
    COURT OF APPEALS, JUNE TERM, 1821.
    Hammond vs. Ridgely’s Lessee.
    wimteter que». tion was binding «n the i<uocourt of appeals, is equally binding {|™”d‘f1!lU “,1,^ eotm of appears composed ofpersons of integrity,” kc. “whose judgment shall be final and conclusive in all cuses of appeals,” &c. means simply that the court of appeals should he a tribunal of u-tímate resort? Quere ■ Whether the verdictaud judgmipt in one action of ejectment is a bar toa recovery in another? Quere
    
    ' ’Whether the expressions in ihe act of 1790, ch 42, “thatthe opinion of the court of appeals shall be^ conclusive in !a>V as to the question by t)iem decided,” means only, that the opinion of the court of appeals shall.be conclusive upon Hie inferior court-on the new trial of Hit* particular suit sent back to them by a procedendo, and can lniv-* no reference to any subsequent suit? Qwre *
    If an action of ejt etment is entered for the use of any perwm, such perom is substantially a party to ihe action
    ' The construction of a grant of land falls peculiarly within the province of the court, and is not a matter fit to be lett to a jure, excent only m a case of latent ambiguity
    Where a grant of a tistef of land is described as “lying on the W side of the N branch of Patuxent river, beginning at a bounded led o.ik. standing by the.said river, and running (three courses) to a bounded white oak standing by the said river, then bounding on the said river running S 5 «legs IS 270 perches, then by straight line to the fret, bounded tree*—Held, that the filth or last lme thereof must and could only he located by running a straight course fiom the end of the fourth inn*, wherever that may be, to the beginning, and the ípgiuulevs of the river Patuxent could not be pursued without a direct violation of th* grant
    So also, where a grant of a (rootof land is described as “beginning at three bounded white oaks, standing by Patuxent riv«»r, and running and bounding on the said mer N 4 degs. IS 87 perches, then N (sundry courses) then N 1 deg. W 4o perriu-s to a bound white oak by the river, ti» n S 47 dogs. K 388 percho», to a bound white oak, then by a .straight line to the first bounded white oak*»”—/k’i<7, that the first course is to be run N 4 digs. 30 87 perche , him ing the,same on iho iiv* r Patuxent, aul all’ the subsequent couues arc tp be run aceurdmg’io the course ami distance, unid the entuse N 1 deg. W 48 perches •
    So also where a tract of land is described in a errant as “))ing in the fink of Patuxent, river, beginning at a bounded white oak standing near the head of a branch, running from the s’;i<i branch S W by W 180 peí ches to a bounded n d oak standing on the 1C side of the W great brain h of tin* said river, then bounding on the said great brand), i uniting' W N W 40 peí ches, rhon ,W S \V 28 perches, then” (sundry comwes)“tiren N -ixid by 1C to perches to a bounded btech standing by the said branch, then into the woods N IS-’by N-220 perches to p, hound* d red oak,” tee—Held* that the (rue construction of the grant is to hind on the Patuxent li'ver from the second bomulan, (admitted to be standing by the the east side oí the western great branch of the said uver.) Hie seve.nl comses mention, d <n the grant, to the bounded beech standing by the said great branch; and that if there was no satisiaiu»ry proof of the beech, or the place where it stood, then'the course N and by IS 10 ps. must terminate by the great branch, (ITote
    
    
      A deputy surveyor kasno authority to survey lands lying in another county, and on the n*tm n of his certificate ot Mich survey, a grant, on a caveat, ivou.d be* reii.sid. But ií a grant w&a obtained, and no Iruud practised in the «mention of it, ic will operate to pass the land
    Where there arc conflicting grants and interfering locations of the iiui¡k of A and B, and th? part of the land claimed by A is within the lints of ihe g.ant to U, a».d A, and those tu.ib r whom In* e.aimed, had been in posu-siion, and used and occupied Hie part «o claimed b> him £ur upwaivs of 100 years, thd court will not direct the jury to presume a deed from the grantee, under whom ii claimed, to iho grantee under whom A claimed, for tin* part thus claimed, or that there had been an actual ouster of such part. But if A. and tho>o' under whom ho claimed, were in the adversary, unintcm.pted, and exclusive possession, by enclosure, of the land, in dispute, for 20 years, that m such case B will be barred by the act of limitations
    • ‘A devise of a tract of land by name, and described as lying in Baltimore county, passed the whole tract, though pa«*t of it lay in another county
    If the grantor in a deed is in possession of part of the tract of land conveyed, that possession will extend to the whole tract, unless there had been an adversary, uninterrupted, and exclusive possession, ■by enclosures, qf-a part of the land, by some other persen,,ibr ;30 year*, prior to ihu execution of such
    Appeal from a iudsnnent rendered in Anne-Jlrunid ° ° county court in an action of eiectment brought to recover ^ J ' o id . . two tracts of laud, one called Dorsey’s Search, (the original survey,) and Dorsey’s Search, (the resurvey lying in Jinne-Jlmndd county. The defendant in .court below, (now appellant,) took defence for a tract of land called Dryer’s Inheritance, as located upon the plot® made in the cause.
    1. At the trial, the plaintiff, (now appellee,) read in evidence a certificate and grant of the tract of land called Dorsey’s Search, surveyed by the surveyor of Anne-Arundel county, for John Dorsey, on the 6th of December 1694, and granted to him on the 26th of March 1696, stating the said tract as “lying at Elk Ridge, beginning at three bounded white oaks standing by Patuxent river, and running and bounding o'n the said river N 4° E 87 perches, then N 62° E 50 perches, then,” &c. [ sundry courses,“then N 1° W 48 perches to a bound white oak by the river, then S 47° E 388 perches to a bound white oak, then by a straight line to the first bounded white oaks, containing, and now laid out for 479 acres of land,” &c. He also offered evidence, that John Do'rsey, the grantee, entered upon the sajd Jand in virtue of the said grant, had a plantation thereon, find died in the year 1714, having by his will, dated the 26th of November 1714, among other things, devised as follows, viz. “I give and bequeath unto my grandson, John Dorsey, son of my son Edivard Dorsey, deceased, my Patuxent plantation, and the land thereunto adjoining, called Dorsey’s Search, lying in Baltimore county, to hold to him during his natural life; and from and after his decease, then I give, devise, and bequeath my aforesaid land and plantation, given him as aforesaid, unto the heirs of the bo-, dy of my said grandson John Dorsey, to be begotten, for ever; and for want of such heirs, then,” &c. He then offered evidence that the last named John Dorsey entered on. the said land, and on the 27th of March 1723, resurveyed the same by the surveyor of Baltimore county, and obtained a certificate thereon, also called Dorsey’s Search, on which he obtained a grant dated the 10th of June 1734, “for all that tract or párcel of land called Dorsey’s Search, with its vacancy added, lying and being formerly in Baltimore, but now in Anne-Arundel county aforesaid, on Elk Ridge, and on the east side of Patuxent river, beginning at three bounded white oaks, (being the third boundary of the land called Long Reach,) standing near the aforesaid river side, said trees being the original beginning trees of the said Dorsey’s Search, and running thence up and with the said river, N 4° E 124 perches, thence,” &c. [sundry 
      
      courses,) í£to a parcel of land called Dryer's Inheritance, thence with said land N 9° E 185 perches, thence,” &c. {two courses,] “to an original bounded white oak of Dorsey's Search, thence S 47° E 432 perches, to the land called Long Reach, thence with the said land to the aforesaid three bounded white oaks, containing and now laid out for 750 acres of land more or less.” He also offered evidence to prove, that John Dorsey, the devisee, entered upon Dorsey's Search, (the resurvey,) and died seized thereof, and of Dorsey's Search, (the original,) in the year 1761, having by his will, dated the 15th of June 1761, devised unto his son Benjamin Dorsey, and his heirs, “all the land taken by warrant of resurvey adjoining to Dorsey's Search." The plaintiff then, to prove that the said tracts of land, both the original and resurvey, did run and lie both on the east and west side of Patuxent river, offered in evidence the original certificate of the resurvey on Dorsey's Search, made for the party as aforesaid. He then offered evidence that Dorsey's Search, the original, descended, on the death of John Dorsey, the devisee aforesaid, to Ely Dorsey his heir in tail, who entered thereon and was possessed thereof, and that he and John C. Dorsey, his eldest son, on the 26th of September 1777, conveyéd Dorsey's Search, the original, to Joseph Howard; and that Howard afterwards, on the succeeding day, reconveyed the same land to Ely Dorsey, and that Ely Dorsey died in the year 1794, having by his will dated the 22d of October 1789, devised to his executrix, (Deborah Dorsey,) for the purpose of selling the same, the tract of land called Dorsey's Search, the same to be sold at public vendue to the highest bidder, after notice, &c. and the money arising from the sale to be equally divided between the children of his two daughters, &c. That Deborah Dorsey entered upon the said lands, and by virtue and in pursuance of the powers given to her by the said will, sold and conveyed the said lands to Richard Ridgely, by deed bearing date the 15th of March 1796. That Richard Ridgely entered upon the said land, and by his deed dated the 16th of March 1796, conveyed the same to Daniel Dorsey by way of .mortgage. The plaintiff then offered evidence, that Benjamin Dorsey above named, in virtue of the will of his father, entered into the land called Dorsey's Search, the resurvey, and on the 13th of September 1774, conveyed the same to Elea
      
