
    Dale vs. Fassett's Lessee.
    Ai'iTSALÍrom Worcester County Court. Ejectment for a tract of land called The Conclusion of Morehuss, otherwise called, &c. The defendant, (the now appellant,) took defence on the plots in the cause for a tract called Red Land.
    
    1. At the trial the plaintiff offered evidence io prove the first boundary of The Conclusion of Morehuss to be at G} as located by him on the plots. And in order to prove title to tiie lands mentioned in the declaration, read in evidence a warrant of resurvey, obtained on the 5th of May 1747, by Archibald Dak, to resurvey a tract of land called Morehuss, stated to have been granted tó James Round ©n the 18Ui of December 1683, for 200 acres. Also a certifícale of resurvey made in pursuance, of that, warrant, dated the 4tb of November 1747, of a parcel of land called The Conclusion of Morehuss, “beginning at a marked red oak, first boundary of the aforesaid Morehuss, and from thence S F, by S 260 poles,” &c. containing 359 acres. Also a patent (hereon granted to Archibald Dale on the 21st of March 1748. Also a deed from Archibald Dole to Samuel Dale, dated the 19th of May 1756, for 236 acres, part of The Conclusion of Morehuss„ beginning the same‘‘at a red oak, the first bounder of the original tract, and from thence,” &c. Also a deed fró.n Samuel Dale to Janies Fasseii, dated the 16th of March 1768, for íhe same 236 acres, and described as in the deed from Archibald Dale to Samuel Dale, and also for a tract of land called Chesnut Level/, containing 46 acresj also a deed from Archibald Dak to John Dak, dated the gd of August 1757, for 150 acres, part of a tract of land called Lied I,csnd. The defendant then read in evidence a patent «-ranted to James Round on the 10th of May 1685, for a tract of lafid called Red Land, containing 300 acres. • Also a patent granted to John Bule, senior.; ami John Bale, junior, on the 1st of June 1/51, fora tract called Red .Land Enlarged, containing 530 acres, being a resnrvey ■ f * óf Bed Land. The plaintiff then offered witnesses íes proté io the jury, that all the land contained within the following liinits, beginning at red E on the plot», theiice with the green streak ib red C, then to bliie figure 3, thence to black C, thence to small letter n, thence to black t; thence to red X, red K and black B, aiid from thence to fed E. designated on the plot3, was unihcloscd woodland, and includes thé land in dispute; He also offered witnessés to prove, that all that part of The Conclusion of Morelmss, in the deed From Samuel Dale to James Passed, the lessor of the plaintiff, as located on the plots by the plaintiff, was ih possession of Archibald Dale, Samuel Dale duel James Fassett, for 60 years and upwards; that John Dale, inspector, was the son of Archibald Dale, and that John Dale, insjmetor, was originally put into tiie possession of Bed Land by his father, -Archibald Dale, and tiiat the said John D’ale held the possession of the said land under his father, Archibald Date\ and by his perniission. That the lessor of the plaintiff had claimed the land in dispute, and forewarned the defendant from tutting the timber. That about the year 1797', (he lessor of the plaintiffhad the land in dispute surveyed and run, according to courses and distances of the deed from Samuel Dale to him; that the pig pen, as located on the plots at figure 3, was put there by Mitchell Gray, who obtained permission for that purpose from the lessor of the plaintiff aiid the defendant. The defendant also offered witnesses to prove, that part of Bed Land, for which he has taken defence, was in the possession of John Dale, junior, (inspector,) under whom the defendant claims, Josiah Dale, his son, and the defendant the son of Josiah Dale, for 60 years and upwards. He also read in evidence the will of John Dale, dated the 13th of December If 80, whereby he devised to iiis son Josiah Dale, in fee simple, “the manor plantation whereon I now live, with the improvements and appurtenances thereto belonging; that is to say, beginning at the bounder of Bed Land, which is the first bounder of the land called Second Addition, so far as t© come in range with the home line of iny tract called Welsh Tract, and from thence running the reverse of the home line of Welsh Tract to the first bounder of Welsh Tracts and from thence, by and with the several lines of Second Addition, to the first bounder.” Also the will of Josiah 
      
