
    GENERAL COURT,
    OCTOBER TERM, 1801
    Carroll et al. vs. E. & S. Norwood.
    The time when a deed was recorded, is a matter of fact for the jury, to decide
    If possession oF the land mentioned in a deed has been held according to the deed, the jury may presume it was recorded within the time limited by LAW
    A deed express in the convey a mojety of a tract of land, descricing the mojety by and to certain a particylar number of acres is only competent so much of the land as is included within the linkes expressed in the deed, even though the quantity be less than half of the tract included in the patent
    Evidence may be given of possession under a defective deed which is located on the plots, although particular places of possession are not located.
    ^ An ancient deed not recorded in the records of the proper county, is evidence without proof of the execution, if possession of the land has been held under the deed; and livery and seisin of the land maybe presumed if possession lias gone and been held according to the deed.
    Certain ancient bonds of conveyance, &c. the handwriting of the witnesses being proved, admitted as legal evidence.
    ■Where the surveyor in locating a deed on the plots in the cause, had recited it by a wrong date— Held, that the deed was located on the plots, and permitted to be read in evidence m support of the location.
    Evidence cannot he received to prove where a certain tree stood, unless the tree, or the place where it stood, is located on the plots.
    A copy of a deed not necessary to be recorded, is not evidence.
    A misrecital of a deed as to its date is not material.
    A copy of a deed not enrolled in time, is no evidence of the proof of the original deed.
    A judge has no authority to take the acknowledgment of a deed to be recorded for safe keeping.
    If A, at the time of the execution of a defective conveyance to him from 13, of a tract of land, had possession of the land under an assignment ofB’s bond of conveyance to C, then the deed will operate to convey, as a release, the fee to A, and an after conveyance from B to D, cannot operate to convey the same land-
    —But such defective deed cannot operate as a deed of bargain and sale, so as to affect the title of R, and those claiming under him, which was acquired under the deed from B, unless D had notice of the deed from B to A, before the deed to him from B.
    If two defendants in a joint action of ejectment appearand take defence, neither of them will be permitted to sever his defence at the trial court.
    If the defendant does not locate his adversary possession on the plots, he will not be permitted to give evidence of such possession at the trial.
    The record of an ancient deed, not signed or sealed by the grantor, but acknowledged by him, and the time when enrolled not mentioned, was permitted tobe read in evidence.
    If A has been inpossession of land described in a deed to him from B, from the date of the deed to within seven years last passed, then a copy of an ancient deed, not enrolled in time from C to B, for the same land, and misrecited in the deed from B to A, with the rent roll entries, &c are evidence sufficient to induce the jury to presume and find a deed from C to B, for the land described in the deed from B to A.
    A copy of a deed not enrolled in time, made by the clerk of a court under seal of office, is entitled to no move .weight or credit, than a copy taken by a private person
    Judgment was entered qu a verdict in ejectment, for the plaintiff, for the land described to begin at a point not located on the plots, but to be lound by running a certain line, &c being for land not described bv any particular location on the plots in the cause, but included within the plaintiff’s location.
    Ejectmeht for a tract, of land called Fates his Forbearance, lying in Baltimore county. The declaration contained seven separate demises, viz. from Charles Carroll, of Carrollton, for one fifth, Nicholas Carroll, one fifth, Daniel Carroll, of Haddington, one fifth, Robert Carter, one fifth, Abraham, Van Bibber, one tenth. Isaac Van Bibber, one fiftieth, and William Smij¡ four fiftieths. The defendants took defence rant for all the lands within the lines of ^le^Mited Friendship, as located in two ways by the \urv(wpr. as the pretensions of the defendants, on the/pUfts’Yi turned in the cause. The cause came on fo* t May term 1801.
    
      The Plaintiffs Title.
    
    (A) Patent granted to George Fate on the 20th of July 1684, for a tract of land called Fates his Forbearance, containing 770 acres, more or less.
    (B) Will of George Fate, dated the 6th of June 1691, by which he devised the said land to his two . . sons, George and John, m fee, as tenants in common, ^ ^
    
      (C) Deed from George Yate, (the so»,) to John Israel, dated the 5th of July 1712, for his one moiety °r half part of the said land as above devisi d, which moiety is described by courses and distances, and stated as containing 382 acres. The time when the deed was recorded is not mentioned.
    (D) Deed from John Fate to Joshua Sewell, dated the 1st of July 1710, for 100 acres, part of the said tract, described by courses and distances.
    (E) Deed from John Fate to Hohert Chapman, dated the 5th of March 1715, for 100 acres more or less, of the said tract, described by courses and distances, The time when the deed was recorded is not mentioned.
    (F) Iked from John Fate to John Israel, dated the 29th of November 1715.
    (G) Will of John Israel, dated the 13th of January 1723, whereby he devised 385 acres of the said tract, purchased of George Fate, and 182 acres thereof purchased of John Fate, being the remainder of Fate’s Forbearance, to his sons John Laeon Israel, Gilbert Talbot Israel and Robert Israel, in fee, as tenants in common.
    (H) Deed from John Laeon Israel to George Buchanan, dated the 7th of July 1731, for 151 acres, the castermost'part of the said tract of land.
    (I) Deed from George Buchanan to Doctor Charles Carroll, dated the 11th of April 1732, for the said 1 St acres of land.
    (J) Bond from John Laeon Israel to John Hurd, dated the 24th of December 1730, covenanting to convey to the said Hurd 100 acres of land out of the said tract.
    (K) Assignment of the said bond from John Hurd - to Benjamin Tasker and Company, dated the 25th of February 1745.
    (L) JBond from John Hurd to Benjamin Tasker and Company, dated the 26th of March 1747, reciting the above bond and assignment, and covenanting to deliver up to the said Tasker & Co. possession of the said ipo acres of land on the 10th of December 1749.
    