      nor Dorsey, wife of Samuel Dorsey, and that she and lief husband entered thereon; that the said Eleanor survived her husband, and after his death conveyed the said last mentioned land to Harry Woodward Dorsey, by her deed hearing date the 28th of November 1794; and that Ilarry Woodward Dorsey entered thereon, and conveyed the same to Richard Ridgely, by deed dated the 16th of April 2798; That Richard Ridgely entered thereon, and conveyed the same to Daniel Dorsey, by his deed of mortgage dated the 18th of April 1798. The plaintiff, to prove that dolt ft Dorsey, the grantee of Dorsey’s Search, the original, and all those claiming under him, always claimed, possessed and used the said land, accbiding to the true loca-’ tion, on both sides the river Patuxent, read m evidence, l:r consent, the depositions of the'said Benjamin Dorsey,- and Ely Davis. The plaintiff then gave in evidence two deeds from Daniel Dorsey to Richard Ridgely, the lessor of the plaintiff, one dated the 8th of April 1814, and the' other dated the 15th pf August 1818', being releases of" the.deeds of mortgages herein before mentioned. And that Richard Ridgely, the lessor of the plaintiff, is the same Richard Ridgely who conveyed Dorsey’s Search, the original, and Dorsey’s Search, the resurvey, to Daniel Dorsey, by deeds of mortgage herein before mentioned; and that the said Ridgely, from the time of the execution: of the deeds before mentioned from him to Daniel Dorsey,has always remained in the possession of both of the said tracts of land. And he offered evidence that the plots, certificates and explanations, in this cause, as there made by the plaintiff, are correctly and truly located. He also read in evidence a certificate of The Addition, surveyed-for Thomas Brown on the 16th of September 1707; also a certificate of The Triangle,- surveyed for Charles Hammond the 20th of June 1761; and also a certificate' of The Attempt, surveyed for William Hammond theSd of March-1796. The defendant then read in evidence a certificate and grant of the tract of land called.Dryer’s Inheritance, surveyed for Samuel Dryer on the 25 th of February 1695, and granted to him on the 10th of March 1695, stating that tract as Hying 6n the west side of the north branch of Patuxent river, beginning at a bounded red oak standing by the, said branch, it being a bounded tree of Thomas Brown’s, and running N 62° W 86 perches to a bound red oak in a branch; thenN 6° W 362 perches to a bound white oak, then N 66° E 120 perches to a bound •white oak standing by the said river, then bounding on the said river, running S5° E 976 pier ches, then by a Straight line to the first bounded tree, containing and now laid out for 254 acres of land,” &c. The defendant then read in evidence certificates and grants of the following tracts of land, viz. Brown’s Forest, surveyed for Thomas Brown the 24th of February 1695; Freeborn’s Progress, surveyed for Thomas Freeborn, the 25th of October 1695; Dorsey’s Search, the original, and Dorsey’s Search, tlie resurvey, before mentioned; and also Hammond’s Inheritance, surveyed for Rezin Hammond the ist of Match 1796. And the defendant offered in evidence the plots and explanations in this cause, ánd that the locations of those respective tracts of land, as there made by her, are truly and correctly made. She then offered in evidence,'that Samuel Dryer entered upon Dryer’s Inheritance under his grant, and possessed himself thereof; and entered into a contract with .fimos Gramil to convey to him the said land, by bond dated the 4th of September 1708. And also a deed from Dryer, and his wife, to Garrett, dated the 8th df September 1708, conveying to him the said lánd. She also offered in evidence a deed for the said land called Dryer’s Inheritance, from William Woodward, Mary Holmes, and Elizabeth Ginn, to Philip Hammond, dated the 30th of September 1736, which deed recites, among other things, that Jlmos Garrett died intestate, whereby alí his real estate descended to and vested ih Mary Woodivari and Elizabeth Ginn, his two surviving' sisters, as párceiiefs or tenants in common; that Mary is since also dead, having by her will devised unto William Woodward and Mary Holmes, their heirs arid assigns, all her undivided moiety of the said real estate, &c. And that the said deed was duly executed by tbe said grantees to the said Hammond$ and that the recitals in the said de'ed were true. The defendant then offered in evidence, that Philip Hammond, by virtue of the said dead, entered into Dryer’s Inheritance; and by his will, dated the 6th of June' 1754, he. devised the said tract of lánd, amongst others, to his six sons Charles, John, Philip, Denton, Rezin and Matthias, and their heirs, as tenants in common; and that on the 20th of May 1760; the devisees in the said will having entered upon and become seized of the lands devised to them by the said will, as tenants in common, the said Charles,' John, Philip, Denton and Matthias, conveyed all their right, &c. in the said land, to the said Bezin Hammond, by several deeds, that by Charles bearingdate the 28th of July 1773; that by John on the á4th of March 1772; that by Philip and Denton on the 18th "of January 1774, and that by Matthias on the 21st of April 1777. And gave in evidence that the defendant is entitled to Dryer’s Inheritance and Hammond’s Inheritance; under the said Rezbi Hammond, who is dead.
    The plaintiff and defendant both offered in evidence sundry other matters and things, but as they were not taken into consideration by the court in deciding the questions which arose in the case, they are omitted. The defendant also offered in evidence the record of proceedings in an action of ejectment brought in the late general court by Daniel Dorsey’s lessee, against Rezin Hammond, and the judgment therein. fThc evidence offered in that action Was similar to that offered in this action, but much of which is omitted here, and also in the report of that case in 1 Harris and Johnson’s Reports, 190, in which said action the jury found a verdict for the plaintiff, and a judgment was rendered for him at October term. 1801; and from which judgment the defendant therein, appealed to the court of appeals.] The defendant also offered in evidence the record of the proceedings and judgment of the court of appeals, on an appeal in that court prosecuted by the said Rezin Hammond against the said Daniel Dorsey’s lessee, and the opinion of the court of appeals thereon, reversing the judgment of the general court, which had been rendered for the plaintiff in that court, and awardinga procedendo, fñee 1 Harris and Johnson, 201.] The defendant also gave in evidence, that notwithstanding the deeds from Richard Ridgely to Daniel Dorsey, herein before mentioned, the said Ridgely remained in possession of the lands mentioned in the said deeds; and that the said action of ejectment, instituted in the general court in the name of Daniel Dorsey’s lessee against Rezin Hammond, was instituted by the said Ridgely, and for his use, by his directions; that it was on the part of the plaintiff, conducted by him, and under his directions; that the lawyers, who appeared on behalf of the plaintiff, were employed by him, and the expenses of the said suit in the different courts were .paid by him. The defendant further offered in evidence the record of proceedings in the said action of ejectment, by Daniel Dorsey's Lessee, against liczin Hammond, after the judgment of the court of appeals, under the procedendo in that cause, wherein, on a new trial thereof, the jury gave their verdict for the defendant therein, and a judgment was rendered thereon at October term 1804. [See 1 Harris and Johnson, 202.] The defendant further offered, in evidence, that the grantees, devisees, and alienees of Dorsey's Search, the original, and Dorsey's Search, the resurvey, only actually entered respectively by virtue of the respective grants, wills and deeds, upon the said land, situate on the east side of the river Patuxent, and that all the land on the west side of Patuxent, contained within the limits of Dryer's Inheritance, according to the first location thereof made by the defendant, was, long before the resurvey of Dorsey's Search, entered upon by Samuel Dryer, and held and possessed, used, and occupied by him, and that the same hath ever since been held, possessed, used and occupied, exclusively by the said Dryer, and those holding under him, claiming the same as their property and right; and that the locations made on the plots by the defendant, where they differ from the locations of the plaintiff, are correct, The plaintiff then pyayed the opinion of the court, and their direction to the jury, that the true construction of' tiff grant of Dryer's Inheritance is to run the fourth line thereof binding on tuxent river, from the boundary admitted by the parties marked on the plots at the figures 14 and 15, and from the point on the river where the jury shall find the said fourth line to terminate, to run a straight line to the first bounded tree of Dryer's Inheritance marked on the plots at the figures 53. The defendant thereupon objected, that the court could not, consistently^with their duty, give the opinion prayed for, because the court of appeals had heretofore given aq opinion upon the same question arising on the same location of the said certificate and grant of Dryer's Inheritance, and on solemn argument had adjudged, that the expressions of the said certificate and grqnt are doubtful and uncertain, and that it is the province of the jury to determine upon such evidence as might be offered to them, whether the said tract shall bind on the last line with the river qr not; which opinion and judgment of the court of appeals remains in full force, apd has never been reversed or overruled, and consequently, the defendant contends, is binding on this court, as an inferior tribunal in all cases where this question can occur, blit particularly in the present case, which is between the,defendant, who claims under liezin Hammond, the defendant in that cause, and Richard Ridgely, for whose use that suit was not only stated on the record to be brought, but was actually instituted and prosecuted. And the defendant gave in evidence to the court, that although deeds had been executed by Ridgely to Dorsey, as in the said record, yet that Ridgely remained in possession of the lands mentioned in the said deeds, and that the said suit was commenced and conducted by his directions; that he employed and paid counsel for the plaintiff; entered into agreements with the defendant, as the person actually interested, and the real plaintiff, although Daniel Dorsey’s lessee was the nominal plaintiff, and that he paid not only the defendant’s, costs of the said action, as being answerabjp to the defendant for them, but also the fees which accrued against the plaintiff therein. Wherefore the defendant prayed the opinion of the court, whether they were not concluded by the judgment of the court of appeals from giving the directions as prayed. The defendant also objected to the court’s giving the opinion as prayed by the plaintiff, because the same was not warranted by the grant of Dryer’s Inheritance, which was in truth doubtful and uncertain, as to whether that tract should be bounded, on the last line by the river, which must be decided by the jury on evidence to be offered to them; and the defendant offered to prove, that it was the intention of the parties that the said tract should so bind by the river; and for that purpose, to prove, that in a great number of surveys made by Richard Beard, . the surveyor who made $ie survey of Dryer’s Inheritance, he has used similar expressions, where it is notorious they were intended tp bind all their river courses by the water, and where they have been admitted, or decided judicially, that they ought so to be located. That Dryer entered upon the said survey, claimed it as binding with the riyer, h.uilt his house at figures 103 on the plots, more than 1,00 years past; made his improvements between the home line arid the river; used and occupied all the land between the fourth and fifth lines, and the river, claimed as his property and tight; and that he, and those claiming under him, have ever Since so used, occupied, held, possessed and claimed. That the original, grantee of Dorsey’s Search, the original, never entered upon, held, occupied or claimed, any part of the land on the west side of the river, hut acknowledged, that that survey did not include any land on the west side of the said river;.that the grantee of Dorsey’s Search, the resurvey, neither held nor claimed, any land on the west side of the said river; and that no person claiming under the said grantees, or either of them, ever held or possessed any land on the west side of the said river, or pretended to claim a*)y land on the west side until more than thirty years after the said resurvey was made. The defendant then referred to the record and decision made by this court in the suit of Charles Duvall against Nathan Jones, and the plots and explanations in that cause, and the certificate and grant of Boltin Nod’s Forest, there located 
      
