
    *Richardson v. Carey and Others.
    December, 1823.
    Patent — Land Included — Evidence — Field Notes.— Under what circumstances, the field notes oí a surveyor are proper evidence, that a particular piece of land is not included in a patent.
    Evidence — Witnesses—Competency—Interest,—A witness is competent, if the record in the , suit in which he testifies, cannot he given in evidence for or against him, in any future suit to which he may be a party.
    Same — Same—Same—Release ot Interest. — The interest of a witness may be released by the party requiring his testimony, and his competency restored.
    This suit was brought originally in the Chancery Court of Staunton, and thence removed to the Chancery Court of Winchester.
    Richardson filed his bill stating, that in the year 1788, he purchased of a certain J. D. Cares’’, at that time residing in the State of Maryland, a certain tract of land in Frederick county, Virginia, granted to the said J. D. Carey, by a patent from Lord Fairfax, dated February, 1762, according to the metes and bounds therein particularized, supposed to contain 406 acres, for which he contracted to pay 5171. for the entire tract, whatever actual quantity there might be upon survey; as appears by an agreement in writing, annexed to the bill; that the same writing will shew, that the complainant has paid the purchase money: that the parties afterwards procured a survey to be made of the same land, to ascertain the actual quantity in the tract; upon which survey, by the mistake of the surveyor in running the lines, a considerable quantity of the land purchased as aforesaid, and embraced in the original grant, was not included in the said survey; and a deed executed to the complainant by the said Carej’, according to the survey, omitted a part of the land included in the grant to Carey, and by him sold to the complainant: that this mistake was not discovered before the death of the said Carey; otherwise, the complainant has no doubt, that the said Carey would have corrected it, and conveyed to the complainant, all the lands according to the calls of the original grant: that a certain Henry W. Baker, in *his own right, and the same Henry and John Baker, executors of Henry Baker deceased, are in possession of the land in question, under a grant from the Commonwealth, subsequent to the grant to Carey before-mentioned, the said Baker having procured the said grant, by fraudulently 'setting forth that the said land was vacant and unappropriated, well knowing that the same was embraced by the grant to Carey. He’ therefore prays that James and George Carey, heirs and legatees of R. D. Carey deceased, Henry Baker in his own right, and the said Henry and John Baker, executors of Henry Baker deceased, may be made defendants in this suit: that they may be compelled to convey to the complainant, the tract of land according to the calls of the patent to the said Carey; and that the defendant Baker, may deliver up possession in the said land, and account for the rents and profit^ of the same.
    Annexed to the bill, is the receipt of J. D. Carey mentioned in the bill, dated August 14, 1788, for 5171., it being in full for a tract of land which he sold to the said Richardson, lying on the head of Opecken Creek, &c. granted by Lord Fairfax to the said J. D. Carey, for 400 acres, &c.
    An order of survey was made
    Henry W. Baker states, in his answer, that he does not admit the terms of the alledged contract between John D. Carey and the complainant; and therefore, he requires strict proof, not only of the receipt aforesaid, but of his title in every other respect: that he is informed that the said receipt and deed bear date on the same day; and if so, it seems very singular that the description of the land should be so variant; and indeed it creates some doubt of the correctness of the transaction. He contends that he is the owner of the land in dispute, and trusts that he shall be able to establish his right when the survey shall have been made in this cause, without which it would be very difficult, if not impossible, to explain his pretensions. tie *further states, that he and those under whom he claims, have been in possession of the lands now claimed, at least 48 years; and he relies upon being able to prove a possession in those from whom his father claims, for more than 50 years before the issuing of the subpoena in this case. He, therefore, relies upon the act of limitations. He also submits the question, whether the Court has jurisdiction in this case, which he contends is nothing more than a writ of right brought in a Court of Equity.
    John Baker, one of the executors of Henry Baker deceased, filed his answer, stating, that he does not, in his character of executor, hold or claim title to any part of the land claimed by the plaintiff; and as he is not charged in the bill, as claiming any part of the said land, in any other character, he is advised that he need not answer further to the allegations of the said bill, &c.
    Henry W. Baker, by an amended answer, denies the legality of the complainants’ attempting to prove that the deed from Carey to him comprehends more land than it actually does convey; that in addition to the patent and deeds already produced, he relies upon a patent from Lord Fairfax, for 976 acres, and another from Lord Fair-fax’s office; the former having issued to Isaac Perkins, and the latter to Charles Perkins; that since he filed his former answer; he has discovered tire field-notes of Thomas Rutherford, formerly Lord Fair-fax’s surveyor, by whom John D. Carey’s survey, under which the complainant claims, as also, the survey of the 67 acre tract, under which the respondent claims, and Moorfield’s survey, adjoining Carey, were all made; that Carey’s survey appears to have been made April 3rd, 1761, and the two others, the next day; that Samuel Mer-ifield and John Lupton, who owned an adjoining survey, were chain-men; and that the Rev. John Hogg and Charles Perkins were pilots on both days. These field-notes the respondent offered as evidence on his behalf, and prayed that copies of them might be received as evidence, when duly proved.
    *The deposition of Col. Van Rutherford states, that the field-notes were contained in a memorandum-book of his deceased father, Thomas Rutherford; and, he believes, were entirely in the handwriting of the said Thomas Rutherford, (except some names written in and near the back of the said book;) that he found the note-book in question, among his father’s papers after his death, and it was among his other field-notes for many years before his death.
    The depositions of Hamilton, Lupton, Perkins, and Baker, were taken to prove, that the lines and corners, by which the defendant claimed, were the true ones. The complainant objected to these depositions as incompetent; the two first, because they claim land by the same lines; the two last, because they were vendors, under whom the defendant claims. The defendant had released the witness Baker.
    James Beatty proves, that the boundaries, as asserted by the defendant, were those by which Richardson bought of Carey; and, that Richardson told him he bought of Carey by the acre.
    Hodgson and Haymaker prove the boundaries; and, that a line-fence was standing on the line claimed by Baker, before Richardson’s purchase of Carey, viz: as early as 3 786.
    The field-notes, authenticated by Van Rutherford, are in exact coincidence with the courses and distances of the patents, except in a single instance, where there is a small difference, evidently the effect of mistake in copying.
    John McPherson proves, that he was present at the contract between Richardson and Carey, and he understood that Richardson was to have all the land the said Carey held under a patent, which was then produced; but, he has no recollection of the contents of the patent, except, that it was said to contain that tract of land, in quantity about 100 acres.
    The Chancellor dismissed the bill of the plaintiff, from which decree he appealed to this Court.
    *Wickham, for the appellant.
    Tucker and Heigh, for the appel-lees.
    For the appellant, it was contended:
    1. That the field-notes could not be received to contradict a survey. They are not, in fact, field-notes, but mere copies of the surveys made out by Rutherford. Richardson bought of Carey the whole tract.
    2. Perkins and Baker were incompetent ■witnesses, because they were vendors, under whom the defendant claims.
    For the appellees. The objections to Hamilton, Lupton and Perkins, as witnesses in this cause, are all answered by the case of Baring v. Reeder, 1 Hen. & Munf. 1-54, in which it is finally settled, that a witness is competent, unless he is interested in the event of the cause in which he is called to testify. As to the objection to Baker, his competency is restored by the release of all demand, by the vendee.
    As to the field-notes, they were admissible evidence, as will appear from Phillips’s Evidence, c. 7, § 7, p. .183-398, and the cases there cited. It is said, however, that they are not field-notes, but copies of surveys. But, a survey is always accompanied by a plat, which is not the case here.
    The evidence of Bartges ought not to have been received, to prove Carey’s signature to the receipt to Richardson, without proof of the hand-writing of the subscribing witness. Peake’s Evidence, p. 97-100.
    Again. Perkins, and those under whom he claimed, were in possession; and, therefore, the act against buying pretensed titles, applies to the purchase by Richardson of Carey.
    There can be no doubt, upon all the evidence taken together, that the patent to Carey did not embrace the land in question, and 1hat, therefore, it was open to location by Baker.
    *December 8.
    
