
    The Lessee of Benjamin Eggleston, Enos Warner, and another v. Moses Bradford.
    Demises, except by persons holding a present interest, will be stricken out o'n. motion.
    Where land can be identified by the description it will pass by the deed, although some of the terms are false.
    A deed, convoying 960 acres in Athens county,” with no other description, will not pass land lying in another county.
    This is an action of ejectment, from the county of Hocking.
    The plaintiff’s title depends upon four deeds:
    1. Abel Hine to Enos Warner.
    2. Enos Warner to Nohemiah Sleeper.
    3. Nebemiah Sleeper to Joseph Wood and George Peterson.
    4. Josoph Wood and George Peterson to Benjamin Eggleston. To all these objections are offered:
    
      1. Hine assumed to convey to Warner “ one full share of land in the Ohio Company’s purchase, including all the lots in my name, in two several tracts, etc., standing in the name of Putnam and others, in trust for the Ohio Company.”
    It is objected that section 32, the land in question, is nowhere ^described in this deed, nor does any legal title exist in Hine. [313
    2. Warner conveyed to Sleeper “ those certain lots of land, situated in the counties of Washington and Athens, or one of them, containing 960 acres, part of the land conveyed by Hine, to be taken from the largest lots, to wit: No. 16, township 12, range 16, containing 640 acres,” etc.
    It is objected to this deed, that it was attested by one witness only, and acknowledged before a master commissioner in chancery.
    It is objected that the lot described in the deed is No. 16, and that lot No. 32 is not mentioned, and therefore does not pass. It is admitted that the number of the lot is mistaken. ^
    3. The deed from Sleeper to Wood and Peterson conveys the lands, etc., specified in a schedule. The schedule describes the land as “ three tracts of land, in Athens country, Ohio, 960 acres.”
    This deed is objected to as too general in its description.
    The objections to the fourth deed were not considered by the court.
    A preliminary motion was make to strike out the demise from Enos Warner. This motion was supported by the affidavit of the defendant, that Warner alienated his rights twenty-five or thirty years ago, that he has since claimed no interest, and knows nothing of this suit.
    The case was submitted to the court upon proof.
    H. Stanbery, for the plaintiff,
    insisted that the demise was properly laid in the name of Enos Warner, and that to sustain this motion is to establish the rule, that there can be but one demise, and that must be laid in the name of the person for whose use the suit is prosecuted. He denied the application of the New York authorities cited against him.
    To show that the deed from Warner to Sleeper was well executed, he cited 1 N. Y. Laws, 1813; 2 Shep. Touch. 189, 190.
    He also argued that the description of the premises is sufficient, and on that point cited Worthington v. Hylyer, 4 *Mass. [314 205 ; McChesney v. Wainwright, 5 Ohio; 453; Matthews v. Thompson, 3 Ohio, 272; Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326.
    J. T. Brazee, for the defendant,
    on the motion to strike out the demise, cited Adams on Eject. 188; Jackson v. Bancroft, 3 Johns. 257; Jackson v. Ogden, 4 Johns. 140; Jackson v. Richmond, 4 Johns. 483; Jackson v. Paul, 2 Cow. 502; Jackson v. Travis, 3 Cow. 356; Doe. v Fillis, 18 Eng. Com Law, 288. On the other question ho cited McChesney v. Wainwright, 5 Ohio, 452.
    Mr. Ewing, in reply:
    It is admitted, on the part-of the defendant, that there are cases in which it is proper to lay a demise in the name of one who has no beneficial interest, but it is insisted that this privilege is limited to suits by a cestui que trust, who has a right to use the name of his trustee in order to avail himself of the outstanding legal title.
    
    This is probably the correct view of the subject, and the reason doubtless is, that the real owner of the estate is, in this way, enabled to control the legal title without any necessity of resorting to a court of chancery.
    But it is obviously immaterial whether the trust be express, by deed, or arises by implication of law.
    
