
    
      Norvell v. Camm and Others.
    
    December, 1823.
    Demurrer to Evidence — Joinder—When Compelled.— In what case a Court of Law should compel a party to join in a demurrer to evidence.
    Same — Same — Excuse for Failure to Join — Sufficiency. — Where an objection is made to a demurrer to evidence, thatthe testimony of awitnesshas not been correctly taken down, and the witness himself has left the Court, so that he cannot correct the supposed error; this will not be a sufficient excuse for not joining in the demurrer, unless the error complained of is stated, and it also appears that it would affect any of the questions to be decided by the Court, on the demurrer.
    Writ of Right — Count—Identification of Land -Sufficiency. — If any portion of the land described in the count in a writ of right is included in the patent under which the demandant claims, it is sufficiently identified,
    This was a writ of right brought by Norvell, the appellant, against John Camm and wife, and John Warwick and wife, on the 24th September, 1813, to recover 433 acres of land in Amherst, held by the tenants, Camm and Warwick, in right of their wives, the daughters a,nd heirs of Thomas Powell, deceased.
    The count, plea and replication, are regularly filed, and the mise joined, in pursuance of the act of Assembly.
    The cause came on for trial at the September term of Amherst Court, in the year 1813, when a general verdict was found for the tenants, and a judgment rendered in their favor, from which the demandant appealed; an exception having been taken by the demandant, to a,n opinion of the Court, given by way of instruction to the jury, during the trial.
    The tenants’ counsel, on the trial, had moved the Court to instruct the jury, that a patent, under which the demandant claimed, was void, inasmuch as it was founded on a land-office treasury warrant, entered on land which was not at the time waste and unappropriated; and to shew, that the land was not so waste and unappropriated, he produced a patent for a larger tract, embracing the same land, which had been issued to James Christian, John *Christian, and William Brown, on the 10th September, 1755; also, a judgment of the General Court, pronounced in April, 1774, declaring the land aforesaid to be forfeited, and vested again in the Crown, and that John Christian and Charles Christian, (sons of one of the patentees,) were the first petitioners therefor, and had prosecuted their petition with effect; he also produced regular conveyances from John and Charles Christian, the petitioners, down to Powell, the ancestor of the female tenants. The Court, upon these facts, was of opinion, that the demandant’s patent was void, and so instructed the jury.
    A Special Court of Appeals, before whom this case was tried, in December, 1818, 6 Munf. 233; (see also, 2 Munf. 257,) reversed the judgment of the Superior Court of Law, on the case made by the bill of exceptions, declaring that it was not competent, at law, thus to impeach the de-mandant’s patent. And they remanded the cause for a new trial, with directions that the evidence, which had been offered by the tenants, should not be again admitted.
    The cause came on again to be tried at the April term of the said Superior Court, in the year 1820, between the same parties, except John Camm, one of the tenants, who was dead, when the jury again found a general verdict for the tenants, and judgment was rendered in their favor. . From this judgment, the demandant again appealed.
    There are two bills of exceptions filed upon the last trial:
    The first is by the tenants, for this cause.
    After the tenants had introduced evidence to prove very long possession of themselves, and those under whom they .claimed, and other facts and circumstances, 'on which they rested their title; the de-mandant offered in evidence, the record of the proceedings of the former District Court of Charlottesville, upon an ejectment therein decided, in which the same Camm and wife, and Warwick and wife, were plaintiffs, and the same Reuben Nor-vell was defendant, and in which a special verdict had been found, ascertaining the following things:
    *1. That a patent issued to James Christian, John Christian, and William Brown, on the 10th September, 1755, for 3,926 acres of land; which patent is found in haec verba.
    2. That, before the year 1765, James and John Christian, two of the patentees, died; the land not having been divided.
    3. That, after the death of said James and John, two of the sons of John, petitioned the General Court for said land, as forfeited for non-payment of quit-rents; on which petition, a judgment of the General Court was rendered, on the day of April, 1774, which judgment is found in haec verba.
    4. That, on the 30th October, 1777, the petitioners John and Charles Christian conveyed 933 acres, part of said patented land to James Grisson, by deed found in haec verba.
    5. That, on the 21st August, 1787, the said James Grissom, conveyed to Thomas Powell 433 acres, part of the said 933; by deed in haec verba.
    6. That the land mentioned, in the declaration in ejectment, is the same 433 acres conveyed by Grissom to Powell.
    7. That the wives of the plaintiff’s lessors, were the daughters, and only lineal descendants of the said Thomas Powell, who departed this life, intestate, on the day of 1788.