      Dale, dated the 14th of October 1794, devising to his soa John Dak “all my lands and appurtenances which I own where I now live, being part of Second Addition, Stripe, and part of Powell's Purchase, to him, bis heirs and assigns, for ever.” And offered evidence to prove, that the land, for which he hath taken defence, is the land described in the will of John Dale, and that Jostah Dale lived on part Of the said land at the time cf making his said will, and until his death. The plaintiff then, for the purpose of proving that John Dale, (inspector,) claimed under the deed to him from Archibald Dale, herein before mentioned, offered to read in evidence a paper, having first proved its execution, purporting to be a bond executed on the 24th of April 1759, by John Dale, (inspector,) to John Dale, senior, in the penalty of £500 current money, conditioned that the said John Dale, (inspector,) “shall and do, well and truly, stand to and abide by such determination and division as Col. Joshua Mitchell, Capt. Adam Brevard, and Bouse Fassett, shall make, of a tract of land called Red Land, situate,” &c. “which said lands, by deeds of conveyance, became the rights of Archibald Dale, senior, and John Pope, and by deeds of conveyance became the rights of the above said parries John Dale, senior, and John Dale, inspector, so that such determination and division by the said Mitchell, Brevard and Fassett, stand good and be final on the same. Whose determination and division shall be ended by the first of June next ensuing the date aforesaid.” To the reading of this paper the defendant objected. But the court, [Polk, Ch. J. and Done, A. J.] overruled the objection, and were of opinion that the paper was legal and proper evidence, and permitted it to be read to the jury. The defendant excepted.
    
      A bond, oxeen frf ed in 1759, by a j>mon th- n chum" ni!’- :he land ii»' dispute, jointly with another, e<m-> thiioird to ubui£ by a divtsv.m. v hich <j‘ rtcim sons shoo'd make; of the land, per* nutted to bo rc.n£ in evidence by ilia pla.nüíf in an 'action of ejecioa ,it, ■wheie the d' fondant claimed linden the obligor in the bond.
    In 1743 a tract ,of land catees (■ was ívraiu. d to A. I), who m l’?.'5n conveyed a pure of that tract by courses ami distance» to S 1) In 1757 A I> heiiiR in possession of a ttuct called J?, ^united to J Il„ Ui ■ K5>5, com eyed a 5 art of that Dave, by c tirsfb ai><| distance» to J jy* i an xit the ianA in the fint men-none d deed was IMMK'ed in ihu:, f l>nvt of the ti act calk d ÜJ, Minch was comeytd te J i>. In tjfcruieni, ¿nought for the tv,,ai called C\ there mus ¡.roofer dOyeajs possi ssiui'i a.m upwards, [>■' A D, s D. and ihi* lessor oí theinam- * tiíf, of tim iand io< ated by ihu phuniiii on tlu* D ois; also p*oofof upwind- ox' 6iu 5 ear» po-sesshm b> J 1), ana ihe di íeiixlant, oí the truer ea!a d H, f«v which defence waa t-)kch'-AVid, time if xt is proved to the jury that the defendant, and iho?<MMH.er whom i.e claim», held and claimed the finid in dispute under A Í), from whom the conveyances were made in 1*56 to S i>9 and in 1757 lo J I>, then there is competent )efg.ii proof to sarisft the fury that ,i I), «t the time of ■'Pakinjj the eomejanf;.* io S 1). had a od urn! suireu m i'1,» d iu.Ie to th" truel*1 of tain! celled C and ¿Í, and that the jtm jury and ought t«* presume a deed or devise io A 1> for the gam; , or that ho ho hi the same hv descent from the ¡ er.im hjvinp; the ie'71! rhylit at.d title tin reto.
    The eom,f. u-fus* d to direct the iarv, tint if .f D vi.s m pos^ssi-m o that part of R, (for which the driendant t»oic defence,; uadi r A J), wlc-n a warrant to r«-sm*ey R was granted to ,í 1) and b' I>, and located by ih -m, and whh-h they obiali.ed „> grant in 17Jl? and the s ¡id possi,sj:on has been re«*»u = la/iy u-ansmiftt d from J ") to the dt-iejt'hmr, they ou¿ht to presa me a deed lor tin) said land /rom A I> to .T I), prior to the dei 0 from \ 1) to i> I>,
    Th'-vt U-i.i*£ no eonoeuml Wyu evidente io prove, that uppu a dispute between S D and .J D, a«“ui tiieir íiiitís» they referred the «ame to arhUsanon, and a line was Settled between them, the court * Ui j^ry fchfcí á i>, and a!¡ idaimmj under hnu¿ arc conuiuded by ¡m a^reenunu -®
    
