
    Herbert and Wife v. Wise and Others.
    [Wednesday, October 27th, 1802.]
    Deed — Extrinsic Evidence. — How far evidence, de hors the deed, may be received.
    Construction of Written instruments — Province of Court.— [When a cuestión arises, what passes by a written instrument, it is proper for the Court to decide it.]
    In ejectment, brought by Herbert and wife against Wise and others, fora tract of land in Fairfax county; upon the trial of the cause, the defendants filed a bill of exceptions, stating, that the plaintiffs, in order to prove their title, gave in evidence a patent to George Brent, dated in 1677, for 1143 acres of land on Hunting Creek; the will of George Brent, in 1694, by which he devised that land to his son George Brent, jun. who, by his will, in 1700, devised 400 acres thereof, to be first laid off, to his brother Henry; other 400 acres to his brother Robert; and to his brother Nicholas Brent, the residue of the said land, being the plantation whereon Robert Williams was tenant, and containing 343 acres; the will of Nicholas Brent, by which, in 1711, he devised the last named land, called by him 400 acres, to be sold for payment of his debts; and, lastly, a deed from Robert Brent, executor of Nicholas, to John Ball; wherein, after reciting the will of Nicholas Brent, he, in pursuance thereof, conveys to Ball a certain parcel or tract of land on Hunting Creek, being 343 acres, and described to be part of 1143 acres patented *to George Brent the elder, given by him to George Brent, jun., devised by the latter to his three brothers, in the terms of the devises to them, and bounded as follows, setting forth the boundaries. That, the defendants moved the Court to instruct the jury that no more land was conveyed to the said John Ball, than the quantity contained within the metes and bounds expressed in the said deed to him from Robert Brent, executor of Nicholas. Brent: and that the Court instructed the jury accordingly. Verdict and judgment for the defendants; and, thereupon, the plaintiffs appealed to this Court.
    E. T. Brooke, for the appellants.
    Although it be generally true, that the Court is to decide what estate is conveyed by the deed; yet, it is frequently necessary to resort to something extraneous, in order to decide what quantity of land is convej'ed. This was absolutely necessary in the present case; because, there was an express reference, in the deed itself, to the other patents and conveyances; which, therefore, were clearly admissible. It is not like the case of Gatewood v. Burrus, (ante, 194,) at the last term; because, there was no such reference in that case.
    Wickham, contra.
    The Court were to decide on the deed itself; and they might instruct the jury upon the effect of it. There is nothing to shew, that this precluded the other testimony, and the presumption is, tha.t he had none to offer, as it is not stated in the bill of exceptions ; but, if the party had other testimony, it was inadmissible, as the deed itself was the only rule: for, there is no difference between this case and that of Gatewood v. Burrus. The Court only declared its opinion on the deed, and there is nothing to shew that the metes and bounds differ from the patent, although the evidence is stated: in which respect, the case is less liable to exception, than that of Gatewood v. Burrus; for, there, the parol evidence was not stated.
    *Randolph, in reply.
    The reference to the other deed's and patents, introduced the right to the extraneous evidence. The jury may explain the quantity which is included within the boundaries described in the deed, and evidence may be given, in order to enable •them to do so. It is said, that there is nothing to shew that we had other evidence; and, therefore, that we had no ground of exceptions. But, we could not have offered it after the Court’s opinion had been so decidedly given. Gatewood v. Burrus, was a different question, altogether.
    
      
      Land — Mistakes—Correction—Paro! Evidence. — The principal case is cited in Hunter v. Hume, 88 Va. 29, 18 S. E. Rep. 305, as authority for the proposition that, such mistakes as leaving out lines, putting north for south, and east for west, are to be corrected by parol evidence of the true intent of the parties.
      The principal case is cited in this connection in Elliott v. Horton, 28 Gratt. 772.
      See Baker v. Seekright, 1 Hen. & M. 177, and footnote to Pasley v. English, 5 Gratt. 141.
    
    
      
      [Construction of Written Instruments — Province of Court. — The principal case is cited in Burke v. Lee, 76 Va. 388. for the proposition that, all questions touching the operation, construction and effect of wills and other instruments of writing, are for the determination of the court, and not for the jury.
      