    8. That the said lessors, and those under whom they claim, had been in undisturbed possession of the lands, in the declaration mentioned, from the year 1775, until November, in the year 1800; when Norvell entered upon the possession of the wives of the lessors, and ousted them.
    9. That the lessors, and those under whom they claim, had regularly, until the present day, (the day of trial,) paid the taxes to the Commonwealth, upon these lands.
    10. That the defendant Norvell, had obtained a patent including about 330 acres of the land in controversy, founded on a Land-Office Treasury Warrant, en-
    71 tered with the surveyor *of Amherst county, on the 4th day of September, 1794, which entry they find in haec verba.
    11. That he surveyed said land, on the 27th November, 1795, by a survey, which is found in haec verba. The patent dated 3d November, 1797, is also found in haec verba.
    12. That the original patentees, or their survivor or survivors, remained in the possession of the lands mentioned in the declaration, from the day of 1761, till the petitioners obtained possession thereof.
    13. That the defendant Norvell had remained in possession from the time of his ouster aforesaid, till the time of the verdict.
    This record was offered by the demand-ant, as he states, in the bill of exceptions, for the following purposes:
    First, to rebut any presumption, that a patent for the land in controversy had issued to Rockyrun John Christian, a son of John Christian, who, the demandant contended, was one of the patentees.
    Secondly, to repel the presumption that the land granted as aforesaid had not reverted to the Crown. And
    Thirdly, to repel any presumption which might arise from evidence afforded by the tenants, to prove that the land was claimed by John Christian, the father of John Christian of Rockyrun, after the year 1774.
    The record was objected to by the tenants, both on the ground that the special verdict purported to prove matters of record which were susceptible of higher and better proof, and upon the general ground, that the said record was in no respect proper evidence in that action.
    The Court overruled the objection, and permitted the evidence to be given for the purposes above-mentioned.
    The second exception is by the demand-ant; for this cause:
    The demandant’s counsel, on the second day of the trial, tendered to the Court a demurrer to the evidence, alledging that it contained all the evidence which had been given on both sides; in substance as followeth:
    On the part of the tenants:
    1. The testimony of James London, examined in Court, who proved, that he had been acquainted with the land in controversy ever since he knew any land, and that he was then 87 years of age; that the land had been settled and improved s'everal years before Braddoclc’s defeat, which was in 1755; the land was then claimed by a man named John Christian, and was settled and improved, in his name and for his benefit, by a man sent there for that purpose; that there were successive tenants on the land from that time till the year 1763; sometimes poor persons occupying the land., as the witness understood, by the permission of said Chris'tian, and sometimes the overseer and hands of the said Christian; that he remembers particularly the said John Christian’s two sons, Charles and John, living on the land, within the period aforesaid, as their father’s overseers, and making crops thereon for him; that he had, within the same period, seen the collector of the revenues going to'the land to collect the public dues, but did not know whether they were paid or not, but that there was generally property enough on the land to pay them; that about the year 1763, the said John Christian broke up his quarter on said land and removed his hands; after which time the land was in possession of different tenants; that he never heard of any right, adversary to that of John Christian; that some time afterwards, Jno. Christian died, and then his sons, Jno. Christian of Rockyrun, and Charles Christian, who had been his overseers, as above stated, claimed said land, but by what title the witness knew not; that he had understood that said John of Rockyrun and Charles, sold the land to a man who sold it to the ancestor of the present tenants, and that he never heard of any claim to said land, adverse to that of the said Christians, and those who claim under them, until the present demandant set up a claim thereto.
    2. The testimony of John Christian, who, being examined in Court, swore, that he became acquainted with the land in controversy in 1760, when it was occupied