      (M) Deed from John Lacón Israel to Benjamin Tas-her and Company, dated the 15th of Jane 1750, for the said 100 acres of land, which the said Israel had covenanted to convey to John Hurd by bond, which had been assigned by the said Hurd to the said Tasker & Co. This deed was recorded in the records of Anne-Arundel county, on the I5fh of June 1750, and after-wards by decree of the chancellor recorded in the records of the general court on the 18th December 1794.
    (N) Heed from Gilbert Talbot Israel to Doctor Charles Carroll, dated the 26th of June 1732, for all the lands devised to the said Gilbert by his father.
    (O) Heed from Robert Israel to Charles Carroll and Company, dated the 26th of August 1743, for all the lands devised to the said Robert by his father, covenanted to be 275 acres of Fates his Forbearance.
    
    (P) Deed from Robert Chapman, (son and heir of Robert,) to Daniel Dulany and Company, dated the 23d of December 1749, for 100 acres of the said tract of land.
    (Q) Deed from Joshua Sewell to Richard Colegate, dated the 12th of November 1716, for 100 acres, part of the said tract, described by courses and distances.
    (R) Will of Richard Colegate, dated the 8th of August 1721, devising the said 100 acres to his son Richard Colegate, and to his heirs in tail.
    
    (S) Common Recovery suffered by Richard Cole-gate in the provincial court at October term 1735, docking the estate tail on the said .100 acres of land.
    (T) Deed from Richard Colegate to Charles Carroll and Company, dated the 29th of October 1735, for the said 100 acres of land.
    (U) Deed from Doctor Charles Carroll to Benjamin Tasker, Charles Carroll, Esquire, Daniel Dulany, and Daniel Carroll, of Duddington, dated the 25th of September 1733, conveying sundry tracts of land, and amongst others the, land in question, to be held by all the above persons in company, &c.
    (V) Will of Charles Carroll,. 'Esquire, dated the 19th of June 1780, devising his part of the said tract of land to his son Charles Carroll, of Carrollton, oné of the lessors of the plaintiff.
    (W) Will of Charles Carroll, of Duddington, [son and heir of Daniel Carroll, of Duddington,] dated the 12th of March 1768, devising his part of the said land to his son Daniel Carroll, of Duddington, another of the said lessors.
    (X) Evidence, that Doctor Charles Carroll departed this life, leaving Charles Carroll, Barrister, his heir at law.
    (Y) Will of Charles Carroll, Barrister, dated the 7th of August 1781, devising his part of the said land to Nicholas Carroll, another of the said lessors.
    (Z) Will of Benjamin Tasker, junior, dated the 3th of October 1760, devising all his lands to hrs father, Benjamin Tasker.
    
    (AA) Will of Benjamin Tasker, dated the 15th of February 1766, devising that all his lands be sold by Jinn Ogle, Christopher Lowndes and Robert Carter, or the survivor of them.
    (BB) Deed from Jinn Ogle and Robert Carter to Daniel Dulany, dated the 14th of September 1770, for the said part of the said land, which was devised to he sold by the said Tasker.
    
    (CC) Deed from Daniel Dulany to Robert Carter, another of the said lessors, dated the 2d of December 1786, for the last above mentioned part of the said land.
    (DD) Will of Daniel Dulany (named in the deed. from Doctor Charles Carroll,) dated the 26th of February 1752. In this will no mention is made of the land in dispute, nor is there any residuary devise. [It appears, that on the 26th of November 1759, Walter Dulany conveyed to Daniel Dulany all his the said Walter’s undivided moiety or half part of and in a fifth part or share of and in a certain Iron Works, commonly called The Baltimore Iron Works, and all lands, &c. belonging to the said company, &c. That on the said 26th of November 1759, Daniel Du-lany conveyed to Walter Dulany one moiety, or full half part of all his the said Daniel’s right and inte-pest in the said Iron Works, lands, &c. reciting in the said deed, that the honourable Daniel Dulany, deceased, being seised and possessed of one fifth part or share of the said Iron Works, &c. conveyed his said fifth part or share, and every thing thereunto belonging, to his sons, the Said Daniel and Walter, for arid in consideration of the natural love and affection, &c. That the said Daniel and Walter, the sons, in virtue of the said conveyance, actually entered and became seised, &c. That the said Walter had executed a deed, bearing even date with this deed, conveying to the said Daniel in fee simple, all his the said Walter’s undivided moiety or half part of the said fifth part or share in tlie said Iron W orks, to the intent and purpose that, the legal right in the said whole fifth part or share of the said Iron Works might lía vested in the said Daniel, in order that by the operation, vigor and effect of the said deed, and also of these presents, a partition or division might result, take place and be effectuated, and all right of accretion or survivorship be prevented or destroyed between the said Daniel and Walter, in respect of their interest, part pr share, in the said Iron Works, both real and personal, &c.j
    (EE) Deed from Daniel Dulany, son and' devisee in the will of the said Daniel above mentioned, to his son Daniel Dulany, dated the 16th of September 1772, for one tenth part or share of the lands, &c. belonging to the Baltimore Company.
    