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    A grant of land described as •‘tying; in the fork of J3afuxent river» beginning- at a bounded white oak standing; near the head of a branch, running from the said branch S \V by W ISO perches to st bounded red oak standing on the siileot the W great branch of the said river, then bounding on ihe said, great branch,run* ning W N W 40 perches, then \Y S W £H peí ches* then” ¿cc.‘ThenN •md by J¿16 perches to a bounded beech standing by the said gjeat brunch, then into the woods N IS by N 220 perches to a bounded oak,” Kcc must be located to bind on patuxent river from the second boundary, sSeot the western gicat branch of oucil m the grant, *l10 bounded thesaidbrai'ictu^
    
      Chase, Ch. J. The court are of opiniob, that between the same parties and those claiming under them, the judgment of the court of appeals on the same question oí law is conclusive. But Richard Ridgely, the lessor of the plaintiff in the present suit, was not a party in the former suit of Daniel Dorsey’s lessee against Bezin Hammond, It having been entered on the docket for the use of Richard Ridgely, does not make him the party. The legal estate vested in Daniel Dorsey, the mortgagee, under the mortgage from Richard Ridgely, on payment of the mortgage money, and executing the release from Daniel Dorsey to. Richard Ridgely, he was ip of his former estate by a title paramount to that of Daniel Dorsey. Richard Ridgely had only an equity of redemption until the mortgage money was paid. No acts of the mortgagee could affect his equitable right, or diminish his interest. A cestui que trust cannot bring an ejectment. . The entry on the docket, that it was for Richard Ridgely’s use, cannot make him the party, or conclude him on the question of law decided in the case of Daniel Dorsey’s .lessee against Rezin Hammond; and his having had the conduct of the suit, because he had fhe equity of redemption in the land, could not make him the party in contemplation of law, or conclude him by the decision of the court of appeals in the casg referred to.
    ¡ir cíe ÍÍh!1'Í0'ÍÍX«rucoonthe fhelbigie^iisiance giii‘tyl!lte“t ambl"
    ^’s tiie unquestionable right, and province of the court decide on the construction of grants, as well as to the thing granted, as to the nature and quality of the estate which passes by it, except in the single instance of a latent ambiguity.
    The construction of the grant is to be made according to nie intention of the parties, to be collected from the words , . . . expressions contained m the grant, it such mtentioq is not inconsistent with some rule or principle of law.
    The construct!* Se “made accord-imp; to the mien* wm a™" expressions contained therein.
    
      Magruder and Stephen, for the plaintiff.
    
      T. B. Dorsey and Bowie, for the defendant.
    
      tí¡td™pMUionta •“ l^beneficiai tothe£iantee
    'in doubtful cases, that exposition is to be given which is 'most beneficial for the grantee; and pursuant to that principle,the preference was given to calls originally, because generally, .the location by calls gave the grantee more land than the location according to course arid distance. Almost every grant that has calls, as well as courses and dis-lances, is susceptible of a double location, because the call, and the course and distance, seldom, if ever, precisely agree.
    If the call is imperative or peremptory; in the judgment of the court, it must be complied with, and the course and distance rejected, if they do with the call. not COI rCSpOIld.
    If the call is not imperative, or cannot be proved, the location must be according to course and distance.
    _ , • 1 , ,1 In all ejectments, in Which the controversy is about the ° . J location ef the land, the land must be located according to J ~ the different views or pretensions of the contending parties, and to support these locations, the evidence is introduced on which the questions of law- arise as to the true location of the land, which milst conform to the true exposition of a i Til© giant.
    Calls5n Kran,Si be,".ompí]Idhvith!| and the course and ^¡stance rejected* if they do not correspond. with the not imperative, or the location ofthe land must be according to the, course and distance, mea the controversy is* * pj0yc^ydthenparj¡*J> “'jchXcaU“"a(j¡í‘“/vid"¡,cset conform to the true exposition of pfio/'evidence where there ¡s a not apparent <m the face of the giant, as where the grantor had V'a£ts ofiand tre.e ^ called for* to^fsg;ui,as,he
    A latent ambiguity, is an ambiguity concealed, or apparent on the face hr inspection of the grant, but is created by the introduction of parol evidence, showing; that the J . r ° grantor, for instance, had two tracts of land called Black ° Acre, the name of the land granted; pafol evidence is inissible to show, for the burpose of explaining and reanoving the ambiguity, which tract of land was intended pass, and the finding of the jury will give effect and operation to the grant, by ascertaining which tract passed. In this way the right of expounding the grant, and locating the land according to such exposition, devolves on the jury, and is rightfully vested in them.
    So in the case of a call for the head of a creek called Swan Creek, and there are two creeks of that name; and so if there are two places set up as tbe head of Swan Creek—• the jury are to determine in the first case according to the evidence, which creek was intended; and in the second, which place is the head of the creek.
    So if a tree is called for, and there are two trees set up as the call; and so if the line of a tract of land is called for, and there are two tracts of that name—the jury are to decide which is the tree intended, and which is the tract of land intended, artd at what part of the line the intersection was. All these are instances of a latent ambiguity, and of locations with a double aspect. Many other instances could be enumerated, but these will suffice to shotV the ideas of the court of a latent ambiguity.
    These principles and positions being laid down, which the court consider as incontrovertible, will guide the court to aright decision of the question now submitted to them by the prayer made by the counsel for the plaintiff, for their direction to the jury; as to the true construction of the grant of the land called Dryer’s Inheritance.
    
    What is the plain intent and meaning of the parties, to be collected from the words of the grant, “beginning at a bounded red oak standing by the said branch of Patuxent river, and running N 62° W 8G ps. to a bounded red oak in a branch, then N G° W 362 ps. to a bounded white oak; then N 66° E 120 ps. to a bounded white oak standing by said river, then bounding on the said river, running S 5° E 270 ps. then by a straight line to the first bounded tree?’* The beginning, the first, second, third and fourth courses, are all admitted as exhibited and delineated on the plots, and the Patuxent river, as located, the place where the fourth line terminates on the river, to be found by the jury f expending the number of perches on the meanders of the' said river. The only contest is about the running of the fifth and last course, which closes the survey, “then by as straight line to the first bounded tree/’ íhis éxpfeásión appears to be plain and free from doubt, and every person' of good understanding, unaccustomed to the subtle and re-1 fined reasonings of ingenious men of the profession, would say, without hesitation, that the intention was to run directly by a straight line from the termination of the fourth line at the river, to the beginning, and riot circuitously With the windings of the river. Why!1 Because a straigíit line is not a crooked one, and a line from one given point to another must be a straight one; and because thefiftli course1 is a distinct sentence, and because there is no expression in it that has a call for the fiver, or any reference to it; and because the intention is to be collected from the words of the grant, and nothing extrinsic or de hors the grant,can be resorted to in the construction of it, and because if is an imperative call from the end of the fourth line, run-' ning the said fourth line 270 perches with the meanders of the river, and from thence to the first bounded tree, admitted to be the oeginning, by a straight line, and because^ if the surveyor had intended to bind on the river, he would have said, then with the river to the beginning.
    
      A tract of land described in a grant as running sundry courses to bounded frets, “then N 66 deg-. E 320 prs to a bounded white oj« lc standing by the river, then hounding on the said ri\er íunning S 5 «leg. E 270 in-s*. then by a straight hue to the first bounded tree>f The hut course was held to run a straight line, and not to bind with the river to the beginning
    