    as a ’-‘quarter by John Christian, the father, mentioned in James London’s evidence; that in that year the quarter was broke up, and the land put into the possession of sundry tenants, claiming under said John Christian, who, he believes, held it every year, till the year 1773; that in that year John Christian, the father, being dead, John Christian of Rockyrun, his son, told the witness he believed the land was lost, that he expected to get it, and for that purpose had filed a caveat or petition; that said John of Rockyrun then requested the witness to take possession of said land for him, the witness expecting to buy it of said John; that the witness in ’73 went upon the laud, and finding it out oí repair, did not occupy it himself, but put another tenant oil it for said John Christian of Rockyrun; that afterwards, saidjohn Christian of Rockyrun told the witness, as he thinks, that he had obtained the land, and had got a grant, or patent, or some such thing therefor; that said land was after-wards _occupied by the tenants of saidjohn Christian of Rockyrun, till he sold the same to a man named Grissom, who took possession thereof under the purchase from him, and continued in possession until he sold it to Thomas Powell, the father of the tenants, who some time after-wards died; that he had understood that the land in controversy, with other land to a considerable amount, had been taken up some years before the witness knew it, by the said John Christian, the father, together with James Christian and William Brown, the latter of whom survived the other two; that when John Christian of Rockyrun told the witness he supposed the land was lost, the witness supposed he meant it had been lost by the non-payment of quit-rents; and that John Christian, the elder, at his death, had several children other than John of Rockyrun, one of whom, to wit: William, was the eldest son, died about the year 1808.
    3. The testimony of Walter Christian, who, being examined in Court, swore, that he had known the land in controversy about 35 years; he had known it in the possession *of Grissom, of Thomas Powell, the ancestor of the tenants, of the tenants themselves, since the death of Powell, and also in the possession of the demandant; whether as tenant or claimant, he did not know.
    4. The testimony of Nelson Crawford, who swore that he knew Thomas Powell, the father of the tenants, who was in possession of the land in controversy, and who died about the year 1789, or 1790, intestate, leaving only two children the present tenants, his heirs at law, then infants of very tender years, the eldest about 6 years old.
    5. The commissioner’s books of the county of Amherst, shewing that from the year L787, at least, up to the present day, the land in controversy has been regularly charged to the tenants, and those under whom they claim; and proof that the tenants, and those under whom they claim, have always been fully able to pay all public dues on said land, and that from the year 1787, there has always been property enough on said land to pay the taxes.
    On the part of the demandant:
    1. The record of the proceedings, in ejectment, above-mentioned.
    2. A patent, for 669 acres of land, granted to the demandant by virtue of a Land Office Treasury Warrant, surveyed in 1795; the patent dated 3d Nov. 1797.
    3. Another patent for 798 acres, dated 12th June, 1813, founded on a Land Office Treasury Warrant, surveyed 28th February, 1804.
    4. A judgment of the General Court, on the petition of John Christian and Charles Christian, declaring a grant issued to James Christian, John Christian and William Brown, for 3,986 acres of land in the county of Amherst, formerly Albemarle, on the waters of Rockyrun and Porridge Creek, to be forfeited for non-payment of quit-rents, and the land re-vested in the Crown, and certifying Jolm and Charles Christian to be the first petitioners, &c.
    5. A witness, John London, who stated, that he had been present at several surveys which had been made of *the lands in controversy; that he was well acquainted with the boundaries of the patents procured by the demandant, and that he believed that the said patents embraced all the land in controversy; and that the same were now in possession of the tenants; and that he considered the annual value of the land was 250 dollars.
    6. An entry for 990 acres of land, in the name of John and Charles Christian, made October 14, 1794; and the further evidence of said London, who swore, that the entry might or might not embrace the land in controversy; but that he believed the whole of it was within the patent of James Christian, John Christian, and Brown.
    7. Another entry in the name of Charles Christian, for 1000 acres of land, made September 8, 1794; which entry appeared to have been transferred to John Christian, and surveyed for him; also, the evidence of the «same John London, who swore that he believed the whole of this entry to lie within the patent to. the Christians and Brown, above-mentioned, but that it might or might not cover the lands in controversy.
    8. A paper signed John Christian, and Charles Christian, and dated October 28, 1795, authorising the assignment of an entry within the bounds of Christians’ and Brown’s patent, to Charles Christian; and the testimony of a subscribing witness thereto, proving- his hand-writing as wit'ness, but knowing nothing of the execution of the paper, or who are the parties to it.
    The demurrer, containing this statement of the evidence, was offered; and the tenants’ counsel refused to join in it, for the following reasons:
    1. Because they did not admit, that the evidence of James London had been correctly taken down in the demurrer; it having been written on the second day of the trial, though the witness, who had been examined on. the first, had been discharged from Court, by the consent of both parties, on account of his age and infirmity.; no intimation then having been given by demandant’s counsel, *that they meant to demur to the evidence; though the tenants had gone through the whole of their testimony, and the demand-ant had examined the greater part of his.