    (FF) Evidence, that the lands conveyed by the last mentioned deed were confiscated to the state as British property.
    (GIG) Evidence, that Walter Dulany, son and de-visee in the will of the said Daniel above mentioned, died intestate, and left a son and heir named Daniel, and that the lands which descended to the last mentioned Daniel, from his said father, were also confiscated to the state as British property.
    (HH) Deeds from the Chancellor, acting on behalf of the state, to Abraham Van Bibber, another, of the said lessors, one dated the 5th of February 1787, and the other dated the 19th of September 1792, for one half of one tenth of the said lands confiscated as aforesaid, as the property of the said Daniel Dulany, of Daniel, and for one half of one tenth of the said lands confiscated as the property of Daniel Dulany, of Walter,
    
    When a deed was recorded is a fact for the jury to decide, and they may presume. It was recorded in time if possesion of the land has been held under it.
    (II) Deed from the Chancellor as aforesaid, to Isaac Van Bibber, another of the said lessors, dated the 11th of October 1792, for one fifth of one tenth of the said lands, confiscated as the property of Daniel Dulany, of Walter.
    
    ■ (JJ) Deed from the Chancellor as aforesaid, to William Smith, the other of the said lessors, dated the 12th of December 1792, for four fifths of one tenth of the said lands, confiscated as last aforesaid.
    (KK) Deed from George Fate to Thomas Cockey, daled the 23d of August 1726, for 144 acres of the tract of land called Forbearance, and all his the said George’s right, &c. as eldest son of his father, or under and by virtue of his father’s will, &c.
    (LL) Deed from Thomas Cockey to Daniel Dulany, Benjamin Tasker, junior, Charles Carroll, Esquire, Doctor Charles Carroll, and Charles Carroll, son and heir of Daniel Carroll, of Duddington, dated the 29th of December 1748, for 140 acres more or less, part of Fates his Forbearance, described by courses and distances.
    (MP4) Deed from John La con Israel to Charles Car. roll, Esquive, Benjamin Tasker, Charles Can-oil, son of Daniel, Charles Carroll. Barrister, Daniel Dulany, and Walter Dulany, dated the 17th of September 1761, (reciting the former deed to Tasker, which by mistake was recorded amongst the records of .Snne-Jlrun-del countj,) conveying the same 100 acres,(which had been covenanted to be conveyed to Hurd, &c.
    
      Sills of Exceptions, &c.
    1 The defendants objected to the deed (C) from George Fute to John Israel being read in evidence to . „ . • lt: no* aPIH-arm& that the same was recorded v'ií¡!'n ,fu> <;ime by law, and there being no evidence presénted or offered to the court or jury that the said John Israel, or those claiming under him, ever did possess or hold any land in virtue of or under that deed.
    A deed expressing to convey a moiety of a tiact of land, but describing it by courses and distances, is only competent to convey'so much of the land as is included within the lines expressed in the deed*
    E Where land comprehended in a defective deed is located on the plots, evidence may be given of possession, &e.
    Chase, Ch. J. 
      
