
    
      A. M. Norwood and others vs. William Byrd.
    
    Where, on the face of a deed, the intention to convey a particular tract of land, is clear, but the description, by metes and bounds, is, upon a survey for the purpose of locating the tract, ascertained to be erro* neous,the description by metes and bounds will be.rejected as surplus-age, and the land located so as to cover the tract clearly intended to be conveyed.
    Parol evidence is inadmissable to show that the grantor intended to convey a different tract of land from the one mentioned in the deed.
    
      Before Frost, J. at Darlington, Spring Term,, 1844.
    This was an action of trespass to try title. The report of his Honor is as follows: “ Both plaintiffs and defendant claimed under a grant to John Norwood, dated 2d April, 1792. John Norwood devised the lands in question to his sons, A. M. Norwood and Jesse Norwood, equally, in common. The plaintiffs are the said A. M. Norwood, and the minor children of Jesse Norwood, deceased. The defendant claims under a conveyance from said A. M. Norwood in January, 1832. The issue respects the location of defendant’s land. The figure subjoined represents the land and points of dispute.
    
      
    
    purchase of a parcel of land, the remainder of the Norwood grant, which had not been sold by the grantee to Johnson. The evidence is very clear that they mistook the tract designated as the Harrall tract for the residue of the Norwood grant, supposing that such residue was known as the Har-rall land. A. M. Norwood did not know at the time of the sale that he owned any other land than the residue of the Norwood grant, nor was it known to him or Joseph Nor-wood till some years after, when informed that a parcel of land unclaimed, belonged to him. They went round the line of the Harrall land, with the Norwood grant as a guide, and supposed they had found the lines of the grant in the boundaries of the Harrall land. At the lightwood stake corner, marked E, they discontinued their search for the corners and line, and Norwood, comparing the Norwood grant with the lines traversed, affirmed the Harrall land to be the residue of the Norwood grant. The two. parcels of land lie in the opposite angles of two intersecting lines. Griggs took possession of the Harrall tract, and has occupied it since the purchase. Soon after the purchase he became dissatisfied that his title did not cover his land, and he desired Joseph Norwood to make him a title which would cover it. He spoke, however, of the Harrall land as the land he had bought of Norwood. .
    After the parol agreement for the purchase of the land by William Griggs, Joseph Norwood was employed by A. M. Norwood to draw the conveyance. He described the land in the deed by the lines of the grant, beginning at a pine tree in the southern line at M, to the water oak corner at B, to the pine corner at C, thence to a pine at L, and then “ by an agreed on line, to the beginning pine corner, sepa-' rating the said one hundred acres from the balance of the survey now owned by William Johnson.” The defendant produced in evidence the original Norwood grant, as part ot his title ; and a grant to Richard Jordan, dated November, 1834, for the Harrall land. The plaintiff showed no title to the Harrall land, except some proof of the possession by John Norwood the testator, and by A. M. Nor-wood since his death. The agreed on line, which parts off the land of Johnson from the residue of the grant, is represented by the line KB at right angles, to dotted line L M, described in Norwood’s conveyance to Griggs as the agreed on line.
    The jury were instructed that if Griggs, from whom defendant claimed, supposed he had bought the Harrall tract, but took a conveyance from Norwood of the residue of the Norwood grant, that the deed must control the mistake of fact, and the defendant’s title to the land in dispute be determined by the description in the deed. That the dispute between the parties related to the location of the land described in the conveyance, and by the proof of the location the verdict should be decided. That the location of the defendant’s title in the Norwood grant, so as to cover the locus of the alleged trespass, was supported by the deed describing it as the residue of the Norwood grant not sold to Johnson, the coincidence of two lines and a corner, and the agreed on line within that' grant, though not corresponding in its direction with the description of the deed ; and the possession of the original Norwood grant by the defendant as a part of his title. Against this evidence, the plaintiff’s location of defendant’s title was supported by only part of a line, which separates the Norwood grant from the Harrali land, and by a boundary, (Dubose’s land.) Both of these facts lost much of their influence when it was recollected that the deed of conveyance was drawn by Joseph Norwood, and the description in the deed proved to have referred to the south west line of the Norwood grant.
    In the course of the trial the plaintiffs offered to prove by Joseph Norwood that A. M. Norwood had directed him to convey the Harrali land, which evidence was rejected as contradicting the deed.
    The jury found for the defendant, and the plaintiffs gave notice that they will move the Court of Appeals for a new trial, on the following grounds.
    1. That the plaintiffs proved title to the land in dispute, and the deed of A. Norwood to William Griggs, under which defendant claimed, did not embrace the said land, and it was certainly the plaintiffs’s.
    