    2. That as the tenants would contend, upon the evidence offered by them, that the jury might infer a patent, to some one of those under whom they claimed, the evidence ought not to be demurred to, unless the demandant would admit the fact, which it was the tendency of that evidence to- prove, to wit: that there was such patent; which fact the demandant refused to admit.
    3. Because the demandant has offered evidence to repel that offered by the tenants, the truth of which evidence, the tenants do not admit. And
    4. Because'the tenants do not admit, that the demandant has proved any title whatever to the land in controversy; they contesting both the credit and sufficiency of the proof to show that his patents cover the land in controversy.
    The demandants’ counsel insisted on the tenants’ joining in the demurrer, alledging:
    1. That they considered, that the demurrer contained the whole evidence on both sides.
    2. That the discharge of the witness was assented to by them on his declaration that he could hardly get out of the Court-house, and that the tenants’ counsel had his deposition; and because, at the time of his discharge, the evidence not being finished, they had not then concluded to demur.
    3. That the demandant then offered to send for the witness, James London, who lived about eight miles from the Courthouse, if the cause could be continued until the next day; or to suffer the Court to make any change they thought proper in the statement of the evidence of said London, if they thought it not correctly stated.
    4. That the other objections made by the tenants’ counsel were of a legal nature, to be decided by the Court. And
    *5. That the only difference between the counsel as to the testimony of James London was, whether he spoke of the sale being made, and title claimed by John and Charles Christian, or by John only.
    The Judge not being able to decide the difference between the counsel as to the evidence of James London, his memory not serving him sufficiently therefor, and it being proved that the said John London is probably too unwell to attend the Court again, and deeming it improper to compel the tenants to join the demurrer, the Court refused to compel him to join: And to this opinion, the exception was taken.
    On the next day, the demandant moved for a new trial, upon an affidavit, that since the trial he had recollected a witness, who could prove some declarations of John and Charles Christian.
    This motion was overruled.
    Stanard, for the appellant.
    The decision of this very case in the Special Court of Appeals, 6 Munf. 233, is to be regarded, not merely as a precedent, but as giving the law which is to govern this case. But the inferior Court, by refusing to compel the tenants to join in demurrer, and permitting the jury to render a general verdict, left them at liberty to impeach the patent of Norvell, by any presumptions and inferences that they might please to draw. Thus the consequence, which the Court intended to prevent, would be incurred.
    The circumstances, leading to the presumption of the existence of a patent, are proper for a Court and not a jury. It is like the case of evidence of declarations in extremis, where the Court and not the jury are first to decide whether the party was in extremis or not. So in the case of a lost paper, the Court must first be convinced that the paper once had an existence, before evidence can be given to- the jury of its contents.
    *This doctrine is fully confirmed by a case in Pennsylvania, 6 Binney, 416.
    But, if the judgment of the Special Court does not preclude the tenants from going into this evidence, the decision of the Superior Court was wrong, upon principle. The evidence of the tenants, goes to prove a possession from the year 1755. This possession was not regular and uninterrupted, but broken by the judgment of the General Court in the year 1774, declaring the land to be forfeited for non-payment of quit-rents; and the possession of the tenants after that period, was founded on the destruction of the first title. The evidence can only lead to the patent in 1755, as the source of the subsequent possession; and as that patent has been defeated by the judicial proceedings above-mentioned, and the decision in this very case, in the Special Court, the tenants cannot derive any support from that evidence.
    The first reason, assigned by the appel-lees for not joining in demurrer, is, -that they do not admit, that the testimony of James London was correctly taken down. But, if there were any error in it, the fault cannot be imputed to the appellant more than the appellees, as he was' discharged by consent of both parties, and the want of recollection of the Judge ought not to prejudice the demandant. Besides, it is not shewn that the error complained of, would in any manner affect the decision of the cause.
    Second objection. As the tenants would contend, upon the evidence offered by them, that the jury might infer a patent to some one of those under whom they claimed, the evidence ought not to be demurred to, unless the demandant would admit the fact, which it was the tendency of that evidence to prove, &c.
    The answer to this objection has been given already. It was the province of the Court, and not the jury, to infer the existence of a patent. As the question belonged to the Court, and not the jury, the rule can have no application, that every inference, which the jury might draw, should be admitted by the demurrant.