       The Court are of opinion that the time of recording the deed is a matter of fact to be decided by the jury; and if it appears to them that the possession of the land mentioned in the deed has been held according to the deed, the jury may and ought to presume the said deed was recorded within the time limited by law; and on that ground the court admit the copy of the deed to be read to the jury, subject to the future direction of the court in case such possession is not proved. The defendants excepted.
    2 Tlie defendants prayed the opinion of the court and their direction to the jury, that the deed (C) from George Fate to John Israel is only competent to convey so much of the land called Fates his Forbearance, being the land mentioned in the said deed, and of which a part was thereby intended to be conveyed, as is included and comprehended ’within the lines expressed and specified in the said conveyance, even though the quantity so conveyed should be less than half the land included in the patent for the said tract.
    Txie Couet were of that opinion, and so directed the jury.
    3 The deed (C) from George Fate to John Israel is located by the plaintiff on the plots returned in the cause, from A to 6, to 11, to 21, to 22, to 23 and to A. The defendants objected to the reading the said deed in evidence to the jury, because it did not appear by the said deed, or by any other evidence produced, that the same had been recorded within the time limited by law; because there was no evidence produced to the court or jury to shew that the said John Israel, or those claiming under him, ever possessed any lands in virtue, of that deed; and because there being no possessions of the plaintiff, or those under whom he claims, located upon ’hi ¡ h is returned in this cause, as being within the lines of the land included within the said deed as located by the plaintiff, he the plaintiff could not be permitted to give any evidence of possession under the said deed.
    An ancient deed, not recorded in the records of the proper county, is evidence without jíroofofits execution, if possession of the land lias been held under it; and the jury may find Uverj and seisin, &c.
    Ancient bonds of conveyance &e admitted in evidence on proof of the hands writing oi the witnesses.
    Chase, Ch. J. The court are of opinion, that as the land, comprehended within the deed from George Fate to John Israel, is located on the plots, the plaintiff may give evidence of possession of that land, although particular marks or places of possession are not located. The defendants excepted.
    4. The plaintiff having, to shew title to the land mentioned in the declaration, produced ana read to thejury the patent, wills and deeds, (A) to (I) inclusive, then produced and offered to read to the jury a deed(M) from John Lacón Israel, to Benjamin Tasker, dated the 15th of June 1750, recorded in the land records of Anne-Arundel county. Rut the plaintiff offered no cvideuce of the execution thereof, or of any possession of the land mentioned in the deed by the said Tasker, or those claiming under him. The, plaintiff also produced and offered to read to the jury, a bond (J) from John Lacón Israel to John Hurd, with the endorsements (K) thereon. Also a bond (L) from John Hurd to Benjamin Tasker and partners. The plaintiff also swore Charles Ridgely of William, who deposed that Richard Croxall, a subscribing witness to the said assignment (K) an d bond (L), was dead, and that he, Ridgely, believed that the signing of the name of Richard Croxall as a witness to the said assignment and bond, was the hand writing of said Richard Croxall, deceased, having frequently seen him ,write.
    To the reading of which last mentioned deed, and the two last mentioned bonds, the defendants objected, and prayed the opinion of the court, whether the said deed and bonds were proper to be read as evidence to thejury in this cause.
    Chase, Ch. J. The court are of opinion, that the deed from John Lacón Israel to Benjamin Tasker, being an ancient deed, is evidence to thejury, without proof of the execution, if the jury shall find, the possession of the land has been held under the deed; and that, the jury may and ought to presume and find livery and seisin of the land, if they find the possession has gone and been held according to the deed.
    An ancient deed is evidence without proof of the execution, if die jury find possession of the land has been held under it, and they may and ought to Í» resume and find ivery and seisin, &c.
    The court are also of opinion, that the bonds from John Lacón Israel to John■ Hurd, and from John Hurd to B. Tasker and others; are legal and admissible evidence in this cause, and proper to be read to the jury. The defendants excepted.
    5. The defendants produced and shewed to the court, á deed from the said John Lacón Israel to Edward Norwood, father of the defendants, dated the 28th of March 1760, for “all his right,” &c. “of and in a tract of land called Goshen, Addition and Cannon’s Delight; also all his right,” &c. “unto any tracts or parcels of land devised to the said Israel by his father’s last will and testament, or otherwise as heir at law, have become the property of him the said J. L, Israel
    
    The defendants objected to the reading of the said deed (M) from John Lacón Israel to Benjamin Tasker, unless the execution of the same was proved.
    
      8. Chase, Jun. for the plaintiff,
    to shew that the deed may operate as a feoffment, and that every deed will operate to effectuate the intent of the parties, cited Shep. T. 83, 84. 2 Wils, 22, 75, 79. Gilb. L, E. 103, 161. 13 finer, 206. 1 Roll. Rep. 132. 1. Wood. 530.
    
      Mason, contra. Two things are required—If the deed is to operate as a feoffment, it must be proved, and if possession has gone along with the deed, then livery shall be presumed, though it be not proved; but if possession has not gone along with the deed, then the livery upon the feoffment must be proved. Lofft’s Gilb. 105.
    