      2. That the said deed referred to the tract called the Harrali tract, and not to the land for which the action was brought.
    3. That the deed was shown by the surveyors to be ambiguous, and that it did not embrace the locus in quo, and it was shown by parol that Griggs, under whom defendant claimed, bought the Harrali tract, and went into the possession of that tract under his deed, which, under the doubtful location, was conclusive as to which tract the deed of A. Norwood conveyed.
    4. That when Griggs bought the lands, the lines of the Harrali tract were shown him, and he bought that tract and no other, and did not claim for a number of years the other tract to have been conveyed to him by this deed, although he was present when Jordan re-surveyed it for himself, and occupied it; the said Griggs remaining in possession of the Harrall land to the present day.
    5. That the deed being ambiguous as to the locus, it was susceptible of explanation by parol, and his Honor overruled the evidence of the person who drew the deed, as to what tract was intended to be conveyed.
    6. That a mistake having been shown as to the description of the land, plaintiff offered evidence of such mistake, which was overruled by the Judge.
    7. That the description did suit the Harrall land in some respects, but in no respect did it suit the land sued for, and therefore might have been referred by parol to the former.
    
      Dargan, for the motion.
    
      Sims, contra.
   Curia, per

Frost, J.

The deed of the plaintiff to Wm. Griggs, Jun, under whom the defendant claims, describes the land conveyed as all that plantation or tract of land of one hundred acres, more or less, being the south west end of a three hundred acre survey granted to John Norwood, 2d April, 1792, beginning at S line of said survey, at a pine corner; thence south west to a water oak corner, bounded by land originally owned by John O’Neall, (now estate of Campbell;) thence north west to a pine corner, bounded by land at survey vacant, now Isaiáh Dubose’s and others; thence north east to a pine corner bounded by land formerly of John Norwood, deceased ; thence by an agreed on line to the beginning corner, separating the one hundred acres from the balance of the survey now owned by Wm. Johnson.” The land thus described is embraced within the lines of the Norwood grant, about the location of which there is no dispute. The defendant is in possession of the residue of the Norwood grant, not sold to Johnson, claiming it under the deed from the plaintiff to Wm. Griggs, Jun. and in this action the plaintiff seeks to recover it.

It is contended that the land, described in the deed/ cannot be located so as to cover the residue of the Norwood grant. If the deed had merely described the land conveyed as the residue of the Norwood grant not sold to Johnson, the intention of the parties would have been clear, and no question could have arisen respecting its location; since there is no dispute respecting Johnson’s line nor the lines of the grant. But a discrepancy is produced by the erroneous description in the deed of the- lines and boundaries of this residue. According to the deed the agreed on line would be in a direction at right angles to the actual line, so as to locate the residue on the south west instead of the north west side of the grant. The rules of location permit the courses of lines and boundaries to be rectified, according to proof of the intention of the parties, to an extent quite sufficient to correct this error. Lands have been located in violation of almost every rule. Indeed, location is said to be a question of evidence, and cannot be reduced to fixed' and definite rales. Coates vs. Matthews, 2 N. & M. 99. A correct location consists in the application of any one or all of the rules to the particular case ; and when they lead to contrary results, that must be adopted which is most consistent with the intention apparent on the face of the deed. Colclough vs. Richardson, 1 McC. 167. To give effect to the intention of the parties, the agreed on line described in the deed, may be corrected, so as to correspond with the fact. The location of the defendant’s land, on the residue of the grant, is supported by the proof of the contract to buy that land; by the description of it in the deed as the residue of the grant; by the agreed on line within the grant called for as a boundary; and by the delivery, to the defendant, of the original grant, as the muniment of his title. The location insisted on by plaintiff is exterior to the grant, has but one line by which it is supported, which is common to both the Harrall land and the grant, and by a remote boundary, (DuBose’s land,) to reach which it is necessary greatly to extend a line beyond a marked corner tree, and to vary the courses and distances of every line in the description of the deed.