    *Third objection. The evidence, offered by the demandant and the tenants, is conflicting.
    This objection admits of the same answer as the preceding. The difference between the witnesses is unimportant; and there is no ground for impeaching the credit or sufficiency of the demandant’s evidence.
    Fourth objection. This relates to the credit and sufficiency of the demandant’s evidence, to prove that his patents cover the land in controversy.
    As to the point stated in this objection, the parties are directly at issue, and it being a question for the Court, the tenants ought to have been compelled to join in demurrer.
    The Court were right in admitting the record in ejectment in evidence, in this cause. It was a suit between the same parties and for the same subject matter. The rule is, that a record is proper evidence between those who are parties or privies. The facts found in that action, prove incontestibly that the possession of the tenants, and those under whom they claim, was by virtue of the patent of 1755, and of the judgment of the General Court, and cannot raise the presumption of any other patent.
    Lastly, if the Court was right in refusing to compel the tenants to join in demurrer, they erred in refusing to grant the demandant a new trial. The verdict was clearly against evidence; and the objection made to the testimony of James London, if good, would only prove the propriety of affording the demandant an opportunity, to have his testimony taken again, under more favorable circumstances.
    Johnson and Wickham, for the appellees.
    The tenants have strictly obeyed the decision of the Special Court. They have not brought evidence to prove that the land was not waste and unappropriated, at the date of the patent in 1755, nor did they rely upon the instruction given by the Superior Court, on the first trial. They merely offered evidence of long possession in themselves, ^payments of quit-rents, &c., to lead to the presumption of a prior patent.
    It is said, that the Court erred in refusing to compel the tenants to join in demurrer to evidence. But, this decision may be supported, on many grounds.
    1. Because the demurrer did not set forth all the evidence, which is decided to be necessary, in the case of Hoyle v. Young, 1 Wash. 150, in this Court. A portion of the evidence of James London is not contained in the demurrer.
    It is objected, that the Judge did not decide what that evidence was. To this it may be answered, that it was not the duty of the Judge. It was a matter of fact. The practice of the Judges in England at nisi prius, to take notes of the evidence, does not exist in this Country. It is a mere practice not required by the general principles of law. Here, the witness is always appealed to in a question about his evidence; and the demandant, having consented to the discharge of the witness, cannot take advantage of his absence. The very consent of the demandant to the discharge of the witness, is a waiver of his right to demur.
    3. Because the evidence was circumstantial, conducing to a presumption of the existence of a patent, and therefore proper for the consideration of a jury.
    The proposition on the other side, that it was the province of the Court, is denied to be law. The case from Binney^ Reports, 6 Binney, 419, is an extra-judicial opinion, and at variance with the decisions in Virginia. Hardaway v. Manson, 3 Munf. 330, and Hollingsworth v. Dunbar, 5 Munf. 199, prove, that a Court cannot instruct the jury as to the sufficiency of evidence. The true principle is, that the Court must decide, what evidence is proper to go to the jury to raise a presumption; but, when the evidence is admitted, the subject is under the entire control of the jury.
    A demurrer to evidence is never proper, where there is any doubt as to the facts; but the party demurring must *admit all proper inferences from the facts. Co. Lit. 73, a; 5 Co. Rep. 104, Baker’s Case. The case of Cock-sedge v. Fanshaw, Doug. 119, decides, that the jury only can infer facts from facts or from evidence. To the same effect, are the cases of Gibson & Johnson v. Hunter, 3 H. Black. 187,’ and Wright v. Pindar, Allen’s Rep. 18. No case can be found, where any fact remains in doubt, and a party is compelled to join in demurrer.
    This demurrer presents numerous questions of fact. 1. As to the point of possession, and whether that possession was uninterrupted. 3. Whether quit-rents were paid. 3. Under what right the tenants held; whether their possession was to be referred to the patent of 1755, 1775, or to some other patent. This was a question of fact to be left to the jury. 4. Whether the entries proved by the demandant, were made on the land in controversy. 5. Whether the land spoken of in the special ^verdict, was the same with that demanded in the suit. 6. Whether the de-mandant is the same Reuben Norvell to whom the patent issued. 7. Whether the demandant’s patents covered the land in controversy. The identity of the land can only be proved by admission, or by an actual survey. London’s evidence, stating his belief, was a question for the jury to weigh. 8. Whether the patent of 1755 was ever forfeited. 9. Whether a patent had ever issued to the tenants, or those under whom they claimed. This was a question for the jury; because, if they had found a continuing possession under the patent of 1755, of more than fifty years,- the title of the tenants would be undoubted.