      The court are of opinion, that the fifth course, “then by a straight line to the first bounded tree,” admitted to be the beginning, excludes all doubt, is an imperative call, and must be gratified, and must run from tile termination of the fourth line, (the place to be ascertained by the jury,) by a straight line to the beginning, and not with the windings and meanders of the river, but binding on the said straight line. The defendant excepted.
    2. The plaintiff then prayed the opinion of the court, and their direction to the jury, that according to the true construction of the grant of Dorsey’s Search, (the original,) the first line thereof is to be located binding on the Patuxent river, and all the subsequent courses are to be run according to their course and distance, until you come to the N Io W 48 perches course. But the defendant obiectedtothe court’s giving the direction as prayed for; and J 1 Í ,, , , , . J. J ,. . prayed the opinion ot the court, and their direction to the x J 1 . . . jury, that according to the true grammatical construction and evident meaning of the expressions used in the grant of Dorsey’s Search, the original, that tract, from its beginning at figures 90, to its second boundary at figures 91, ought to bind on the said river, and not extend over the river to the westward thereof, so as to include any land on the west side thereof; and that the expressions, “and bounding on the said river,” were not in construction to be confined to the first course, but related to the whole of the courses mentioned, which are stated to be run from thebeginning to the second tree by the river side. And further prayed the opinion of the court, and their direction to the jury, that it appearing from the evidence that the plaintiff and defendant agree as to the location of the river Patuxent, and of the beginning of Dorsey’s Search, the original, at the figures 90, also of the next boundary called for in the grant at the figures 91, and only differ as to the manner in which the said tract ought to run and bind from the beginning at 90, to where the other boundary stood at 91; that from the grant itself it cannot be known, whether a location of the said tract, running and bounding from the beginning at 90 to the boundary at 91, according to the courses and distances expressed in the grant, will 'differ tom a location binding on the said river from the one boundary to the other, but that this difference can only be discovered by extrinsic evidence. That the clause in the grant, describing how the land is to run from the begining to that boundary, which is in the following words, to wit. “and running and bounding on said river N 4° E 37 perches, then N 62° E 50 perches, then N 21° E 107 perches, then N 8° E 62 perches, then N 20° W -45 perches, then N 37° E 40 perches, then N 26° W 32 perches, then N 1° W 48 perches to a bounded white oak by the river,” may mean, and can be construed according to their true and grammatical construction, that these courses and distances should be run from one boundary to the other, but that the land should bind with the course of the river from the one to the other. That this clause is elliptical, and the expi-essions “running and binding with the river,” may be understood and supplied before each of the courses there mentioned. That the expressions “binding with the river,” though placed in the beginning of this clause before the first course, yet the clause may be construed in the same manner, and may have the same meaning, as if those words had been placed at the end of that clause after the last course, and that there is nothing on the face of the grant which proves that such was not the meaning of the parties.
    
      atbjr * and^wnd¡íg“S *j*yaE rn pmhdrVlcou^ctcth”á perahíto’abound itViil heki,"thüt cL'sesfafieTthe first, were to be run accordinK to couwe and di«* tanee, ^ntu^the 4s perches
    
      Chase, Ch. J. The court, upon the prayers submitted to them, direct the jury, that although plots are necessary to show the position of the land, and the calls referred to in the grant, and evidence out of the grant is necessary to show their respective situations, yet not to aid in the construction of the grant, except in the case of a latent ambiguity. That the true construction of the grant of Dor. seifs Search, according to the words and expressions therein, is to run the first course N 4° E 87 perches binding on the river, and all the subsequent courses according to the course and distance, until you come to the N Io W 48 perches.
    This construction is conformable to the plain meaning of the words, and gratifies every part of the grant, and is pursuant to the intention of the surveyor, to be collected from the words he has used. The construction contended for rejects all the courses subsequent to the first, and cannot be admitted, there being no call or binding expression in either of the courses.
    The grant of Robin Hood’s Forest differs from the grant of Dorsey’s Search; the words, “then into the woods, N E and by N 220 perches to a bounded red oa,k,” are omitted in Dorsey’s Search, nor are words of similar import inserted. That expression, combined with the other circumstances mentioned, in the opinion of the court, in the case of Charles Duvall against Nathan Jemes, indicated the intention of the surveyor to make the great branch of Patuxent river the boundary from the second boundary at the letter E to the beech, because an intention was manifested by all the expressions and circumstances before alluded to, and contained in the grant, not to depart from the river until the surveyor came to the beech, and so contended by the counsel. The court decided on the words of the grant, and did not resort to extraneous circumstances. Reject that expression, and the decision of the court would have been different.
    It has been contended in the case of Dorsey’s Search, that the words “running and bounding,” ought to be supplied and made adjuncts or adherent to every distinct bourse, and that such is the grammatical construction. I admit it as to the word running, but not as to the -word bounding. The word running is necessarily implied, because the surveyor could not locate the lines without running according to course and distance or calls, but bounding is not a necessary implication, nor is it the grammatical construction in this case to unite it to every subsequent course, because, as a figure of rhetoric, it ought not to make the surveyor certify what is not consistent with truth, arid therefore it ought not to be supplied. The first course of Dorsey’s Search is, “running and bounding on the said river,” about which there is no dispute. The second course is N 62? E 50 perches, which is the course running almost directly from the river. If the surveyor does certify what is not true, by certifying course and distance and calls, and they do not agree, that is his own act; but he ought not to be made to certify what is not true by implication. It has been contended, that the word then is a copulative, and makes every course bind on the river. It means “afterwards,” '■‘■immediately afterwards” or "at ^lafl anfi su°b is its meaning in all surveys; that is, as soon as the surveyor came to the termination of one line he commenced running the next.
    I have pronounced my opinion of that which I consider the true construction of Dorsey’s Search, If I am mistaken, I derive great satisfaction from knowing my error# will be corrected by a superior tribunal. I can truly say I have taken pains to form a right judgment. The defendant excepted.
    a «ant of a tract of land, descyibed as beginoai™dtamimghby rumens & tab mil nB>7°pií‘tíien n) sundry ^courses) 'a 'bound white oak sy388 pra.r’to'ea thenbyV#'straight c?6 white' oa™the beginning: to the nearest part of the river p, to be ascertained by the jury, and from thence N 87 prs. with the meanders hereof ^ferciles thence’th^sib"™ co¡S“utoes’the tance^(the jury to “üoñof^h-coml course 5r"« pVf then, N 48 prs. a bounded white oak by the river, then s 388 prs. to a bounded white oak. rtiie two last stía¡Khtuniiney to wMte1oaks0un<kd
    ther tract of land, stated as beginning at abounded red oak standing by a branch, and running N 86 prs- to a bound red oak in a branch, then N 362 prs. to a bound white oak, then N 120 prs. to a bound white oak standing by the rivtrP, then bounding on the said liver, and running S 270 prs. then by a straight line to the first bo unded tree—Must be located to run from the beginning, N 86 prá, to a bounded red oak in a branch, then N 362 prs. to a bound white oajt, then N 120 prs. to a bound white oak standing by the river P. then to the nearest part of the river, to be ascertained by the tlie jury, then.bounding on the river, and running with the meanders thereof, S 270 prs. then by a qtyhight line to the first hounded tree, binding on the said straight line* r
    3. The defendant then proved by the plots and expía- . r J * * nations, and by the surveyor who made them out, that the ^ne fr°m the figures 90, the beginning of Dorsey’s Search, (^112 original,) to the figures 57, marked on said plots by the river side, is S 65° 15' W 15i perches in length, and that the figures . 56 stand where 87 perches terminates, running the same from the figures 57, by and with the meanders of the river, and expending them on the meanders, instead of running a straight line of 87 perches in length from the figures 90. That the course and distance from the figures 90 to the red figure 1, by the side of the . . ^ ___ ^ w river, is N 35° W 9,b perches, and that Dor seif s Search is 1 , , located to red figure £ by running 6£ perches from the red © J or figure 1, binding them on and with the meanders of the r*vcr an(l expending them on the meanders, and not by running a straight line of 87 perches, either from red figure 1 or b'om figures 90. And also that from figures 90 to the red figure 4 by the river side, the line is N 1° 15' W 136 perches. And further'proved, that the plaintiff has located the fourth line of Dryer’s Inheritance by running; it from . . „ _ . , „ , . , 0 the post at figures 14 and 15, and running the 270 perches 1 . 0 1 by and with the meanders of the said river, and expending J 3 r *3 them on said meanders, and thus terminating them at the figures 58 by the river side, instead of running a straight ^ue 270 perches in length to the river side. The defendant then prayed the court to direct the jury, thatt he locations made by the plaintiff of Dorsey’s Scorch, the ot'iginal, as located on the plots, are not either of them warranted by, or agreeable to the true meaning of the grant of that tract. And also that the locations of Dryer’s Inheritance made by the plaintiff on the plots, ;m: not either of them warranted by, nor agrecabl>ij is? the meaning of the grant of Dryer’s Inheritance.
    