    
      Martin, (Attorney General,) for the plaintiff.
    The endorsement made on tiie deed by the clerk of Anne-Aruiulel county, is evidence of the deed’s being 50 
      years old; and the acknowledgment before a justice of the provincial court, is conclusive evidence of its execution.
    A deed although located on the plots by a wrong date, may be read in evidence in support of the location.
    Chase, Ch. J. The Court are of opinion, that the deed (rom John Lacón Israel to Benjamin Tasker, being an ancient deed, is evidence to the jury, without proof of the execution, if the jury find the possession of the land has been held under the deed; and that the jury may and ought to presume and find livery and seisin of the land, if they find the possession Isas gone and been held according to the deed. The defendants excepted.
    6 The surveyor of Baltimore having certified that he had located for the plaintiff, upon the fiats retiun-ed, a deed (E) from John Fate to Robert Chapman, ' ' * * dated the 5th of March 1715, beginning at the e¡ d of the 6th line of Fates his Forbearance, at I), and running from thence to 19. to 20, to 16, and to D. as described upon the said plots, the plaintiff produced and offered to read to the jury, the said deed from JohnFate to Robert Chapman, whereby is granted, &c. all that piece or parcel of land lying on the N. side of Patapsco river, in the county aforesaid, beginning at a bounded gum, and running S 160 ps. to a bounded black oak, then E. 100 ps. then N. 160 ps. then W. 10O ps. to the first tree, containing 100 acres more or less, being part of a tract of land called Fates his Forbearance. [The time when the deed was recorded is not mentioned.] The plaintiff also produced and offered to read to the jury, a deed (P) from Robert Chapman to Daniel Did any, dated the 23d of December 1749 — which deeds were produced and offered to be read to the jury, in order to make title to the. land as located upon the plots in manner aforesaid from D to 19, &c. To which the defendants objected, because the said deeds, so offered to be read in evidence by the plaintiff, are not located upon the said plots. The plaintiff offered in evidence to the jury a sworn copy of the instructions delivered to the surveyor to lay down the said deeds, viz. “Locate deed, Fate to 
      Chapman, beginning at the end of the sixth line of the whole tract, thence running S. 160 ps. thenE. 100 ps. then N. 160 ps. and thence to the beginning, cor-renting the variation by allowing one degree for every SO years from the date of the certificate,” &c. The plaintiff offered to prove by a witness, that he delivered to the surveyor the said deed from Fate to Chapman, with the instructions to lay the same downj as also the said deed from Chapman to Dulany.
    
    Evidence as to where agree stood, not admitted, unless the place is located on the plots,
    Chase, Ch. J. The Court are of opinion, that the deeds from Tate to Chapman, and from Chapman to Dulany, are located on the plots, and they allow the same to be read in support of the location. The defendants excepted.
    
      7 The plaintiff having located the deed (E) from John Fate to Robert Chapman, to begin at black D, as designated upon the plots, and to run from thence to 19, to 20, to 16, and to D, the defendants examined a witness, who had been sworn on the survey, as to the fence designated on the plots from red h to red k, and who gave evidence as to the making of that fence by the defendants. The defendants then, to disprove the beginning of the said deed from Fate to Chapman, so set up by the plaintiff as aforesaid at black D, off red to prove by the said witness the place where, about 15 years ago, there stood an ancient gum tree, marked as a boundary, with the letters IIC upon 'it, which place is in the said line of fence from red h to red k, and near the letter red k; that at the time he saw the said gum tree it was then dead, and had the appearance of having been marked'a great many years before that time, and that the said gum tree is now down and gone.
    Chase, Ch. J. The Court are of opinion, that inasmuch as the gum tree, or the piace where it stood, is not located on the plots, the evidence offered is inadmissible, and cannot legally be received. The de.» fondants excepted..
    
      Deeds of bargain and sale only, before the act of 1706, ch 14, could he acknowledged • and recorded..
    No instance of a deed’s being acknowledged and recorded for safe custody: and a .judge has no authority to take the acknowledgment of such a deed.
    A copy of a deed not requiring en-rolment, is not evidence; nor is a copy of a deed not recorded in time, proof of the origina* deed
    A misrecital of a deed as to its date is not mate-
    8. The plaintiff produced and offered to read in evidence to the jury, the exemplification or copy of a deed (E) from John Yate to Robert Chapman, dated the 5th of March 1715, under whom the plaintiff claims, by divers subsequent conveyances, the part of the said tract of latid called Fates his Forbearance therein mentioned; and the plaintiff prayed the court to allow the same exemplification or copy of the said deed to be read in evidence to the jury, as proof of the original deed, although not recorded in time, as there are words in the said deed, by which the same may operate as a deed of release, or of feoffment.
    
      Ridgely, for the defendants, contended,
    that the copy ought not to be read in evidence to the jury for-any purpose. He cited 14 Finer, 446. 12 Finer, 84, 121. Co. Litt. § 66, § '365. 2 Freem. 259. Style's Rep. 445. 3 Lev. 388. 2 Bac. M. 307, 308. 10 Co. 92. 3 T. R. 156. Esp. 774, 239. Bull. JV. P. 256. 1 Salk. 269.
    
