
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Perry v. Middleton.
    The land in dispute was found to lay on Cedar Creek, waters of the Catawba river. The defendant’s grant described the same as laying on Cedar Creek, waters of Broad river. Parol evidence was admitted to prove that the land described in the grant lay on the waters of Catawba, and not on the waters of Broad river, by proving the identity of the trees mentioned in the plat annexed to the grant, and proving the actual location of the land in strict conformity with the grant, except aS to the liver on the waters of which the same was described to lay. This was considered proper evidence to be admitted to explain away a difficulty arising from the grant itself, not to contradict it.
    Trespass to try titles to land, tried in Lancaster district, before Geimke, J. Plaintiff claimed under patent from the State to John Hood. Defendant claimed under patent to Samuel Littlejohn. Defendant’s was the elder patent; but the land was described in the patent and plat annexed thereto, to be situate on Cedar Creek, waters of Broad river, whereas the land in dispute lays on Cedar Creek, waters of the Catawba river, and is so described in the plaintiff’s patent. The defendant offered evidence to prove that the land referred to, and intended to be described in the grant under which he claimed, actually lay, and was located on the waters of the Catawba river, and not on the waters of Broad river, as erro, neously expressed in the grant; and was allowed to give evidence to that .effect, in pursuance to a decision of this court formerly made in this same case, (see 1 vol. p. 546,) and proved by a depu. ty surveyor that the marked trees, and courses of the lines on the land in dispute, corresponded with the descriptions contained in his plat of suvvey and patent. But the plaintiff, on his part, produced one William Cato, who had certified the platannexed to the de. fendant’s grant as deputy survfeyort, who declared that he never surveyed the land in dispute, and knew nothing of the lines in ques. tion ; and also a Mr. Bayley, who swore that he had the land located and surveyed for himself, and that the very survey attached to the patent to Littlejohn, appeared to be the one he had run out; and that Littlejohn never had any survey'made of the land, as he verily believed.
    The jury found a verdict for the plaintiff.
    The motion in this court was for a new trial, and was argued by Richakdson on several grounds : 1. That the defendant’s grant was the eldest, and that the land was clearly identified. 2. That the evidence of Cato and Bayley was improperly admitted, and was insufficient. 3. That the judge misdirected the jury, in leaving it as a matter to be decided by them, whether the defendant’s patent had not been surreptitiously or fraudulently obtained.
    N. B. This was not left to the jury, but only whether the pa. tent did in fact cover the land in question.
    Blanding, for the plaintiff,
    cited 4 D. and E. 320. Peak 82,
   Waties, J.,

delivered the opinion of the whole court. The parol evidence given on the part of both plaintiff and defendant, was properly admitted at the trial, in order to identify the land. It was given to explain and support, or to ascertain the intent of the respective grants in question, and not to destroy or invalidate them. The question determined by the jury, was the locality or identity of the land granted by these grants, and not the validity or suffi. ciency of the grants to give a right to the land intended to be granted. The plaintiff’s plat was very satisfactorily located. There could be no doubt but that the patent under which he claimed, covers the land in dispute. It was not, by any means, so clear that the patent to Littlejohn was a grant of the same land. It is -possible there may be land on Broad river answering the description. The grant and plat calls for land on the waters of Broad river. Cato, who certified the plat, swore, that be did not survey the land in question for Littlejohn, or any other person ; and Bayley’s evidence strengthened .the doubt of this being the land granted to Littlejohn. The jury have resolved these doubts in favor of the plaintiff, with whom the justice of the case seems to be; and as this case has been long depending, and has been once before brought before us ira this court, it is high time there should be an end of it.

New trial refused.

Note. It appeared that it was with great difficulty that the plaintiff could ob* ta¡a the benefit of Cato’s evidence; and there was ground to suspect that he had never made the survey which he had certified; but at all events, it appeared clearly from the circumstances of the case, as well as his own testimony, which he gave w’t*1 r®'uctallce> l'13-1-11® bad never been upon the land in dispute, to survey it. This fact being clear, the legal presumption was, that the land surveyed by Cato for Littlejohn, was located, if it was ever located at all, some where else than in the place in dispute; and if it never was located, then the grant could have no operation, or effect. See 2 Burney’s Rep. 109, Mageehan v. Adams. Parol evidence held admissible, to shew that a course and boundary in a survey and patent was incorrectly stated, and that they were otherwise on the ground.  