    Chase, Ch. 3. The court are of opinion, that the true construction of the grant of Dorsey’s Search, according to the words and expressions therein, is to run from the beginning to the nearest part of Patuxent river, to be ascertained by the jury according to the evidence, and from thence Iv 4° E 87 perches with the meanders of the river, expending the number of perches on the same, and from thence the subsequent courses according to the course and distance, (the jury making such allowance for the variation of the compass as may accord with the evidence,,) until you come to the course N 1° W 48 perches, then N 1° W 48 perches to a bounded white oak by the river, then S 47° E 388 perches to a bounded white oak, (the two last oaks admitted by the parties,) then by a straight line to the first bounded white oaks.
    And the court are also of opinion, that the true construction of the grant of Dryer’s Inheritance is to run from the beginning, admitted by the parties, N 62° W 86 perches to a bounded red. oak in a branch, then N 6° W 362 perches to a bound white oak, then N 66° E 120 perches to a bound white oak standing by the river, then to the nearest part of the river, to be ascertained by the jury according to evidence, then bounding on the river and running with the meanders thereof, S 5° E 270 perches, then by a straight line to the first bounded tree binding on said straight line. The defendant excepted.
    4. The defendant then offered in evidence an agreement en-o tered into in this cause, stating that when Dorsey’s Search, the resurvey, was made, and for some time before, and thereafter until 1726, the river Patuxent was the houndary between Baltimore and Anne-Arundel counties; Baltimore county on the eastern side, and Jlnne-Arundel county on the western side of that river. And to prove the authority given to the deputy surveyors by their commissions, aaáíihe authority gives to John Dorsey? who was-the deputy- surveyor of Baltimore county when the resuryey 051. Dorsey’s Search was made, and who made the said, i;e-survey [for John Dorsey, jun.]ihe defendant offered in evi «fence the originad record of the proceedings of the council, and of the commission granted to Richard Beard, ¡[who. made the* survey of Dorsey’s Search, the original,], 051 the 1st of December 1684, and of the, commission to George Noble oh the 8th of February 1733. The commission to Beard' constituted and appointed him deputy surveyor of Anne-.8.rundel county, and that to Noble constituted and appointed him deputy surveyor of Prince- George’s county, granting to them respectively, full power and authority to survey and resurvey lands within their respective counties? and in the commission- to- Noble he was- restricted to survey» within the limits and bounds thereby assigned to him ,and to conform to orders and instructions, &c. The defendant also» offered.- in evidence, that commissions, also issued to Thomas ophite, of Baltimore county-, dated the 4th of March 1733; William Hanson, of Charles county, dated the 7th of March 1733; Robert Elliott, of Saint Mary’s county, dated the 7th March 1733, and Henry Ridgely, of- AnneArundel county, dated the 15th March 1733; all which issued to them as deputy surveyors of the' said respective-counties,. and are in the- same form mutatis mutandis with the said commission granted to George Noble. The defendant also offered in evidence the instructions of- the Lord Proprietor to regulate the conduct of his officers as to the manner of laying out and granting his lands. See them set forth in Kilty’s Land Holders Assistant,. 284, &c. The defendant also offered in evidence the warrant of resurvey to resurvey Dorsey’s Search, granted to John Dorsey, junior, of Baltimore county, the 26th of Januaiy 1722, i-n’ which warrant that tract is stated by the petitioner for the warrant to lie in Baltimore countyi The defendant also, offered evidence that all warrants of resurvey to resurvey any tract or tracts of. land were always directed to. the deputy surveyors-of the county or counties in which the tract or tracts .to be • resurveyed did lie. The defendant also offered in evidence, the commissions granted to. Vincent; Lowe, surveyor general of. the .former province of Maryland on* the 12th of August 1685? and the commission granted to Thomas Bordley, surveyor rgéner&l fot 4116 Western Shore of the saM province,-tin thé 20th of May 1717. These commissions -authorised respectively the appointment ;ol deputies, &c. The defendant further offered evidence, that the proceedings 'of the council at the time when 'the said John Dorsey was appointed deputy surveyor of BaMimore, are lost or destroyed. The defendant then prayed the opinion .'of the court, and their direction to the jury, that the plaiutifficOulÜ'not be •entitled by the certificate of Dorsey’s Search, the resurvey, and the grant thereon, to claim any land which was situate on the - west side of the river Patuxent, and in .Arme-Arundel county.
    
      - fa ««titans of survey, made ayc*St”ri3a« LoumirVcranf. ™ ty“botIi-1 Ke wal'noíuSa “ms “perat°n’to P*sst
    
      Chase, Ch. ,L The court are of opinion, that the deputy surveyor had no authority to act beyond the limits of the county of which he was appointed surveyor, and on the return of the certificate it would have been cause, on a caveat in the land office, to refuse a grant for that part of the land which lay in Anne-Arundel county. But the grant having been obtained, and no fraud practised in the obtention of it, will operate to pass the land in AnneArundel county. The defendant excepted.
    ¡S'á“i]o¡ÍSng f0™5, and b a4’“am’C «<?, iued^auTob ffleeiSinhíg™^ wann'ofiooyea's) not1 Wi>"e»im«i the land so poise,-ed, nor that tin re had been an newal ouster of suck ins .u,,*,r S7’Mid raSS-e yea»,“hi be%m?de by'the
    iand° and10?» hi K'^Mwssiot^of two persons'are in possession oí the same land, the one by title, and the other by wrong-, it is his possession who 1ms the rij^ht.
    5. The plaintiff having given in evidence the title deduced by the defendant in. Dryer’s Inheritance, and Hammond’s Inheritance, then gave in evidence, by the books of the late Lord Proprietor, that John Dorsey, devisee of John Dorsey, the grantee of Dorsey’s Search, (•the original,) and those deriving title and claiming under him, always paid the quit rents upon the whole of Dorsey’s Search, (the-eriginal,) and Dorsey’s Search, (the resurvey,) from the year 1754 to 1774, that being the whole . " ", , / ° period embraced by said debt books, and that no ouit rent x ^ 1 was ever paid on any part of Dorsey's Search, (the original,) or Dorsey’s Search, (the resurvey,) or either of them, by any other person or persons whatsoever-, except John Dorsey, the devisee, Ely Dorsey, and the devisees of the last mentioned John Dorsey. And further gave in dence the following entry on the rent rolls, viz. “479 acres 19 2 rent. Dorsey’s Search, sur. 6th Decem. 1694, for John Dorsey, on Elk Ridge, beg. at 3 bound white oaks. Included in resurvey of Dorsey’s Search in Anne-Arundel county.” And further offered evidence, that Elizabeth 
      
      Dorsey, the widow of John Dorsey, the grantee of Dorsey’s Search, (the resurvey,) and mother of Ely Dorsey, departed this life in the year 1777. The defendant then prayed the court to direct the jury, that upon the whole evidence so given to them as stated in the several bills of exceptions, if they believe the same, they ought to find that John Dorsey, the grantee of Dorsey’s Search, the original, did in his life- time convey to Samuel Dryer all that part of Dorsey’s Search, the original, on the west side of Patuxent river, which is included within and hounded by the said i-iver, .and the lines of Dryer’s Inheritance; or that the said John Dorsey was actually ousted of all that part of Dorsey’s Search by Dryer; and that upon the said evidence the defendant is entitled to their verdict.
    Chase, Ch. J. The court have no doubt about the law as to the right of the court to instruct the jury to presume grants and deeds in cases where there is a proper and le~ gal foundation laid for the presumption of the jury, and the courts have frequently so decided, but that law is not applicable to this case.
    This is a case of conflicting grants and interfering locations, and the question between the parties depends on what is the true location of Dorsey’s Search, and Dryer’s Inheritance, and the court have already decided that question, and according to the opinion of the court the land in controversy is included within the limits of Dorsey’s Search.
    
    It is a principle of law, that he who has title to a tract of land, and is in possession of part, is in possession of the whole. A person holding land cannot occupy and use every part of his land, nor can he have every part under fence.
    It is a principle of law, that if two persons are in possession of the same land, the one by title, and the other by wrong, it is his possession who has the right.
    These principles are not only established by the decisions of the courts, and acquiesced iu, but are founded in justice and general convenience, favour right, and resist wrong and oppression.
    When Dryer entered on the land in dispute, and made improvements, he entered on it as Dryer’s Inheritance, claiming it as such; there is no evidence that he claimed it by deed from, or any contract with, John Dorsey, the grantee, nor is there any evidence that those claiming under Dryer claimed it otherwise than as part of Dryer’s Inheritance, but that they possessed it as such, supported that possession manu forte, and resisted all attempts by those claiming under Dorsey to recover the possession. Dorsey, the grantee of Dorsey’s Search, and those claiming under him, having the right to that tract, and being in possession of part, their possession pervaded the whole land, and was co-extensive with its limits.
    The court are of opinion, that the evidence in this case will not warrant the court to direct the jury to presume a deed from John Dorsey, the grantee of Dorsey’s Search, to Samuel Dryer, the grantee of Dryer’s Inheritance, and refuse to give the direction prayed.
    The court are also of opinion, that the entry and possession of Sarr.'tcl Dryer on the part of Dorsey's Search in dispute, were tortious; and if the jury find from the evidence that he and those claiming under him, were in the adversary, uninterrupted'and exclusive possession, by enclosures, of the land in dispute, for twenty years, that in such case the plaintiff will be barred of his recovery by the act of limitations, and if not in possession of the whole land in dispute, to the extent of such possession. The defendant excepted.
    6. The defendant then prayed the court to direct the jury, that by the will of John Dorsey, the eldest, if his Patuxent plantation was on the east side of the river, his grandson, John Dorsey, could not take any land on the west side of Patuxent river. Also, that if they believe that at the time of the deeds executed by Deborah Dorsey and by Henry Woodward Dorsey to Richard Ridgely, the grantors and the said grantee were out of possession of the land on the west side of the river, and that the same was at that time in the adverse possession of the defendant or those under whom she claims, nothing passed by those deeds, and that the legal title of the said land for which the ejectment is brought yet remains in Daniel Dorsey,
    
    A deviáe hi’ a tract of land by name, ami described a& lying in tí county, passed the whole tract$¡i¡0ioKpart of it lay in A, A county.
    Xf the grantor m a deed is. in possession otK part of the tract of land conveyed, that possession will extend to the whole n act, unless there had been an adversary, uninterrupted and exclusive 'possession by enclosures of a part of the land by some other person foi* 20 years prior to the execution of such deed*
    Chase, Ch. J. The court are of opinion that the whole of the land called Dorsey's Search, passed by the will of ■John Dorsey to his grandson, John Dorsey, as well that part lying on the west side of Patuxent river, as that lying on the east side of said river.
    The court are also of opinion, that if the jury find that Deborah Dorsey and Henry Woodward Dorsey, the grant - ors in the deeds to Richard Ridgely, were in the possession of part of the land of Dorsey’s Search, that possession will extend to the whole and every part of said land, and that the said deeds will operate t,o transfer the whole of said land to Richard Ridgely, unless the jury shall find an adversary, uninterrupted and exclusive possession, by enclosures, of part of said land by the defendant, and those under whom she claims, twenty years prior to the making and executing said deeds; and in case the jury shall find that the defendant, and those under whom she claims, had such adversary possession, in such case the said part will not pass by the said deeds to Richard Ridgely, The defendant excepted ; and the verdict and judgment being for the plaintiff, she appealed to this court .
    