      Martin, (Attorney General,) for the plaintiff, contended, that an ancient deed, at common law, w^as good, although it had not been enrolled within the time limited by law. He cited the case of Hoddy vs. Hairy man, (3 Harr. & M‘Ilcn. 381.He also cited 1 Ventris, 296. 1 Salk. 280. Comb. 247. 2 Bac. Jib. 308. 3 Com. 280. 3 Lev. 388. He also cited 1 Ld. Ray. 746, to shew that a copy of the enrolment of a deed may be given in evidence. Where a copy may be admitted in evidence though not examined, 1 Mod, 4. That even recitals in a deed, under certain circumstances, are evidence of the deed, 6 Mod. 44, 45. That an engrossed copy, though not executed, may under certain circumstances, be given in evidence, Jhnbler, 247, 248.
    Chase, Ch. J. There is no instance of a deed’s being acknowledged and recorded 'for safe custody^ but all deeds are acknowledged and recorded under acts of assembly. Deeds of bargain and sale onlyP previous to the act of 1766, ch. 14, could be acknowledged before a judge or justices. A copy of a deed not requiring enrolment, is not evidence to be read to the jury. A misrecital of a deed as to its date, is not material, other matter recited being certain. The Ch. J. cited 3 Lev. 387. 2 Freem. 259. Finer, tit, .Evidence. Statute 10 Ann, ch. 18.
    Where the grantee in a defective, deed is in possession of the land under a bond of conveyance, such deed will operate to convey, as a release, the fee to the grantee, and a subsequent deed from the grantor to another person will not operate to convey the aitfrte land
    But such deihih* tive deed will not operate as a bargain and sale so as to affect the title of such other person, unless he hq,d •notice ¿ &c¡
    The court are therefore of opinion, that the copy of the deed from John Fate to Robert Chapman, cannot be received in evidence as proof of the original deed, the same not having been recorded within the time prescribed by law. And in the opinion of the court, the -justices before whom the same deed was acknowledged, had no authority to take the acknowledgment of a deed to be recorded for safe keeping. The plaintiff excepted.
    9. The plaintiff prayed the opinion of the court, and their direction to the jury, that if the jury are of opinion from the evidence, that Benjamin Tasker, or Benjamin Tasker and Company, had possession, under assignment (K) from John Hurd, of the land and premises mentioned in the deed (M) from John Lacón Israel to Benjamin Tasker and Partners, of the 15th June 1750, at the time the same was executed, then the said deed operates to convey, as a release, the fee to Benjamin Tasker, and the deed to Edward Norwood in 1760 cannot operate to convey the same land.
    The Couet gave to the jury the direction as prayed.
    10. The plaintiff,gave in evidence to the jury the |iajtent, wills, deeds, &c. (A) to (M) inclusive, which last deed (M) the court ruled might operate to pass thejand, if livery of seisin had been made thereon; and that livery of seisin might and ought to be, by the jury, presumed, if possession had gone therewith; or, that if the said Tasker was in possession of the land'mentioned therein at the time the same was executed, then the same might operate as a deed of release; and that the same being recorded under the de-. cree of the chancellor, it will have the same validity, as if it had been recorded within six months, against all persons who do not come within the exception contained in the act of assembly in such case made and provided. The plaintiff then offered in evidence the deeds, wills, &c. (N) to (MM) inclusive. He also gave in evidence the location on the plots in this cause of a tract of land called United Friendship, or The United Friendship, granted to John Larkin on the 1st of. September 16§7, and that the location thereof, as made by the plaintiff, was correct; and lie shewed in evidence to the jury the grant of the said land. He also offered in evidence to the jury, that the several deeds and wills heretofore mentioned, .were all duly executed, and that all the said deeds were recorded in time, except the said deed (E) from John Fate to Robert Chapman, and the said deed (M) from John Lacón Israel to Benjamin Tasker. He also gave in evidence, that the said deeds located on the plots, and the other locations thereon made by the plaintiff, are by him truly located. He also gave evidence that a division or partition had been made between the two devisees of George Fate, the patentee, of the tract of land called Fates his Forbearance; and also, that a division or partition had been made between the devisees, of the lands devised to them by John Israel. The plaintiff further offered in evidence to the jury, that in consequence of the said sale and bond (J) made by John Lacón Israel to John Hurd, the said Hurd entered into the possession of the said 100 acres of land, mentioned in the said bond and condition thereof, and possessed and enjoyed the same until he made the assignment aforesaid (K) to Benjamin Tas-ker and Company, and the purchase money was paid to the said Israel; and that when the said Hurd so assigned his interest therein to the said Tasker & Co. he became the tenant of the said Tasker & Co. and held and possessed the said land as their tenant, and for their use, until some time in the last of the year 1749, when he delivered up the said land and the pos-«ession- thereof), unto the said Tasker & Co. who entered thereupon, occupied and possessed the said land, until some time in the year 1754, without any dispute; and that from that time, until within about ten years past, the said Tasker & Co, have possessed and enjoyed the said land; and further, that the said deed (M) executed by the said John Lacón Israel to the said Ben. jamin Tasker, contains the same land, for the conveyance of which the said bond (J) was given, and was executed by the said John Lacón Israel to complete the title of the said Tasker & Co. therein, and to vest them with a fee simple estate therein.
    