    It may be objected, that the maxim of nullum tempus would render the possession of the tenants ineffectual against the Commonwealth. But, the first case of Norvell 'v. Camm, 2 Munf. 257, decides, that a possession of twenty years would avail in ejectment against the rights of the Commonwealth; and if so, a possession of fifty years must equally bar those rights in a writ of right. The principle is the same in both cases.
    *A tenth reason is, that a jury might have presumed a patent to John Christian and those under whom he claimed. The principles of presumption are collated in Phillips on Evidence, p. 124; see, also, 11 East, 488, Goodtitle, lessee of Parker v. Baldwin, and their application to this case is direct. Courts have never fixed the shortest time within which a patent sfcall be presumed. It depends upon circumstances, and therefore proper for a jury. _
    _ This principle is fully decided in the case of Archer &c. v. Saddler, in this Court, 2 Hen. & Munf. 370. This presumption ought to be favored in this country, where titles are not as clear as in England; and the inclination of the Legislature on this subject, is strongly indicated in the general land law, 1 Rev. Code, 330.
    The special verdict cannot be received in evidence; for, it is a well established rule, that no matter of record can be proved, except by the record itself, unless you lay a foundation for the evidence, by proving the loss of the record. But, here the patent is only proved by the verdict.
    The judgment of the General Court gave the petitioners an exclusive right to take out a patent, to which right there was no limitation.
    The portion of the demandant is uncertain, and therefore it would hare been improper in the Court to compel the tenants to join in the demurrer to evidence.
    It is a rule, that the demurrant should admit all the facts on which the opposite party relies; and all disputed facts relied on by the demurrant, should be waived by him. Otherwise, the Court cannot compel the party to join in demurrer; for, the Court cannot settle controverted facts. The case of Hyers v. Wood, 2 Call, 574, decides, that the demunant must admit every fact and conclusion which such evidence may conduce to prove.
    It is not yet clearly settled, whether these admissions are to be made in the first instance, and stated in the demurrer itself, under the direction of the Court, or whether the Court are to draw the proper inferences on the trial of *the demurrer. The first mode appears to be most correct. Judge Roane, in his opinion in the case of Harrison v. Brock, 1 Munf. 22, leaves the subject in doubt; while the case of Stevens v. White, 2 Wash. 203, does not militate against the doctrine.
    The motion for a new trial was properly over-ruled. The affidavit was insufficient; and, as James London had been dismissed by consent of parties, his absence was not a ground for a new trial.
    Stanard,- in reply.
    The question is, whether all the evidence of the tenants is not referrable to the patent cf 1755, and the judgment of the General Court. If it be, it cannot afford a presumption of any other patent. To ascertain this, the Court will look through the record, as was done in the case of Tomlin v. How, Gilm. 1.
    Presumption of acts of Parliament, patents, &c. is admitted as a deduction of law, on principles of policy, to protect long possessions. Mayor of Kingston v. Horner, Cowp. 102; Archer v. Saddler, 2 Hen. & Munf. 379, Roane’s opinion; Esk-ridge v. Cowper, Cowp. 214; 11 East, 488. The cases cited to prove the opposite doctrine, will be found, upon examination, to fall short of the object. If the Court shall be satisfied, upon examination of the record, that the evidence is only to be referred to the patent of 1755., they ought not to have left it to the jury.
    As to the practice in cases of demurrer to evidence, that suggested on the other side has never prevailed in this country. The inconveniences of such a practice are infinite, and no one advantage recommends it. The case of Pawling et al. v. United States, 4 Cranch, 219, is an authority in my favor. As to the cases which say, that where evidence is vague and contradictory, a demurrer to evidence is not proper, the foundation fails in this case; because, I maintain, that the evidence is susceptible of a very clear construction. In the case of Stephens v. White, 2 Wash. 203, the evidence admitted of two constructions, and yet the demurrer was allowed.
    *That the Court, and not the jury, are to presume a patent, is proved by the case of Knight v. Halsey, 2 Bos. & Puller, 206; 2 Saund. 175, note, and many others. Ricard v. Williams, 7 Wheaton, 59, is to the same effect.
    But, possession never is received as a ground to presume a patent, unless such possession is accompanied with a claim of title. The right, which the tenants claim, cannot be tr.aced further back than the year 1774. All prior right was extinguished by the judgment of the General Court.
    As to the identity of the land, it appears, by the admission of the tenants, that Nor-vell’s patent covers the land in question. The special verdict finds that it is the same land; and, as that verdict was between the same parties, and for the same matter in controversy, it is clearly evidence in this cause.
    