      The cause was argued before Buchanan, Earle, MARriN and Dorset, J. , by
    
      Pinkney and Winder, for the appellant, and by
    
      Taney, Magruder and T, B. Dorsey, for the appellee.
    The points raised by the counsel in their arguments, being fully stated by the judges in the opinions delivered by themi, it is deemed unnecessary to notice them here, or the authorities to which they referred. ■
    
      
      The ca=e here referred to, was an action of trespass ijuare dimsumfregit, being a tract of land called Iiobin Hood’s Retreat. The defendant took defence upon plots made in the cause tor a tract of land sailed Robin Hood’s Forest, as cpvering the land on which the trespass was alleged to have been committed- AC the trial oí che cause at April term 1818, the defendant read in evidence the grant of Robin Hood’s Forest, in which that tract is stated as «lying in thefoikol Patuxent river, beginningata bounded white oak standing near the head of a branch, running from the said branch 8 W by W 180 perches, toa bounded red'oak standing pn tf e east side of the west great branch oi the said river, then bounding on the ^aid great branch running W N W 40 perches, ihen VV i? W 28 perches, then,” &c &c. «then N and by E • 16 perches to a hounded beech standing by the said great branch, then }nto the wopds JN E by N 220 perches to a bounded red oak,” &.c. And prayed the opinion of the court, and their direction lo the jury, that in locating the second line of Robin Hood’s Forest, they must mn the same from the boundary, (admitted by both parties,) marked on the plots at the letter E, binding on the said branch of Patuxent river, and then from the end thereof, run the thirty-two Following lines, course and distance, independently of and without regarding tHe preceding call in the grant of binding anji running with the said branch oí Patuxent river.
      Chase, Ch* J. 
        . The court are of opinion, that the true construction of the' grant of Robin Hood’s Forest, is to bind on the Patuxent river from the letter E on the plots, (admitted to be the second boundary standing by the east side of the great branch or the said river,) the several courses mentioned in the grant, to the bounded beech standing by the said great*0 branch. The expression toa bounded beech standing by the said great branch, coupled with the next expression, “then into the woods N E and by N 220 perches, to a bounded red oak,” and both combined with the words in the first course, “then bounding on the said great branch running W M W 40 perches,” and it appearing also by the grant, that when the surveyor left the river, he calls for a tree at the end of every course, indicate plainly the intention to have been to run all the subsequent
    
    
      
      
         Kilgour, A. J, concurred. Ridgely A. J. did not sit. courses on the j^reat branch to the beech, If there is net satisfactory prpot of the beech, or the place where it stood, then thq course N and by E 16 perches must terminate by the grer,t branch.
    
    
      
       The trial ol' this canse in the county court took up much time, anti the several questions which arose were greatly contested by Magruder and T x! Corset/ for the plaintiff, and by Martin; (Attorney-General,) and Bowie lor the defendant. The counsel for the plaintiff, in their arguments on the points raised on the first bill of exceptions, cited Norwood vs. Carroll, et al lessee, (Ante 155,) Ridgely, et ux. lessee, os. Norwood, I Harr. Johns. 128. 1 Phillips’ Evid. 410, 416 2 Bac. Ah 439, 649. 2 Seho. N. P. 780, 781 Chew’s lessee vs Weems, 1 Harr §p M'Hen. 463 And on the question raised in the ffth bill of exceptions, they cited Davidson’s lessee vs. Beatty. 3 Harr. 8? M'Hen, 621, and Cheney vs. Ringgold, et al. lessee, 2 Harr. Sf Johns. 87,
      The defendants counsel, in their arguments as to the questions in the first bill of exceptions, cited the act of 1790, ch 42. Soodright vs. Welch, 3 Wils 23 1 Madd Chan Pref. viii. Dorsey’s lessee vs. Hammond., 1 Harr. 8f Johns. 190. Calhoun 8f Roger, lessee vs. Hall, 2 Harr 8f M'Hen. 416.- Mageehan vs. Adams, 2 Birmy, 109. Thompson et al lessee vs. Brown, 1 Harr. 8f Johns. 335 Duvall vs. Jones, ( Ante 253 note ) Keech’s lessee vs Dansesf, 1 Harr 8f M'Hen. 20 hlewellin’s lessee vs. Fendall 8f Simmes, Ibid 242. Hamilton’s lessee vs. Cawood Blacklock, 3 Harr 8p M'Hen 437. Snowden 8p -iennings vs Jones, (in the land office.) Martin’s lessee vs Muse, (K. S. general court) Helms’ lessee vs. Howard, 2 Harr fy M'Hen. 84. Davis’s lessee vs Batty, 1 Harr. Johns. 264. Smith’s lessee vs Volgamot 8? White, 2 Harr. 8f M'Hen 155. Beltzhoover vs. Reneh, (December 1814.) Ashton vs Hammond, hand Hold Ass 407. And on the question in the fjlk bill of exceptions "they cited Bull. N- P 103.- Stra 1142, Cowp. 214, 217, 102. Ld■ Raym. 830. 12 Mod. 658, 659. Ball, on Stat. ch 2 12 Ves. 250, 205, Phil. Evid. 119, 120. 7 T R. 431,432, (notes ) 1 Bos 8? Pull. 399, 400, 401. 3 East, 298. 3 Sound. 175, (nates ) 3 T R. 151. ‘ 7 T. R. 492. U East, 488. & East, 212. 4 Burr. 1963. 1 Pow on Cont, 309,.
    
    
      
       Chase, Cb. J. having decided the .case in the conntv court, and Johnson, J. having been concerned as counsel tor the defendant in the.former action, did not sit.
    
   Buchanan, J.

This suit was instituted in the. county court of Anne-Arundei, for two tracts of land, called Dorsey's Search, one a resurvey on the other; and comes before us on six separate bills of exceptions, the four last of which, have been properly abandoned by the counsel for the appellant, the opinion of-the court below contained in each of them, being clearly right.

A former ejectment had been brought in the late general court, bn the demise of Daniel Dorsey, for the same lands, against Rezin Hammond, under whom the appellant claims, which was marked on the docket to be for .the use of ILchard Ridgely, the lessor of the plaintiff below in this case, and under whom Daniel Dorsey claimed as mortgagee, In that case, as in this, defence was taken for a tract'of land called Dryer's Inheritance, which being an elder tract of land than Dorsey's Search, (the resurvey,) it became important in the progress of the trial of the former suit, (as also of this,) to ascertain the true location of the tracts of land called Dryer's Inheritance and Dorsey's Search, (the original,) which depended on the construction to be given to the respective- patents. And the general court adopting the principle,- that it is -the peculiar province of courts to expound all grants, except in the case only of a latent ambiguity, instructed the jury that the fifth or last line of Dryer's Inheritance could only be cori rectly located, by running a straight course from the end of the fourth line, to the beginning. And that according to the true and proper construction of Dorsey's Search, the first line should be run binding on the river Patuxent, and the eight following lines, according to the courses and distances expressed in the certificate and grant, and not to bind on the river Patuxent; and the jury gave a verdict for the plaintiff accordingly.

The case was taken to the former court of appeals, on bills of exceptions, and that coui t assuming it as a principle, that in all cases of ambiguity arising on the face of a certificate or grant, as to the location of a tract of land, the jury is the proper tribunal to decide the fact of location on evidence de hors the instrument, reversed th§ judgment of the general court, and sent the cause back by procedendo, and on a new trial the defendant got a verdict; which presents first, the question, whether that opinion of the court of appeals is binding and conclusive on this court?

It is readily admitted that no argument in support of the negative of the question can be drawn from the circumstance, that that court is not now in existence; and that if it woqld have been binding on that court, in a subsequent suit brought for the same land, and depending on the same evidences of title, it is equally binding on this, and should be examined without reference to the abolition of that tribunal,

Tfie original constitution of this state, in distributing tha powers of the government, provides by the 56th article, “that there shall be a court of appeals, composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive in all cases of appeal frgm the general court, court of chancery, and court of admiralty,” which words, “whose judgment shall be final and conclusive in all cases of appeal,” &c. are supposed to be declaratory of the quality and legal effect qf a decision of the court of appeals. And it has been urged with a commanding force, that in virtue of that provision of the constitution, a decision of that court is conclusive as to the subject matter of the decision, in any subsequent suit for the same thing.

It is conceded that the expressions taken literally, are broad and comprehensive, but it seems to me, that the terms used, must be construed with reference only, to the thing intended to be created—a constitutional court of appeals— and can alone be understood, to mean, that the court of appeals go provided for, should be a tribunal of ultimate resort, and that there should not be created any higher court of appellate jurisdiction; intending only by the words, “final and conclusive in all cases of appeal,” that no suit taken to the court of appeals, after being adjudicated there, should be further prosecuted by appeal, to any other tribunal, that each particular case of appeal, should terminate and conclude with the judgment of that court; thus constitutionally guarding against the establishment by the legislature, of any other superior court of appellate jurisdiction; and not that the decision should be conclusive, as to the rights of the parties to the subject matter in controversy, in any other suit. And I believe the constitution has never heretofore been otherwise understood.

To construe it differently, and according to the literal import and signification of the terms used, would be to extend their binding quality, further than would perhaps be seriously contended for, so far at least, as respects the action of ejectment, It would be to render a judgment of the court of appeals binding-and conclusive upon all, whetherparties or strangers, for it would be difficult to prescribe bounds to its operation, and to pxempt strangers more than parties, from the effect of its binding influence. Unless indeed, in favour of strangers, the constitution should become the creature of arbitrary will, and be made to bend to suit the particular case, seeing that a literal interpretation admits of no distinction between parties and strangers; it is therefore binding upon all, if upon any, in any subsequent suit for the saíne land. And yet it is a settled principle, that the verdict and judgment in one action of ejectment, is n o bar to a recovery in another, but that a party interested, may sue for the same land as often as he thinks proper; every new action of ejectinent being supposed to be between different parties.

