
    
      E. Birchfield and others vs. E. Bonham.
    
    1. The description of a tract of land in a deed under which defendant claimed was, “a tract or parcel of land where he (Wm. Bullein) now lives, containing fifty acres, bounded by lands belonging to Wm. Bonham on one side, and Fall Branch on the other.” The tract on which B lived was known as the Clayton grant, and supposed to contain the number of acres mentioned in the deed, but all the land which the grantor owned lying on Fall Branch had been conveyed before the execution of the deed to B, leaving Bonham’s land as the only boundary for the latter deed.
    2. Held that the limits of the tract on which B lived might be ascertained by parol evidence, and that if the jury were satisfied that the land referred to in the deed was the Clayton grant, the verdict was conclusive.
    3. Where a deed was searched for in the clerk’s office and not found, which defendant proposed to offer in evidence, and one of the plaintiffs, not entitled to the possession o f it, said that he had taken it out of the clerk’s office, an office copy was properly admitted.
    
      Before O’Neall, J. Spartanburg, Spring Term, 1843.
    This was an action of trespass to try titles to a small piece of land, about 50 acres, part of a larger tract, which had once been the property of--Birchfield, the father of the plaintiffs. The description in the deed executed by Birchfield to Bullein, undér whom the defendant claims, is fifty acres of land on Fall Branch, and adjoining Bonham’s land. The grantee Bullein was living on the land in dispute called the Clayton land: it was the intention of Birch-field to give him 50 acres, where he lived. Bullein told one of the witnesses that his line ran on his fence, N. of his house, about 150 yards. The witness Hunt, who drew this deed, proved that on the same day, and before it was executed, he drew a deed and witnessed its execution from Birchfield to a woman of the name of-, which covered all the land on which the plaintiffs insisted the defendant’s deed should be located. — The grantee had left the State, the deed was searched for in the Clerk’s office, where it had been placed to be recordeed, and it could not be found. On this proof coming out, one of the plaintiffs, who was not entitled to the possession of the deed, said he had taken it out of the Clerk’s office. On this proof I admitted the office copy, which shewed very clearly that Birchfield had conveyed previously all the land which he owned lying on Fall Branch. The only boundary left for the defendant’s deed was on Bonham’s land, which constituted the entire eastern boundary of the Clayton land.
    The case was submitted to the jury, who did the best they could, on such a blind question of location, by finding for the defendant.
    The plaintiffs appealed, on the following grounds.
    1st. Because the deed under which the defendant claims calls for the Fall Branch on one side,, and Bonham’s land on the other, no other boundaries being called for, yet the location established by the verdict missed the Fall Branch near a quarter of a mile, and locates it on Motley’s Creek.
    2nd. Because the deed of defendant calls for fifty acres, and if the defendant is allowed that quantity of land as he claims it, he would still be a trespasser.
    3d. Because Bullein, under whom the defendant claims, pointed out his boundary so as to run to the Fall Branch, to get his fifty acres, which was conclusive of the defendant’s claim to the land in dispute.
    4th. Because his Honor the presiding Judge erred in allowing the defendant to give in evidence a copy deed, without either searching where it would likely be found, or giving the plaintiffs notice to produce it.
    5th. Because the verdict was against law and evidence.
    Henry, for the motion. Leitner, contra,
    cited 1 M’Cord, 232.
   Curia, per

Butler, J.

It would seem that the plaintiffs’s right to recover the land in this case depends altogether upon the question whether the location of defendant’s land can b'e maintained under the description of the •deed to William Bullein.

The description in that deed is as follows, “a tract or parcel of land where he (Wm. Bullein,) now lives, containing 50 acres, bounded by lands belonging to Wm. Bonham on one side, and Fall Branch on the other.” It is certain from this description that the land must be that whereon Bullein lived at the time. Particular boundaries are referred to, rather as a general description, than as fixed and uncontrolable limits. For in going to these boundaries more than the tract whereon Bullein lived, which was intended to have been conveyed, might have been embraced.

The tract spoken of in the deed may have been erroniously described, by assigning to it conjectural boundaries, and such, in one particular at least, seems to be the case; for it is certain the land located for the defendant did not extend to Fall Branch. And it is probable that the deed would not have operated as a conveyance of any land to Bullein, if it had been located on Fall Branch. What were, therefore, the true limits of the tract whereon he levied, depended on evidence. Had that tract any particular name? .if so, it indicated its identity. As when the Home tract, the Upper tract, or the Lower tract, are spoken of. The limits of these must be ascertained by parol evidence, otherwise such deeds would be ambiguous and inoperative. The tract where Bullin lived was on the Clayton grant, supposed to contain 50 acres. That grant may have called for boundaries to which it could not extend, or which did not correspond with its actual lines; and so it may have contained more or less acres than it called for ; where it should be located, would, in many cases, depend on extraneous circumstances and explanations not afforded by the paper itself. One oak tree might have been called for, when another was meant, or one of entirely a different description, So in the case under consideration. If the jury were satisfied from the evidence before them, that the tract actually referred to in the deed was the Clayton grant, they were authorized to locate it as they have done, and, in so doing, we do not perceive that they have violated any rule of law.

We think the circuit judge acted properly in allowing an office copy of the deed, referred to in the 4th ground of appeal, to be given in evidence.

It would not do to allow a plaintiff to gain any advantage, or subject a defendant to any prejudice, by a declaration of his own made during the trial. And the declartion made by one of the plaintiffs, was by a party interested, under circumstances well calculated to surprise the defendant. Motion refused.

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