        See foot-note to Johnson v. Jennings, 10 Gratt, 1.
    
   PENDLETON, President,

delivered the resolution of the Court, as follows:

This was an ejectment, in the District Court of Dumfries, for 1320 acres of land, in Fairfax count}'. Upon the trial, the plaintiffs, in order to prove their title, gave in evidence a patent to George Brent, dated in 1677, for 1143 acres of land on Hunting Creek; the will of George Brent, in 1694, by which he devised that land to his son, George Brent, jun. who, by his will in 1700, devised 400 acres of that tract, to be first laid off, to his brother Henry; other 400 | acres to his brother Robert; and, to his brother Nicholas Brent, the plantation, the residue of the said land, whereon Robert Williams was tenant, being 343 acres: The will of Nicholas Brent, in 1711, bj' which he devises this land, called, by him, 400 aci;es, to be sold for the payment of his debts: And a deed, in 1715, from Robert Brent, executor of Nicholas, to John Ball; wherein, after reciting the will of Nicholas, he, in pursuance thereof, conveys to Ball a certain parcel or tract of land, on Hunting Creek, being 343 acres, part of a tract of 1143 acres, patented to George Brent the elder, given by him to George Brent, jun., whose devises, to his three brothers, are literally copied; the said 343 acres being bounded as followeth, and the bounds are inserted. Here the counsel for the *defendant interposed, and moved for the direction of the Court to the jury, “that no more land passed to John Ball under the patent, wills and deed, than was comprehended in the metes and bounds mentioned in the deed:’ ’ Which direction being given accordingly, a verdict passed for the defendant. The plaintiff filed exceptions to the Court’s opinion, and appeáls; and the question now is, whether that opinion was a misdirection? To pursue the proper descriptions of our land boundaries, would render men’s titles very precarious, not only from the variations of the compass, but that old surveys were often inaccurate; and mistakes often made, in copying their descriptions into the patents; leaving out lines, and putting north for south, and east for west; and in copying those descriptions into subsequent conveyances: Whereas, the marked trees upon the land remain invariable, according to which neighbours hold their distinct lands. On this ground, our juries have uniformly, and wisely, never suffered such lines, when proved, to be departed from, because they do not agree exactly with descriptions in conveyances. However, when a question arises, what passes by a written instrument, it is proper for the Court to decided that question; and we proceed to consider, whether the opinion given by the District Court upon this deed, was legal and proper? And we think not; for, that by the will of George Brent, jun. his brother Nicholas was entitled to all the Hunting Creek tract, besides the 800 devised to Henry and Robert, whatever was the quantity, the words, residue of the tract, controlling the supposition of the quantity; that the will of Nicholas author-ised the sale of his whole right, 'and that the deed to Ball was intended to be, and was a conveyance of the whole; being of the parcel or tract supposed to be 343 acres from the recital of the patent and wills, and the same terms used essentially, as are in the devise by George Brent to his brother Nicholas. We are, therefore, of opinion, that it was a misdirection in *the Court, and that the plaintiffs ought to have been permitted to proceed, and shew, if they could, that they had the same title as Ball had. The judgment is, therefore, to be reversed with costs, and a new trial ordered, on which the plaintiffs are to be permitted to shew, if they can, that they have the same title that Ball had. 
      Boundaries — Natural Landmarks Control —In descriptions of lands or questions of boundaries, tbe rnle Is that natural landmarks, marked lines and repnted boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances. In support of this proposition, the principal case is cited and approved in Dogan v. Seekright, 4 Hen. & M. 135; Pasley v. English, 5 Gratt. 151; Norfolk Trust Co. v. Foster, 78 Va. 417; Adams v. Alkire, 20 W. Va. 486. See Baker v. Seekright, 1 Hen. & M. 177;, Coles v. Wooding, 2 P. & H. 189, and note; Smith v. Davis, 4 Gratt. 50, and note: Preston v. Bowman, 6 Wheat. 580; Newsom v. Pryor, 7 Wheat. 7, and foot-note to Shaw v. Clements, 1 Call 429.
     