      There can be no presumption oí a patent, founded on a possession of eighteen years. Norvell’s patent was in 179'?’. The tenants’ title commenced with the judgment of the General Court in 1774. Take out five years during the war, and it will reduce the possession of the tenants to eighteen years or less.
    The Judge ought to have compelled the tenants to join in demurrer, although the evidence of James London might have been uncertain, as to some points; unless the importance of those points were shewn to the Court. The tenants ought not to be prejudiced by the forgetfulness of the Judge.
    London’s evidence proves, that the land in controversy was covered by the patent.
    As to the motion for a new trial, the Court are at liberty to look at the evidence in the demurrer, to decide whether the verdict was contrary to evidence; according to the precedent in the case of How v. Tomlin, before referred to. This case is free from the objection made in Bennett v. Hardaway, 6 Munf. 125, because the evidence here was taken down from the mouths of the witnesses, but in that case it was reduced to writing, after the trial.
    *December 5.
    
      
       Mudcm Bhookb sat in this cause, in addition to the Judges in the last case. — Note in Original Edition.
      
        * J<’or sequel of the principal case, .see Warwick v. Norvell, 1 Leigh 96, 98. 100.
    
    
      
       Demurrer to Evidence. — See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 6 Gratt. 364. The principal case is cited in Green v. Judith, 5 Rand. 15; Chesapeake, etc., Ry. Co. v. Sparrow, 98 Va. 633, 37 S. E. Rep. 302.
    