The act of 1790? chapter 42, which was also pressed into the argument, does not reach the question. Until the passage of that law, all causes that were carried to the court of appeals, terminated there. The judgment of that court, was final in each particular case of appeal, according to the literal provision of the constitution, and no further proceedings were had. And q plaintiff' against whom an erroneous judgment had been rendered, in the inferior court, which was reversed in the court of appeals, was under the necessity of, commencing de navo. And even this lie could not have done, if the judgment of the court of appeals'had, according to the literal sense of the terms, been final and conclusive, for that would have arrested any further proceedings- But that was never supposed, and to remedy the inconvenience of being driven to bring a new suit, the act of 1790 was passed, which directs, that in all cases in which the judgment of the general court shall be reversed by the court of appeals, on writ of error or appeal by the plaintiff, (and also in certain specified cases, where the appeal is by the defendant,) the transcript of the record shall be returned to the clerk of the general court, with a writ of procedendo to the judges of that court, directing them to proceed to a new trial of the cause, and that the opinion of the court of appeals shall be conclusive in law, as to the question by them decided.

The expressions, “and that the opinion of the court of appeals shail be conclusive in law, as to the question by them decided,” are relied upon as rendering the opinion of that court, conclusive as to the right of the parties, in any subsequent suit brought for the same thing. But however comprehensive they may be abstractedly considered, when construed as they must be, with reference to the subject matter to which they are applied—to the mandate of the procedendo, which they may be said to accompany, they can only be understood to mean, that the opinion of the court of appeals shall be conclusive upon the judges of the general court, on the new trial of the particular suit, so sent back to them, and can have no reference to any subsequent suit.

If any thing was wanting in support of this construction, that aid might be borrowed from the act itself, which has the very same provision, in relation to cases removed to the general court from the county courts; with this further provision, “that the party against whom judgment shall be rendered by the general court, may appeal, or prosecute a writ of error to the court of appeals.” Now if the expressions used, that is, “that the opinion of the general court, shall be conclusive in law, as to the question by them decided,” are to be understood according to their literal import, it would be useless to appeal from the judgment of the general court, and the provision giving to the party the right to appeal is grossly absurd, since the judgment of the general court would be conclusive upon the court of appeals, and the appeal could afford no relief, which it cannot be presumed was the intention of the legislature. Hence it would seem to follow, that the judgment of the general court, was only intended by the legislature, to be conclusive upon the judges of the county courts, on the new trial of the particular suit sent back to them by procedendo, and not to relate to any new or subsequent suit. And if so, as the same words, used in the , same law, and applied in the same manner, must be taken to have the same meaning, the opinion of the court of appeals can only be held tobe conclusive upon the judges of the general court, in the trial of the particular case sent back by procedendo, and no further.

the general court for new trial, without directing, “that But though the act of 1790, chapter 42, will not bear the construction attempted to be given to it, yet it serves to shed a ray of light on the subject, by the aid of which we are enabled to discern what was the legislative interpretation at least, of the 56th article of the constitution in the year 1790. For. if under that article, a judgment of the court of appeals was held to be final and conclusive beyond the mere appeal adjudicated by them; if it was deemed conclusive of the very right to the thing ‘in controversy, it would of course have been thought quite sufficient, to make provision only for sending cases back to the opinion of the court of appeals, should be conclusive in law, as ,to the question by them decided Since if conclusive as to the right of the parties in another action, it would on th& procedendo have been binding upon the judges of the general court, under the constitution, and they must have conformed to it, without that enactment. Hence it is clear, that neither the legislature, nor he who drew the law, and who was obviously acquainted with the judiciary system of the state, and the powers and practice of the courts, understood the constitution to mean, that a judgment of the court of appeals should be binding in any subsequent action, or that it should be any further final and conclusive, than as it put an end to the. particular appeal in which it was given, and to all further proceedings in that suit by way of appeal. And the whole subject must have been before them, and under consideration, from the very nature of the inconvenience intended to be remedied by the writ oí procedendo. What is said of the legisIative interpretation of the constitution, applies as well to the legal effect and operation of a judgment of the court aPPea^s on general principles, as a court of last resort, for if binding at all, whether by the constitution or on general principles, the provision spoken of in the act of l'J90ft was equally unnecessary. Nor is it believed, that there is any reason in sound policy why it should be absolutely binding. It ought indeed to be so far respected, as to secure to it, all the beneficial results of a binding quality, without its inconveniencies.- It should always be approached with hesitation, and never should be lightly shaken.

Thus guarded, it stands as secure as sound policy could wish. But even if it should be admitted, that under the 56th article of the constitution, a decision of the court of appeals on the legal merits of the case, is binding as to the subject matter of that decision, in a subsequent action, between the same parties or those claiming under them, for the same thing, or that independent of the constitution, that would, on general principles be the legal effect and operation of such a decision by a court of last resort; then this question presents itself, Is the opinion of the court of appeals, in the case of Hammond and Dorsey of that character? And it appears to me that it is not. No decision was made by that court upon the legal merits of the case; the question there presented, arose on the construction of two grants, as to the location proper to be made of the lands, which necessarily involved the legal rights of the respective parties, but on which, the court gave no opinion. On the contrary they declared, that “in their opinion, the expressions used in neither of the grants, were so plain and explicit as to exclude all doubt, and that they did not mean to say, in what manner either of the tracts of land ought'-to be, located,” thus declining to give any construction to either of those instruments. But assuming as a general principle, “that in all cases of ambiguity arising on the face of a certificate or grant, as to the location of a tract of land, the jury are the proper tribunal to decide the fact of location on extrinsic evidence,” they reversed the judgment of the general court, without determining whether the construction given, to the grants by that tribunal, was right or wrong; leaving the question of law, as to the true and proper construction of the grants, entirely open, and undecided, and referring to a jury, (as it would seem,) not the construction of the grants, (for they have not .said that that was' a matter proper to be left to a jury;) but ihe fact of the original running or location, separate from, and independent of the . grant. So, that in point of fact, ho construction has ever been given to the language of those grants* either by the court of appeals, or by a jury. All that was in reality done by the court of appeals, was to réfuse to decide the questions of law submitted to them, and to send the, casé back to be decided by a jury on a different question, a question of fact, out of the grants. Arid to give to the refusal of that court, to expound the grárits in question, the effect to preclude all other courts from doing áo, would be to make a verdict of a jury, on a fact of location, distinct from the expressions of tlie grants, binding and conclusive on the rights of the parties in any subsequent ejectment for the same land; a property not legitimately belonging to verdicts in actions of ejectirient.

But if the opinion of the court of appeals can be understood,, as casting the construction of the grants of Dry•er’-s Inheritance ■ and Dorsey's Search on -the jury, it is merely an opinion on a question of Jurisdiction; an opinion that it was a matter fit to be left to a jury, and not a decision on the legal, effect and operation of the grants, not a judgment pronounced on the légal merits of the parties. And with all the deference due to the constitution Of that tribunal, and to the character and’standing of the individuals who compose it* I do not think it binding upon this court. Nor is it fit that it Should be; the principle oil which the opinion is expressly founded* is denied to be law, and has since been solemnly overruled in several cases; and if thé opinion* the principle of which has been So ruled to be erroneous, stands at all, it must stand without legs; and they who claim under it, must hold contrary to the acknowledged law of the state, and the established rule for the exposition of all other grants. And thus there would be two received rules for the. construction of grants, one governing Dryer's Inheritance and Dorsey's Search, and the other applicable to, and pervading all other grants; .the two rules altogether inconsistent with* and repugnant to each other, arid yet each of them equally available- in the courts of law of this state. ./ ' ’

Bút Í caiiriot perceive why, on any principle either o(J ^aw Or policy, an opinion of any court should be deemed rif binding authority; when the! foundation of that Opinion is taken avtayj It is the principle that should govern,’ the substance and not the shadow. 'Sound policy does indeed require, that principles laid down, and acted upon by-courts of last resort, should not be.lightly shaken, as it rs to established principles, and not to isolated opinions, that parties look in making their contracts. But when the assumed principle of an opinion in any case has been annulled, the opinion should fall with it, and the subject matter be made to rest, upon the settled rule governing all other like cases. . _

It Cannot be denied,- that Richard Ridgely, the lessor of the plaintiff" below, was substantially á party in the case of Hammond and Dorsey, but ‘as neither the opinion of the court of appeals, nor the verdict and judgment in that case, can be relied upon by way of estoppel^ (which certainly has nothing tci do with the case as it is presented,) it is unnecessary to go into any examination of that doctrine This case then, I think,- stands altogether, uftaftected by that of Hammond and Dorsey, and as it has been ruled by this court,- in several recent cases, and particularly in the casé of Pennington vs. Bordley’s Lessee, at June term 1819,’ that the construction of a grant,- falls peculiarly within the province of ,the court, and is not a matter fit to be left to a jury, except only in a case of latent ambiguity, the construction proper to be given to' the grants of Dryer’s Inheritance and: Dorsey’s Searchj remains only to be examined-.;.

■As tó Dyer’s InheHiancé the" only difficulty is,* in détefmining- how any doubt could ever have existed; for if one grant can- bé mofe .clear and explicit,- and more free from ambiguity than another, it is the'grant for Dryer’s Inheritance, in the description of the fifth oí last Unte, which forms the Subject of controversy.- The expressions áre, “then)” (that is from the end of the fourth line,) “by a straight line to thé first bounded tree,” which must and can only be located, by running a straight course from the end' of the fourth line, wherever that ro.ay be,- to, the -beginning tree•,and- the meanders of the river Patuxent, as contended for, cannot be pursued without a direct violation of the grant.- "With respect to Dorsey’s Search^ if-there is any ambiguity, it is clearly patent, and falls with» in the rule established in the case of Pennington and ~ Dordley. But if the grant alone is looked to, without recourse to extrinsic matter, there will be found no difficulty in expounding it, and it is only by resorting to matter de hors the grant, to contradict, and not to explain it, that any difficulty has been produced.

