to survey and mark at the request of the owner, in reasonable conformity with the original calls. If, upon application, he refuses to be governed by what the owner deems tc> be a reasonable conformity, and insists on running the lines differently, thereby depriving him of land included within his grant, he may refuse to have his land thus processioned, and thus put a stop to the re-survey. And if the surveyor will, (disregarding such dissent,) pertinaciously make the re-servey, according to his own views of propriety and correctness, it is a void act, binding on no one; and the rights of all parties remain the same as if the processioning survey had never been made. Such, we think, is the present case. Overton applied to have the tract of land processioned, he- and the surveyor disagreed as to the distance to which the second line should be extended, he being clearly right, and the surveyor clearly wrong; notwithstanding which the surveyor refuses to run the line otherwise than according to his views as to the distance; upon which Overton declined having, any thing further to do with the transaction, and left the surveyor without any authority from him for completing the resurvey: nevertheless this was done, and not in conformity with the calls of the grant, and greatly to the injury of the owners of the land. There can be then no pretence for saying, that this processioning and remarking was the act of the owners, it was the unauthorised act of the surveyor, and no estoppel can arise out of it.

But it is said, that Overton and Whiteside acquiesced in this re-survey, and that although they might not have been originally bound by it, yet they now are. by such acquis-cence.

The question of what acquiescence will deprive a man of a'portion of his estate, by making good an erroneous re-survey of his land, made without authority and originally void, is a very grave question, when it shall become necessary to determine it. We do not think that it arises here, because we think that there is no proof of an acquiescence on the part of Overton and Whitesides, nor any person claiming under them. The proof shows that the first time Cilchrist saw Whiteside, which was some eighteen months or two years thereafter, he expressed his dissatisfaction with the manner in which the land had been processioned and re-marked, and Requested him to go back and extend the second line to the river, which he accordingly did, and also ran and marked the other two lines, in conformity therewith. Overton and Whiteside some short time thereafter, to wit, in the year 1813, took actual possession up to the lines, as thus last marked, and have held such possession by themselves and those claiming under them ever since openly and notoriously. Here then is no acquiescence.

But it is said, that this acquiescence is evidenced by a deed of partition made and executed between Overton and Whiteside, for the tract of land covered by the grant for five thousand acres, under which the premises in dispute are claimed. This deed of partition bears date, 1st day of May, 1807; and was executed several years before the processioning by Gilchrist heretofore spoken of. Its construction must therefore be in conformity with that which would have been given to the grant in relation to boundary, unless there be something upon its face which will compel the court to give to it a different construction; and we think there is nothing. The deed of partition having been executed before the re-marking by Gilchrist cannot be considered as having any relation thereto, or as being governed in any manner whatsoever thereby; and although, in describing the tract of five thousand acres, which was to be divided, it is merely said to lie on both sides of Duck river, without calling for the river, as the termination of the second line, yet we know not, upon what principle this can be held a waver of any rights secured to them by the grant: that it is no acquiescence in a survey made afterwards, is too obvious to require argument; that it can amount to no estoppel to claiming to the legal limits of theNgrant, cannot be contended for with success. A deed of partition is an estoppel between the parties to the deed, but no further; that is, either party is estopped from denying the partition as made by the deed; but we are at a loss to know upon what principle they are es-topped by the deed, from claiming from the state more land than may be contained in the deed, if there be more justly belonging to them. It cannot be pretended that, if more b» divided than they have title to, the state is estopped from controverting their right; and the first principle of an estoppel is, that it must be mutual. Then even supposing, that the deed of partition did not divide all the land covered by the grant, the only consequence will be, that there remained a balance undivided, which tvas held in common by Overton' and Whiteside, subject to a subsequent division, which was afterwards made by Gilchrist under the direction of White-side, when the lines were extended to the river* in which' Overton acquiesced, each party taking possession and holding accordingly.

It is possible that it may have been considered that Over-ton and Whiteside were estopped, because Gilchrist, at the time he proeessioned and re-marked the land, also divided it between thetn in accordance therewith; but the same course of argument which proves that they were not bound by such processioning and re-marking, also equally proves that they were not bound by his division.