      A died recorded fey decree of the chancello' under the act of 1785 ch 72 >>. 11, to have the same validity, as if it had been recorded in time, against all persons who do not come within the exceptions contained m the act
    
      And the defendants having offered in evidence to the. jury the deed from John Lacón Israel to Edward Nonoood, dated 28th of March 1760, as conveying to the said Norwood the same land included in the said bond (J) and the said last mentioned deed (M,) to the said Tasker, and as giving him a title to the same, the plaintiff proved, that on the debt books the defendants are not charged with any part of the tract of land called Fates his Forbearance; and proved by the assessor of Baltimore county that no such land was given in by the defendants, as belonging to them, to be assessed; and that the lessors of the plaintiff are assessed for the whole of the said tract of land, and pay assessment for the whole thereof.
    The plaintiff prayed the opinion of the court, and their direction to the jury, that under the general expressions used in the said deed to the said Norwood, no land could be intended to pass, except those tracts of land to which the said John Lacón Israel had a right at the time when he executed the deed to the said Norwood; and that it could not he the intent of either of the parties, that by those general words the land should be included and pass, which the said Israel had thus contracted to sell thirty years before, for which he had been paid, and which ten years before he had included in the deed (M) executed by him in 1750 to Benjamin Tasker, and of which the said Tasker, and Hurd from whom he'purchased, had been in possession for about thirty years next preceding the execution of the said deed to the said Norwood. That those general expressions ought not to be construed so as to include the said land contrary to what was the evident intent of1 the parties, as that construction also would be to the injury of rights long acquired by the said Hurd and Tasker, and make the said John Lacón Israel guiity of fraud, and therefore that the said deed to the said Norwood could not be considered as passing the land so included in tjie deed (M) from the said Israel to the said Tasker. v
    Defendants in an action of ejectment, after they have taken a joint defence, are not permitted, at the trial, to sever their defence.
    Chase, Ch. J. The Court are of opinion, that the deed from John Lacón Israel to Benjamin Tasker, can» not operate as a deed of bargain and sale, so as in any manner to affect the title of Edward Norwood, or those claiming under him, which Norwood acquired under the deed to him from John Lacón Israel; that deed operating, in the opinion of the court, to pass the land described and mentioned in the deed from John Lacón Israel to Benjamin Tasker, unless Norxvood had notice of the last mentioned deed at or before the time of the execution of' the deed to him from Israel; and therefore the court refuse to let the deed from Is~ rael to Tasker be read in evidence to the jury as a deed of bargain and sale. The plaintiff excepted.
    u. The plaintiff in this cause, having heretofore 4 ° brought an ejectment for the lands in question, which was at May term 1799, nonsuited after the present action was brought, to wit, on the 24th of September 1800, the lessors of the plaintiff, by their agent William Hammond, entered into an agreement with Samuel Norwood, one of the defendants, “that the plots used in the former ejectment, which was tried between C. Carroll & Co. and E. and S. Norwood, shall be used in the cause now depending between the same plaintiffs and Samuel Norwood, each party having liberty to make such amendments to those plots as they may think necessary. That the admissions of boundaries, proofs, and depositions taken in the former cause between the same parties, shall be received in evidence in the same manner as if they had been taken in the present suit.”
    
      If the adversary possesions of the defendent are not located on the plots, no evidence can be given of them.
    The record of an ancient deed appearing not to have been signed by the grantor, but acknowledged by him, admitted evidence
    Before the jury was sworn in the present action, the said Samuel Norwood objected to the plots made out in this cause being used against him, and prayed that the court would permit him to sever in his defence, •alleging that in consequence of the agreement aforesaid, he had not attended to make any defence on the present plots; which motion was overruled by the court. After the jury was sworn, the said Samuel Norwood again produced the said agreement to the court, and offered to. prove that the defence in this cause, which appears to be a joint ‘defence, was conducted and managed by Edward Norwood, the other defendant, alone; that he the said Samuel Norwood, either by himself or counsel, did not in any manner concern therein. The said Samuel Norwood prayed the opinion of the court, and their direction to the jury, that the plaintiff was precluded under the agreement aforesaid, from recovering any land in the possession of the said Samuel Norwood.
    