   JUDGE BROOKE,

delivered the opinion of the Court.

In deciding this case, the Court disclaims the power to change or limit the effect of the judgment of the Special Court of Appeals; nor would it countenance any evasion of it by the Court below, in permitting the evidence which is set out in the first bill of exceptions, to go to'the jury. No attempt of the sort is perceived by the Court. That evidence is not exhibited to repel the patent of 1797, under which the demandant claims, as in the case before that Court; but, to sustain it against a new title attempted to be set up by the tenants, and was therefore rightfully permitted to go to the jury.

Upon the second bill of exceptions, the Court is of opinion, that the evidence offered by the tenants, in the first instance, and by the demandant to rebut it, made a proper case Jar a demurrer. The evidence of the demandant is consistent with that of the tenants, from the whole of which the conclusions of law wou'd be more correctly drawn by the Court than the jury. The first objection by the tenants to joining in the demurrer, would deserve consideration, if the .error complained of in taking the testimony of James London, the witness, had been stated, and it also appeared that it would affect any of the questions to be decided by the Court, on the demurrer; but, it not being so stated by the party taking the objection, though it is stated by the counsel for the demand-ant, that the difference between them was, whether the witness spoke of the sale being made, and the title claimed, by John and Charles Christian, or by John only. The Court is of opinion, that there is nothing in the objection.

As to the uncertainty in regard to the identity of the land in controversy; if the demandant is entitled to recover as much of the 433 acres, described in the count, as his patent for 669*4 acres will include; the Court is of opinion, that it sufficiently designates that quantity, by metes and *bounds, to enable the Court to identify it, upon the final decision of the cause. The remainder of the 433 acres described in the pleadings, and supposed to be covered by the patent of the demandant of 1813, the Court deems it unnecessary to notice in the present state of the cause.

The judgment is therefore reversed, and the acuse remanded for further proceedings, in which the verdict is to be set aside, and the tenants compelled to join in demurrer, and, if necessary, a writ of enquiry of damages.

. JUDGES GREEN and SUMMERS,

differed from the rest of the Court, as to the form in which the judgment was to be entered; and JUDGE GREEN, submitted the following, as conveying the ideas of himself and JUDGE SUMMERS: That there is error in the judgment and proceedings, in this; that the# Superior Court of Law should have compelled the tenants to join in the demurrer to evidence, tendered by the demandant, stating the evidence of James J^ondon, in the particular in which the counsel of the parties differed, as the counsel of the tenants insisted it was. Therefore, it is considered that the judgment be reversed and annulled, the verdict of the jury set aside, and the cause remanded to the said Superior Court, for a new trial to be had therein.

Judgment reversed, and the cause remanded, in pursuance of the foregoing opinion of the Court. 
      
      Note. — Jtogb Bbooke, remarked, that on the question, whether that portion of the 66914 acre patent which was supposed to be included as a part of the land described in the count, is sufficiently designated, to justify a judgment, under the act for reforming the method of proceeding in writs of right, (1 Rev. Code, p. 464.) he differed from the other Judges. He thought there was nothing in the pleadings to warrant it. — Note in Original Edition.
     