    Here there is a series of conveyances beginning with Hiñe and ending with Eggleston, the present owner; and the legal title has either passed down through this series, or it has not. If it has not, and if, by reason of some defect in his deed, the legal title remains in Warner, he then is the trustee of Eggleston, and the very case is made in which it is admitted that a demise may be laid in the name of a trustee. All who have been owners from the patentee to Eggleston are privies in estate, and it is not pretended that the title has ever been transferred to any other than Eggleston. Admit that Warner’s deed passed nothing but an equity. He then stands as a trustees, holding the legal title for the benefit 815] of any one to whom the ^equity may be transferred. The execution of a defective deed by Warner is an implied authority to all who claim under it to use his name, in order to control the legal title.
   Lane, C. J.

A preliminary question is made on a motion to strike out a demise. The title of the plaintiff is traced by a series of deeds through Enos Warner, and on leave of amendment, to avoid objections raised to the conveyance of Warner to him, he counts on a demise of Warner, which the defendant moves to strike out. „

This practice of permitting the plaintiff to count on the demise of any former owner in his chain of title has to some extent prevailed in this state; but has never been sanctioned by our courts; and the authorities cited by the defendant’s counsel show that no title should avail in this suit to work a change in the possession of land, except of one claiming a present subsisting right, saving only the case of a cestui que trust, who is permitted to use for this purpose the name of bis trustee. It is understood the practice of the Circuit Court of the United States in this district is in conformity with this principle.

Several objections are taken to the title of the plaintiff:

1. It is objected that, in the deed from Hine to Warner, section 32, the land in question, is nowhere described, and that no legal title exists in Hine.

The evidence shows the land was granted by patent to certain trustees, and a partition has been had in fact, by which section ' 32 was drawn to Hine. This partition, made many years ago, affecting all the lands in the Ohio Company’s purchase, has been generally regarded as the starting point to which titles to all the land in that purchase must be traced, and on which they all depend.

2. It is objected that the deed from Warner to Sleeper is attested by one witness only, and acknowledged before a master commissioner in chancery.

The law of New York, where this deed was made, lies before us, and shows that form of attestation is valid to convey.

It is further objected to this deed that the lot described in *it, [316 is No. 16, and that lot No. 32 is not mentioned, and therefore does not pass.

It is admitted thát the number of the lot is mistaken. Where the description of an estate contains a number of particulars, each of which is necessary to ascertain the estate to bo conveyed, the estate must correspond in character with each. But if sufficient be shown to ascertain the estate intended to be conveyed, the land may pass by the deed, although some of the particulars are false. 4 Mass. 205. And where the description alludes to facts beyond the deed, parol evidence may be offered, not to contradict the descriptjon, but to locate the deed upon the land. 4 Ohio, 453. In this deed we find it assumes to convey 960 acres, part of the share of Hine, lying in one of the two specified counties, to be taken from the largest lot. An original share in the Ohio Company’s purchase consists of a section of 640 acres, a frational section of 240 acres, a quarter section of 160, a ten acre lot, a two acre lot, and a city lot. In this case the section was No. 32; the fractional section was No. 16. It was an evident error of the number of the section, for there is not land enough in the share to satisfy the grant, unless the section 32 be included. It is a plain mistake, and we find no difficulty in discovering a description certain enough, neglecting the mistaken number.

3. In the deed from Sleeper to Wood and Peterson, the description is said to be too general.

If it were shown that Sleeper, at the date of this deed, had three tracts of land in Athens county, corresponding in quantity, and no other land to which the description could apply, we believe it would pass by these general terms. But as the land is described by no marks, except by its locality, it plainly would operate on no land, beyond the limits of Athens county. At the date of this deed, the county of Hocking had been erected, and the land lay within it. There is room to suspect a mistake, but a mistake which must be corrected in equity; for there are no terms in the description, which enables a court of law to identify the land.

Judgment for the defendant.'  