
    COURT OF APPEALS, JUNÉ TERM, 1820. '
    Beall's Lessee vs. Bayard.
    whsnrfhe «míe. fa located* on'ole veyi“Vthe whoi% be given >in ?ríde¡>«¡ ■‘iionéH it is not itself lo»
    ,con> ,e“ th?n tl,e ^dehee^SmS wwSfSSp tSra”t°f the
    togaftthe fte'™aSdoai" tym^ln Ane^ñy granted™byh'!$e ryimd‘Z “ «íd by €. to the grantaml tliat the grántor had bar-g?™teed a\v&iC?h« the slit sSafi S- a{í„c^¿y «soto.'jT or by tbe chancellor, to conrey to the grantee “the said tract, as corrected by a stirvtfma^’blt'^, decree of the chancellor, the metes, bounds, cota-ses and didunces bring then ntabliskéd‘ to have and to hold the said ¡tract thereby granted tothe grantee anti li"' heirs,1’ &c. Held, .fchht such deed eonveyed only the quantity of land included within the met™ and bounds, eotHses and distances, estalN ached by the chancellors and -cannot be giyen inevidente uqless located*
    Appeal from Washington, county court. Ejectmént for ¡a tract of land called The Brothers, otherwise called The Besurvey on the Brothers, lying in JLlleg-any countv. con- „• , , „ _ , , , . . stisuous to the town ot Cumberland, containing 943 .acres 0 ' o
    
    , The defendant in the court below, (the appellee,) took •defence on warrant, and plots were returned; and on sug_ gesü©n, and an affidavit tliat a fair ami impartial trial could not bé had in Ml'egany county court, the case was transmitted to Washington county court for trial. At the trial there, the plafetifi; (the appellant,) read in evidence the plots and explanations, and proved that the locations on his part were truly made. The defendant also read in evidence the plots and explanations, and proved that the locations On his part were truly made. The plaintiff then read in ■¡evidence a patent for the tract of land called The Bro~ ■T , . , . ,. , , . ■thers, being tke tra-ct named in tne declaration, granted r, -E.r 70 the £9th or November 1774, to Thomas French, on a certificate of survey dated the 11th of May 1774, under a special warrant of proclamation issued to him on the 3 6tk of June 1763, to affect The Besurvey on Walnut Bottom, -surveyed for George Mason, &c. He further gave in cvidencé a deed from James Clark to Abraham Faw, for the samé land, dated the 7th of November 1785, which recited that said land had been conveyed to Clark, by Thomas French, on the 2.3d of October 1779,- as per his deed will appear; and then offered to read in evidence a deed from Faw to Thomas Beall, the lessor of the plaintiff, alleged by the plaintiff to embrace the same land, and dated the 24th of September 1810. It recited, “that Faw was seized in his demesne, in fee simple, of and in a tract of land situate, lying and being, in Allegany county, contiguous and adjacent tó the town of Cumberland, called The Brothers, or The Resurvey on the Brothers, originally estimated to contain 943 acres of land, which said tract of land ivas conveyed to Faw, by Clark, by deed dated the 7th of November 1785, and which tract of land was conveyed to Clark, by French, by deed dated the 23dof October 1779, and which .said tract of land was granted to French by the then Proprietor of Maryland, by virtue of a proclamation warrant, as by his patent, issued on the 29th of November 1774," would more fully appear.” It also récited, that Faw had bargained and contracted with Beall for the sale' of the said tract as had not been affected by older surveys, and then professes, for and in consideration of §5000, which had been decreed to Faw by the chancellor, to convey to Beall “the said tract, as corrected by a survey made by a decree of the honourable the chancellor of Maryland, the metes, bounds, courses and distances,being then established; to have and to hold the said tract, thereby granted', unto Beall, and his heirs, &c.
    To the reading of this deed the defendant, by his counsel, obj ected,because it was not for all the land' included within the lines of The Brothers, and because it was not- located on the plots. The court, \_Buchanan, Ch. J. Shriver and T. Buchanan, A. J.] sustained the objection, on the ground that the deed was not located on the plots, and therefore refused to l'et it go to the jury. The plaintiff excepted, and the verdict and judgment being against him,, lie appealed to this court. -
    The cause was argued in this cpurt before Earle, John's ox and Dorsey, J.' by
    
      Taney, for the appellant.
    He cited Hall’s Lessee vs. Gough,- X Harr. Johns. 119.
    No counsel appeared for the appellee.
   Borsey, 1

delivered the opinion of the court. The point raised in argument by the appellant’s counsel is this i—Was the deed from Abraham Faw to Thomtis Beall, of Samuel, for the tract of land called The Brothers, located on the plots? And this depends upon the question, whether the deed does in legal operation convey the whole tract; because, if it does, the deed, in effect, was located as the patent of the tract appears to have been located. The deed, after reciting that Abraham Faw was seized in fee simple of the tract of land called The Brothers, lying in Allegany county, which was granted by the then Proprietor of Maryland to Thomas French; and that the said Faio had bargained and contracted with the said Beall for the sale of the said tract as shall not have been affected by older surveys, professes, for and in consideration of the sum of 535000, which had been decreed to him by the chancellor of Maryland, to convey unto the said Beall, “the said tract as corrected by a survey made by a decree of the honourable the chancellor of Maryland, the metes, bounds, courses and distances, being then established; to have and' to hold the said tract, thereby granted, unto the said Beall and his heirs.” It is obvious, from reading this deed, that the grantor only intended to convey so much of the tract as was within the metes, bounds, courses and distances, established by the chancellor'; and the consideration money which he received from Beall, was co-extensive with this intention. The recital in the deed most clearly evinces this intention, and the granting part expressly declares it, by stating that the chancellor had corrected and established the metes, bounds, courses and distances, of the tract. The decree of the chancellor is referred to by each party,as establishing the extent of the land intended to be conveyed, and they must be bound by it; and the words of thehabendum is perfectly consistent with this construction, as it uses the terms “the said tract of land hereby granted.” If - the deed in question had contained a general warranty* and Beall had been evicted,- it would hardly be contended, that Faw could be made to' respond in damages for the loss' of that part of the tract which did not lie'within the metes, bounds, courses and distances, as established by the chancellor; but such would necessarily be the result, if the deed operated to convey the whole of the tract as patented.

The court are of opinion, that the court below did tfót err in not permitting the deed to be read in evidence to the jury, as the same was not located oh the plots; and therefore •

JUDGMENT AFFIRMED.  