    The plaintiffshewed that every location on the plots in the former suit were transferred to the plots in this cause.
    The Couiit refused to permit Samuel Norwood to sever in his defence, and refused to give the direction prayed. The defendant, fSamuel Norwood,) excepted.
    12. The defendants offered to swear witnesses to the jury, to prove that they, the defendants, have been in the exclusive possession, by enclosure by fences, for more than twenty years next before the bringing of this action, of all the lands included within certain lines located, laid down, and designated on the plots returned in this cause, viz. beginning at, &c.
    Chase Ch. J. The court are- of opinion, that as the defendants have not located their adversary possessions on the plots, such evidence cannot be admitted to the jury. The defendants excepted.
    13. The defendants, to support title in themselves to a. moiety of a tract of land called The Wnited Friendship, produced and offered t® read in evidence to the jury, a patent to John Larkin for the said land railed The United Friendship, granted the 1st of September 1687; and also a paper, purporting to be a deed from John Larkin, son and heir of the patentee» to Edward Dorsey, dated the 25th of June 1702; [and the record book in which the said deed is enrolled was also produced, and the defendants offered to read the said deed from the said record book.] It purported to be made between John Larkin and Thomas Larkin, of the one part, and Edward Dorsey, of the other part, for “all that moiety or half part of a tract of land called The United Friendship,” &c* It does not appear to have been signed or sealed by either of the grantors. The name “Thos. Larkin” is signed under those of the witnesses; and it was acknowledged by John Larkin, on the 27th of June 1702, before two justices of the provincial court. There is no mention of the time of recording.
    'Where A, is in possession of land tinder a deed to him. from. B, a copy ofyan ancient deed not enrolled in time, from C to B for the same land, though mis* recited in the deed tfvom. B to A, with the rent roll entries, &e are evidence sufficient for the jury to presume and find a deed from C to B
    A copy of a deed not enrolled in time, made by a clerk under seal of office, is entitled to no more weight or credit, than a copy taken by a private person
    To the reading of which deed in evidence the plaintiff objected.
    Chase, Ch. J. The court are of opinion, that the deed from John Larkin to Edward Dorsey is evidence, and they permit the same to be read to the jury. The plaintiff excepted.
    14. The plaintiff offered to read in evidence to the jury, the enrolment of a deed (E) from John Fate, son and devisee of George Fate, the patentee of the tract of land called Fates his Forbearance, to Robert Chapman; and to prove that a deed, (of which the said last mentioned deed is a copy,) was executed by the said John Fate to Robert Chapman, the plaintiff offered in evidence to the jury the entries on the Rent Rolls in the land office, viz. «100 acres, (Fates his Forbearance,) Robert Chapman from John Fate, 5th March 1715,” &c. Also a deed (P) from Robert Chapman, the son and heir of the said Robert, to Daniel Dulany and Company, as a deed for the same 100 acres of land. And also offered evidence to prove that no other conveyance of any nature or kind was made or executed by the said John Fate to the said Robert Chapman, except the deed (E) of the 5th of March 1715. And also offered in evidence to the jury the Debt Books in and for Baltimore county, in which the said 100 acres of land were charged to The Baltimore Company, consisting of the persons named in the said deed (P) from Chapman to Dulany, & Co. And also offered in evidence the possession of the said Dulany, & Co. from the date of the said last mentioned deed to within seven years last past*, by actual cultivation of a part of the said land des* cribed in the said deeds (E) (P) of the 5th of March 1715, and the 23d of December 1749, under and in virtue of the said title; and that the defendants did not claim any part of the tract of land named in the declaration, as part of Fates his Forbearance', and that no evidence of any nature was produced or offer- • ed on the part of the defendants to prove that the right or title of the said 100 acres, or any part thereof, was in the defendants or in any other person or persons than the said George Fate, John Fate, Robert Chapman, Daniel Dulany and Company, or those claiming under them.
    The defendants offered in evidence the deed from John Lacón Israel, son and devisee of John Israel, to Edward Norwood, the father of the defendants,'dated the 28íh of March 1760, herein before mentioned; and also offered to prove to the jury possession of such part of the land as they have taken defence for on the plots in this cause, in Edward Norwood, the father, in his life-time, and in the defendants since his death, from the year 1757 to the present time, and possession of the same in the defendants at this time;, and that the said Edward Norwood, the father, and the present defendants, respectively claimed and held the same under the said deed from John Lacón Israel to Edward Dorsey.
    
    
      
      
         Duvall and Done, J. concurred.
    
   Chase, Ch. J.

The Court are of opinion, that if the jury find the facts stated by the plaintiff, and that Daniel Dulany and Company have been in possession of the land described in the deed from Robert Chapman to Daniel Dulany and Company, from the date of the deed to within seven years last past, that then the copy of the deed from John Yate to Robert Chapman, with the said facts, are sufficient evidence to induce the jury to presume and find a deed from John Yate to Robert Chapman, for the land described in the deed from Robert Chapman to Daniel Dulany and Company.

Ajudgment entered on a verdict ibr the plaintiff iii ejectment for land described to be* gin at a point (not located on the plots,) to be found by running a certain Une &e being ibr land not described by any particular location on the plots, hut which was included within the plaintiff5» pretensions

The Court are also of opinion, that the said copy is entitled to no more weight or credit than a copy taken by a private person.

Verdict. The jury find, “that the beginning of Yates his Forbearance, the land mentioned in the declaration, is at the ppint to be found by running from the red letter B, as marked on the plots, N. 4¼° W. 160 perches; that from thisjpoi'nt the said land called Fates his Forbearance is 'to be located, according to the courses and distances expressed in the patent for the said land, with an allowance for variation of 4¼ degrees; and the jury find for the plaintiff all the land within the lines of the land called Yates ids Forbearance, as so located.”

Motion by the defendants in arrest of judgment. Reasons: “That no judgment ought to be given upon the verdict, because there is no finding in the said verdict sufficiently certain to authorise the court to give a judgment.”

The motion was continued by the court until the. present term, (October 1801,) when it was withdrawn by the defend ants’ counsel, and a judgment was entered Upon the verdict for the plaintiff, for possession, &c.  