      2. The plaintiff then offered evidence to prove, that in September 1769, Col. John Poslly and William Stevenson, were called on by Samuel Dale to ascertain the quantity of land contained in the deed to him from Archibald Dale, as located by the plaintiff that they met on the land, and run from the boundaries of Red Land, and The Conclusion of Morehuss, for the purpose of connecting the tracts; and on plotting the same, found the two tracts to interfere with each other; that they found the deed from Samuel Dale to James Fassett, as located by the plaintiff to contain 238-j acres and 14 perches; that they found to lie within tHe part, of Red Land, for -which the defendant takes defence; 18} acres and 6 perches; also found 6 acres and 13 perches' to lay within the part of Red Land located as Thomas Dale’s part allied Land; and that 3f acres and 38 perches were taken away by á tract claimed by Jesse Gray, which, added together, amounted to 8} acres and 14 poles, which deducted left 210 acres. Tliey then added to that quantity the 18} acres and 6 poles; which lay on that part'of Red Land claimed by the defendant, and being added; made the quantity of 228} acres and 6 perches', as being the quantity of laud contained in the deed from Samuel Dale to James Fassett, as located by the plains tiff, after deducting the part taken away by the part of Red Land claimed by Thomas Dale, and the tract of Jesse Gray. The plaintiff then offered evidence to prove, that in the years 1790', 1793 and 1798, James Fassett was as- - sessed and taxed with 228 acres of Morehuss. He also offered in evidence the certificate of survey of Morehuss, as located by the plaintiff’, made for James Round on the 18 th of December 1683, “beginning at a marked red oak standingbn a high piece oflatul, thence,” &c. containing 200 acres. Also evidence to prove, .that Archibald Dale was in possession of Red Land previous to the deed from him to Samuel Dale, and at the time of the execution thereof; and that John Dale, inspector, before the date of the deed to him from Archibald Dale, was in possession of Red Land, by permission and with the consent of Archibald Dale. That the lessor of the plaintiff’, in 1782, applied to counsel for advice respecting his right to that part of The Conclusion of Morehuss, which runs within the "lines of Red Land, and was advised that he had awight to the same. That at the time when the road was reserved as located on the plots, James Fassett claimed a right to the land now-in dispute, and said it was the disputable land; that this was about 6 years ago. He also proved, that John Dale» inspector, under whom the defendant claims,'previous to the deed from Archibald Dale to him, acknowledged that he was in the possession of Red Land by permission of his father, Archibald Dale. The defendant then moved the court to direct the jury, that if they should be of opinion, from the evidence, that Red I .and is correctly located by the defendant, and that that part for which he has taken defence has been in his possession, and the possession of those under whom he claims, since the year 1760, that then the plaintiff is not entitled to recover, and that they must find a verdict for the defendant. 'Fifis direction the court, [Folk, Ch. J. a.nd Bone, A. .1.] refused to give; but were of opinion, and so directed the jury, that if it is proved to their satisfaction, that the defendant, and those under whom he claims, held and claimed the lands in dispute under Archibald Dale, from whom the conveyances were made in 1756,to Samuel Dale, and in 1757 to John Bale, inspector, that in that case there is competent legal-proof to satisfy the jury that Archibald Bale, at the time of making the conveyance to Samuel Dale, had a good and sufficient legal title to the tracts of land called The Conclusion of Ihorehuss and Red Land; and that the jury may, and ought to presume a deed or devise to Jlrchspald Bale for the same, or that he held the same by descent from the person having the legal right and title thereto. The de» feudant excepted.
    8. The defendant then moved the court to direct the jury, that if they should be of opinion, from fhe. evidence, that John Bale, junior, was ip the possession of that part of Red Land, for which the defendant lias taken defence, at the time the warrant of resurvey for Red Land Enlarged, was granted and located, under Jtr chib old Bide, and the said possession lias been regularly transmitted from him to John Bale, the defendant, they ought to presume a deed for the «aid land from .Archibald Bale to John Bale, junior, prior to the deed from him to Samuel Bale, This direction the court also refused to give. The defendant excepted.
    4. The defendant then moved the court to direct the; jury, that if they should be of opinion, from the evidence, that upon a dispute between Samuel Bale and John Bale, inspector, about their lines, they referred the same to arbitration, and that upon a settlement thereof by arbitrators, the line was settled from II to L on the plots, that Samuel Bale, and all claiming under him, are concluded thereby, and that therefore they must find a verdict for the defendant. But the court were of opinion, that there lias been no competent legal evidence produced by the defendant to substantiate the facts alleged by him,, and therefore refused to give this direction. The defendant excepted, The verdict and judgment being for the plaintiff, the defendant appealed to this court.
    
      The cause was argued before Buchanan, Nicholson, Gantt, and Earle, J. by
    
      Bullitt and W. B. Martin, for the Appellant;
    and by
    
      J. Bayly and Whittington, for the Appellee.
   JUDGMENT AFFIRMED.

■ The plaintiff located his claim and pretensions for The Conclusion of Morehuss, beginning at black G, the first bounder of the original tract, then with black lilies and figures 1, 2, S, 4, 5, &c. to G.

The defendant took defence for Bed Land, beginning at black A, then to black B, F, E to A.  