We do not consider that in the view we have taken of this bianch of the case, we have Unsettled any principle heretofore determined by our courts, or established any new doctrine endangering the stability of the land titles of the state. We merely assert what we apprehend has never been denied, that the act of 1806, cl, § 21, was not intended to authorise, nor does it authorise a surveyor to procession and re-mark a man’s land without his consent. This same case was before this court in 1833, and is reported in 5 Yer. 18. To the decision, as then made, we take no exceptions, but give to it our Unqualified assent, although in its result, different from the present; but the case was then presented upon a very different state of facts from what it now is. Judge Catron, who delivered the opinion of the court, assigns the following as the facts upon which it was founded — “That on opening of the Duck and Elk river county, the five thousand acres belonged to John Overton and Jenkin Whiteside. In February, 1808, they caused it to be processioned by Malcolm Gilchrist, a deputy surveyor of the .second district, in conformity to the 21st section of the land law of 1806. This survey was made with uncommon particularity, the first corner at the mouth of Wartrace fork of course was found, then running west, the' white oak corner was found. But this was all the marking, save some poles west from the beginning, a marked line was found. Gilchrist ran south, marked the western boundary plainly, and made the south west corner upwards of three hundred poles short of Duck river, then ran east and marked .the southern side of the tract, and made the south east corner; then north to the beginning, marking the south east side. This done he proceeded to partition the tract between Overton and Whiteside, according to a covenant between them and by their consent. The boundary seemed to be settled and was recognised as a true one by Whiteside and Overton, until sometime about 1816 or 1818, when White-side claimed the second line to run across Duck river.”

It only requires a statement of the facts as they were said to exist, and as they are now presented to the court, to see upon what a different foundation the case rests now, from what it did then. Then it is said, that Overton and Whiteside .caused the land to be processioned by Gilchrist — now, it appears that Whiteside had no agency whatever in the transaction, and that Overton so soon as he ascertained that Gilchrist was determined to make the procession at variance with the calls of the grant, refused to have any thing more to do with it. Then, it is said, that Gilchrist proceeded to partition the tract between Overton and Whiteside by their instruction — now, it is obvious that his partition was made, without any such instruction. Then, it is said, that the boundary as made by Gilchrist was recognised by Overton .and Whiteside until 1816 or 1818 — now it is manifest that so soon as Whiteside saw Gilchrist after the tract had been processioned by him, he expressed his dissatisfaction and directed him to extend the lines according to the calls of the grant, which was done; and in 1813, both he and Overton took possession of the land up to the lines as then extended.

The case of Clark's Lessee vs. McElhanie, goes no further than the case in 5 Yer. which has just been commented upon, the court holding that Clark could not disaffirm his own survey, and go to his old corner to the prejudice of a subsequent .enterer. And, in the case of McLemore vs. Brown, it was only held upon this point, that in as much as the Legislature by the act of 1819, c I, had authorised the surveyor of districts, in the case of the neglect of owners of granted lands in the Western Division of the State, to procession their lands and lay them down on the general plan, to do so for them; and that when this was done the owners might claim to the bounds re-marked against the state, and a subsequent enterer, —although they might be variant from the original lines, which could be established by proof; — and this, the more especially, as the same act prohibited the reception of entries for land within the limits thus re-marked. We therefore hesitate not to say, that there is no case within our knowledge, conflicting with the views expressed in this opinion.

3. But it is said thirdly and lastly, that the lessors of the plaintiff have not title to all the lands in dispute, unless it be by the operation of the statute of limitations. This is true, in as much as they have to deraign title through David Allison, the vendee of the grantees, and have only produced deeds of conveyance from a portion of his heirs. But it is deemed unnecessary to enter minutely into an investigation of this point, in as much as we are satisfied that the title of the lessors of the plaintiff has been perfected by the operation of the statute of limitations. It is proven that possession of the disputed premises was taken by Jenkin Whiteside in 1813; and that, the same was continued more than seven years by himself and those claiming under his title. At the time this possession was taken, John Overton and Jenkin Whiteside claimed title to all the land within the limits of the grant, by virtue of a deed of conveyance from Robert Hayes, Marshall of West Tennessee, bearing date 12th July, 1802. It is true that this deed of conveyance is founded upon a decree against David Allison, which is either void or voidable, (it is unnecessary to determine which;) for, inasmuch as the deed purports to convey all the land within the bounds of the grant, referring to it by number — and, in as much as we now determine, that the premises in dispute are covered by the grant, it follows, according to all the decisions, either on the statute of limitations of 1797, or on that of 1819, that possession under the deed for seven years will perfect the title, though it be founded on a voidable or void decree.

From this view of the case, it will be seen, that we think the charge of the circuit Judge, on the several propositions discussed in this opinion, is erroneous. The judgment will therefore he reversed and the case remanded for a new trial.  