But the simple question, not involved in technical rules, nor placed beyond the reach of plain practical common sense, is, whether the defendant shall be deprived of his land because the residue of the Norwood grant, so plainly expressed in the deed, and proved to have been the subject of purchase, was imperfectly or erroneously described by metes and bounds. In the construction of a deed, where there is a contradiction in the description of the premises granted, the court may reject part of the description as false, or mistaken, for the purpose of giving effect to the deed. In McNaughton vs. Loomis, 19 J. R. 449, the premises conveyed were described in the deed as lot No. 51, in the second division of a patent, giving the boundaries of an adjoining lot, No. 50. It was decided that the words “ lot No. 51” might be rejected as surplusage, the description being sufficiently certain without these words. The present case is the reverse of that, but to'efiect the plain intention to convey the residue of the Norwood grant, the boundaries may be rejected as surplusage. So a grant of “ all my lands in B, in the tenure of D, which I had by the gift of J. S.” and in truth it doth lie in B, and in the tenure of D, but was not the gift of J. S. this is a good grant, for “whenever there is, in the first place, a sufficient certainty and demonstration, and afterwards an accumulative description, and it fails in point of accuracy, it will be rejected.” If a parish lie in two counties, viz, Berks and Wilts, and one grant all his close called Callis, in the county of Berks, and in.truth the close doth lie in the county of Wilts, _ this is a good grant to pass the close, because the close passes by the name of a full and certain description.” 2 Shep. Touchstone, 247 ; 31 Law Lib. 45.

The proof of the contract, and the description, in the deed, of the land intended to be granted, as “ a tract of land of one hundred acres, being the southwest end of a three hundred acre survey, granted to John Norwood, separated, by an agreed on line, from the balance of the survey now owned by William Johnson,” is a “ sufficient demonstration and certainty” of the land granted, so as to pass the land by the name of the residue of the Norwood grant, “ as a full and certain description,” and the accumulative description of it, by lines and boundaries, which fails in point of accuracy, may be rejected. But it is insisted that the entry of the defendant on the Harrall tract, and keeping possession, claiming it under his deed, is a practical construction, which he may not gainsay. The defendant remained in possession of the Harrall tract under the continued misapprehension derived from the piaintiff’s own acts and declarations, that it was the residue of the Norwood grant. Finding that the description in the deed did not protect his possession he requested a deed which should describe the land, but did not get it. To permit the plaintiff to eject the defendant from the land sold to him, and put him off with a tract to which the plaintiff has shown no right or title, on a presumption of acquiescence, would be to give the plaintiff an advantage from his own wrong, and a gross injustice against the proof to the contrary, furnished by the deed; it cannot be presumed that the plaintiff intended to sell, and that defendant acquiesced in the purchase of, land to which the plaintiff had no title. ,

The fifth and sixth grounds relate only to the offer to prove,'by Joseph Norwood, that the plaintiff had directed, him to convey the Harrall land in the deed. Such proof would have contradicted the deed, and was, therefore, inadmissible.

The motion for a new trial is refused.

Richardson, O’Neall, Evans and Butler, JJ. concurred.  