
    J. A. Renwick vs. W. W. Renwick.
    Where a plat is referred to in a deed and made a part of it, it is inadmissible to vary alter, or contradict it by parol.
    The declarations of the vendor made after the sale and conveyance, cannot be given ' in evidence against the vendee.
    In trespass to try the title, where the defendant is in another district, the plaintiff is not bound to have the defendant served in the district where he resides, but may proceed in the usual course by original, alias and pluries, until the defendant is served in the district where the land lies.
    BEFORE MUNRQ, J., AT NEWBERRY, FALL'TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of trespass to try titles to one and eleven one-hundredths of an acre of land.
    “ The land in dispute was originally owned by one John Renwick, who departed this life some time prior to the year 1843, intestate; leaving a widow, Jane Renwick, two daughters, Mary A. E. and Rosanna, and the defendant, his son, his only distributees.
    “ It further appears, that in the fall of 1843, or the spring of 1844, the said distributees, with the assistance of a surveyor, made partition among themselves of the intestate’s real estate; in which partition one hundred and ten acres were allotted to the daughters Mary A. E. and Rosanna, and two hundred and eighty-six acres were allotted to the defendant, and on the 14th of March, 1844, the widow and the defendant, by a deed duly executed, released to the sisters Mary A. E. and Rosanna, all their interest in and to the one hundred and ten acres that had been allotted to them ; and on the same day, by a similar instrument, the widow and the two daughters, released to the defendant, all their interest in and to the two hundred and eighty-six acres, the portion that had been allotted to him in the above-mentioned partition. On the back, of each of these instruments there was a plat, but without course or distance marked thereon — representing the land embraced in each of them — these plats it was conceded, were made by the defendant himself. Subsequently to the above-mentioned partition, Rosanna intermarried with one Nathan Henry, who, together with his wife, on the 31st of March, 1848, conveyed to the plaintiff, all their right, title and interest, in and to the one hundred and ten acres in question; and, on the"23d of October, 1850, the other sister, Mary A. E,, who in the meantime had intermarried with one Widman, joined with her husband in conveying to the plaintiff, all their interest in the said land; by this means, tthe entire interest in the one hundred and ten acres, that had been allotted to the two sisters, became vested in the plaintiff.
    “ On the part of the defendant, it was conceded, that the one and eleven one-hundredths of an acre, the portion of land really in dispute, is included within the lines of the plat, on the back of his own and his mother’s deed to the two sisters for the one hundred and ten acres above referred to. Notwithstanding such concession, it was however contended, that it was competent for the defendant to show by parol, first, that the plat in question was left unfinished, and the reason for its having been so left; and secondly, that it is not a plat, or a true representation of the land in dispute, notwithstanding it is so designated in his own deed. I held the testimony offered to be incompetent, so that my ruling in this particular, furnishes the basis of the defendant’s first and second grounds of appeal.
    “ In reference to the third ground; I did exclude the declarations of the parties from whom the plaintiff derived title, and made subsequent to the date of their conveyance, upon the ground that they were incompetent by their declarations to disparage a title, which they had previously transferred to another.
    “ The gin-house and screw mentioned in the fourth ground of appeal, were erected by the defendant upon the land in dispute, some time between the years 1848 and 1845; subsequently the land around the gin house was cleared, and for the last three years that portion of the land which is in dispute has been fenced in and cultivated by the defendant. Since the commencement of the suit the gin house and screw have been removed off the land by the defendant. They were valued at five hundred hollars.
    “ The plaintiff’s writ was lodged in the Sheriff’s office on the 23d of Sept., 1853, the alias was lodged on the 2d of March, 1854, and the pluries on the 28th of March in the same year; and the deed referred to in the sixth ground of appeal bears date the 14th of March, 1844; so that only nine years and six months had elapsed between the date of the deed in question and the lodgment of the original writ. But it is clear, that the adverse occupancy of the premises in dispute, can, under no circumstances be traced back to a period of more than three years.
    “In relation to the ground in arrest of judgment, it is manifest that the verdict of the jury exceeds the amount of damages laid in the declaration, by at least one hundred dollars.”
    The defendant appealed, and now moved in arrest of judgment, on the ground:
    Because the verdict of the jury gave a larger amount of damages for the plaintiff than -the amount claimed by him in his declaration.
    And failing in this motion, then he moved for a new trial on the grounds:
    1. Because his Honor refused to permit the introduction of parol testimony by defendant, to show that certain lines, drawn on a deed without course and distance, were not a plat of the tract of land on which was situated the land in dispute.
    2. Because his .Honor erred in not allowing proof by defendant, to show that the plat was left unfinished on the 14th of March, 1844, the date of the deed, and the reason of it.
    3. Because his Honor erred in not allowing the declarations of the parties under whom the plaintiff claimed, to be given in evidence by the defendant, to show that they acknowledged the land in dispute to belong to defendant.
    4. Because the defendant is not liable in this suit for any damages for the removal of the gin house, gin and screw ; all this having been proved to have been done after the filing of the plaintiff’s declaration, and because, it is submitted, that the value of the gin house, gin and . screw, proved to be worth five hundred dollars, entered materially into the consideration of the jury in making up their verdict in this case.
    5. Because, it is respectfully submitted, that the ruling of his Honor in these various respects is contrary to law.
    6. Because more than ten years had elapsed from the date of the deed to Wm. W. Renwick from Jane Renwick, Mary A. E. Renwick and Rosannah II. Renwick, under whom plaintiff claimed, and the time the pluries writ was issued by which defendant was arrested, which would bar the action, the defendant living in Union district.
    
      Summer, for appellant.
    
      Jones, contra.
   Curia, per

O’Neall, J.

In this case the Court does not perceive any ground for new trial, which can be sustained unconditionally.

The two first grounds in relation to the plat might be sustained, where it was no more than a mere representation ; but here it is referred to in the deed and made a part of it, and of course, parol could not alter, vary or contradict it. If there had been mistake, it would be another question.

The declarations of parties in possession may be given in evidence against their subsequent grantees, but in no case have declarations made after a sale or conveyance, been permitted to be given in evidence. I understand from the report, that the rent for the land, and the gin, for five years last past, would probably very nearly, if not quite, cover the sum found by the jury. It is, therefore, unnecessary to consider the question, whether the jury might or not have included the value of the gin house and screw in their verdict ?

That the statute of limitations cannot help the defendant, is also plain. For the original writ was issued on the 23d of September, 1853; at that time, the defendant had not been ten years in possession, after the partition between himself, his mother, and sisters. That the plaintiff might, under the Act of 1823, 6 Stat. 211, have served the defendant, in Union, and the service would have been good in Newberry where the land lies, is true. But it does not hence follow, that the action was improperly commenced by original, alias, and pluries, resulting in the service on the defendant in Newberry.

The Act gave to the plaintiff an earlier means of bringing his action to trial; but if he chose to wait, and take the usual course of service, he had the right to do so.

But we understand, that the verdict is for six hundred and fifteen dollars, and the damages laid in the declaration are five hundred dollars. The plaintiff cannot therefore enter up judgment on the verdict, without entering a remittitur for the excess. This, according to 2 Tidd, 890-2, Strange, 1110, 1171, he might do of his own accord, and which he must do on the motion of the defendant.

The plaintiff is therefore directed to enter a remittitur, on the record of one hundred and fifteen dollars, the sum which the verdict exceeds the damages, and on this being done, the motion is dismissed, but if the plaintiff should neglect or refuse to enter such remittitur on or before the first day of February, next, then the motion is granted.

Wardlaw, Withers, Whither, Glover and Mukro, JJ., concurred.

New trial nisi.  