      
      Evidence — Witnesses—Competency—interest. —As a general rule, a witness is competent, if the proceedings in the cause cannot be used as evidence for him, though he may entertain wishes on the subject and even have occasion to contest the same question, in his own case, in a future action. As laying down this rule, the principal case is cited in Stevens v. Bransford, 6 Leigh 353. To the same effect, the principal caséis cited in Masters v. Var-ner, 5G-ratt. 174; Clements v. Kyles, 13 Gratt. 477. In Masters v. Varner. 5 Gratt. 174, it was held that the interest which will render a witness incompetent is an interest, not in the question, but in the result of the suit. See further, monographic note on “Witnesses” appended to Claiborne v. Parris, 3 Wash. 146.
    
   JUDGE BROOKE,

delivered the opinion of the Court:*

The Court is of opinion, that the field-notes objected to in the argument, were proper evidence, under the circumstances of this case; and, that the evidence on the part of the appellees, excepted to by the appellant’s ancestor, was competent evidence, under the authority of Baring v. Reeder, 1 Hen. & Munf. 154, and other cases in this Court. On the merits, the Court is of opinion, that the land in controversy was not included in the patent to Carey, under whom the appellant’s ancestor claimed; and, that as to the boundary, the decree of the Chancellor is correct. For these reasons, without deciding any other question in the cause, the Court is of opinion, that there is no error in the said decree; therefore, it is decreed and ordered, that the same be affirmed, and that the appellant do pay unto the appellees their costs, &c.  