By inserting the word “running,” immediately after the word “.then,” at the beginning of each line, the sense is made complete, and every word in the grant will be gratified; and it is not proper that any thing more should bq. understood, than that which is necessary to, perfect the sense. The words, “and bounding on the said river,” cannot be introduced without evident risk to one half of the description given in the grant; for if in point of fact, the meandei;s of the river do not correspond with the courses expressed ip the grant, to adopt the words, “and bounding on the said river,” (as is insisted on,) would be to reject the courses altogether, since under the authority of a long course of decisiqns by thy courts of this state, the binding call on the river so adopted would be peremptory; and thus by arbitrarily adopting what is not necessary to perfect the sense, that would, be defeated which is plainly expressed in the grant, thq description, by courses and distances. I agree therefore in opinion, with the judge before whom the cause was tried on each exception, and think that the judgment ought to be affirmed.

Earle, J.

There are several exceptions in the record; of-this case, brought up by the appellant, the defendant, in the court below. The arguments of her counsel have a bearing on the three first only, and the rest, it seems to be admitted by them, are'correct decisions, and ought to’, be.. affirmed.

in the first exception the county court decided, that between the same parties, and those claiming under them, the judgment of the court of appeals, on the same question of law, is conclusive, but that Richard Ridgely, the lessor of the plaintiff below, could not be concluded by the question of law decided in the court of appeals in the case of Daniel Dorsey’s Lessee, use of Richard Ridgely, against Rezin Hammond, because in a legal view he was not a party to that suit, and claimed in this action by a title paramount the title of Daniel Dorsey; and in the same exception the court further determined, that the construction of grants belonged exclusively to the courts of justice, except in the single instance of a latent ambiguity,, where alone is devolved on the juries of the country, the right of exposition, aided by evidence de hors the grant..

In the second exception, the parties were fairly before the court on the true meaning of the certificate and grant of Dorsey’s Search, (the original,) and the court below decided, that after its first line, the tract was to be located to run with course and distance only, and was. not to bind on the Patuxent river in any of its lines, except the first.

The third exception is a recapitulation of the first and second as to the court’s opinion of the construction of the certificates and grants of Dorsey’s Search, (the original,), and of Dryer’s. Inheritance, which last tract, in its last line, it was determined by the court, ought to be located with a straight line, and not circuitously with the windings of the river.

These exceptions, connected with the argument in the cause, have presented a question for the decision of this court, of high interest to the parties concerned, and of great moment to, the public at large. It is a question which involves in its consideration, the legal effect an adjudica-, tion of this high court of judicature is to have on its own future operations, and being in every view momentous, it, has engaged the best reflections, and the utmost attention of the judges,

There must reside in every court of supreme authority, and especially in this of appellate jurisdiction of last resort, a capacity of revising and correcting its own decisions. That such a power rests in this court, has been conceded in argument; and yet a construction of the 56th article of the constitution is insisted on, that seems to deny its existence. If, as it has been said, it is the literal meaning of this article of the constitution to, make a judgment of the court of appeals final and conclusive in all future cases, in what case is. it we are to exercise an authority to review and abrogate its decisions? This construction is so at variance with the very nature of courts of justice of supreme jurisdiction, it is fair to infer that such is not the intention of the constitution; and indeed, it appears to me, the expressions employed are inserted for a. quite different purpose—either to describe and character rise the court established, or to restrain apprehended legislative encroachments on the judicial functions of the state.

The generality • of the expressions of this article of the constitution excludes the idea of an intention to make a judgment of the court of appeals final and conclusive on the same question of law between the same parties. Had this been the object, more appropriate language would have'been used to express it; and that it was not the object js deduciblefrom the consideration that it whs-wholly unnecessary in every other action, except the action of ejectment, in which the propriety of it may be questionable. In all other actions, but ejectment, former recovery may be pleaded in bar, and this, by the rules of the common jaw, without the aid -.of constitutional provisions. Moreover, if this h¡ad been understood to be the' cléar meaning of the 06th article of the constitution, a part of the act of 1790, - chapter 42, was superfluous legislation. On the return of a record with a procedendo, the opinion expressed in the -case would have been conclusive without enacting that it, should be so.

Having expressed my. opinion, that the article referred to in the. constitution does not render a judgment of the court of appeals, on the same question.of law, conclusive between the same parties, I am equally decided, that the act of 1790, ch. 42, does not make such judgment conclusive, except on the subordinate tribunal to which the- record is returned on a pro cider, do. I.t is, to be .remembered, that this act of the legislature speaks of more appellate jurisdictions than one, of the appellate jurisdiction of the -general court, as-well as of ihe court of'appeals; and if the opinion of the inferior appellate court is'conclusive because it has been" before expressed on the, saqie subject matter between the same parties, it must- have that effect in the same case between the same.parties whenfit appears^in the supreme appellate court;" that is, -the" opipiofi of the inferior must govern the opinion of the superiorappellaic.jurisdiction. This cannot be the meaning of -the act, and thence. it is to be inferred, that tjie opinion expressed in the appellate court was-intended to be conclusive only" on the court to which the record is returned on the procedendo. It is admitted in this last case, such opinion of the superior court lias a bjpding force on the inferior tribunals. and if the injunctions of the law are obeyed by the county court, on a second exception the court of appeals will affirm, not because the opinion is approved, but because a, court cannot err that obeys the positive injunctions of thq law. This is the amount of the cited decisions between Tenant and Ilambleton, and Mundell’s lessee and Clarklee, and it was never intended' that those decisions should bq understood in any other way.

The solemn adjudication of an appellate court of last resort, I am free to admit, ought, on general principles of judicial propriety, to be approached, with caution, and perhaps they should never be disturbed, except to settle some great rule of property the public interest requires to be reviewed. On a second trial in ejectment between the same parties, and those claiming under, them, on the same subject matter, I shopld say they ought to be. considered conclusive, unless, which is hardly, a, supposable case, glaring injustice has been, done,' or. some egregious blunder has been committed. But to give the binding decision those conclusive qualities, it ought to be explicitly declared, and perfectly understood, and to become the law of the case it ought definitively to settle the .rights of-the litigant parties. If an exposition is given to a will or. deed, fully defining the rights of the parties, or any other opinion is expressed settling the title to the thing in, dispute between them, it should be deemed irrevocable, and never again touched, where the same persons, and those claiming under them, are concerned in the contestation. Bichará Bidgcly, the lessor of the plaintiff, was for every substantial purpose, a party to the ejectment formerly decided in the court of appeals between Daniel Dorsey and Rezin Hammond, and if that court have disposed definitively of the subject, and fully and explicitly determined the rights of tire parties, this court ought to yield to the judgment, whatever our individual opinions may be of its correctness. This is not, however, in my apprehension, the character of that decision; so far from settling the meaning of the certificates and grants of Dorsey's Search, the original; and Dryer's Inheritance; so far from determining to whom the controverted land was originally granted, by a sound construction given to these documentary papers, the court'of appeals have declared the courts of justice, and themselves inclusively, utterly incompetent, in point PF law, to give an exposition to them. That court has only adverted to those papers to say, that the office of locating those tracts, according to the meaning of these papers, to be come at through the medium of extrinsic testimony, belongs alone to another tribunal—to a jury of the country—and not to the corirt of justice. Agreeably to these ideas of the court of appeals, a jury has been allowed to act on the case, and the inconclusive nature of their verdict, being a verdict in ejectment, need not be dwelt upon. By thus acting, the court of appeals as effectually dismissed the case, in my'idea, from their consideration; as if they had referred the decision of it to a distinct unconnected court or jurisdiction, whose adjudication certainly could not be said to express the opinion of the court bf appeals. It is then my deliberate opinion, that the judgment of the court of appeals in the case of Daniel Dorsey’s Lessee use of Rickard Ridgely, against Rezin Hammond, ought not to have been considered conclusive by the court below, and by refusing so to consider it, that court has not erred.

It remains for me to say a few words on the construction of the certificates of Dorsey’s Search, (tire-original,) and Dryer’s Inheritance. An,d here I entirely coincide iu the opinion pronounced by the learned judge in the court below. With him I think, that Dorsey’s Search, (the original,) is to be located by course and distance in all its lines from the first to the second tree, except in its first line, which it is admitted on all hands is to bind on Patuxent River. Among the objections urged to this construction, the principal one appears to be, that the word “running” cannot be carried on from the first to the second and other courses, to render the sense perfect, without taking with it the words “binding on the river,” and that there is a grammatical impropriety in disconnecting the one from the other. The solidity of this objection is not perceived by me, and a case may be readily stated, where the latter expressions, “binding on theriver,” might not only be dropped, but where to connect them with-the word “running,” in the subsequent courses, would be to oppose the acknowledged meaning of the sentence. Let us suppose that the expressions in the certificate had been thus; running and binding on the river the tico first of the following courses, viz. N 4° E 87" perches,, iheii North 62° E 50 perches, then Ñ 21° E 170 perches; and so on through all the courses of the certificate; to connect the latter words, “binding on the river,” with the former word “runniiig,” ánd apply them to the third course, it would read ‘‘then running and binding on the river N 21° E 170 perches,” in direct violation of the expressed hi caning of the surveyor, who has declared that the two first Only of the courses of the certificate should run and bind on the river. This point of construction is susceptible of much further elucidation, but 1 have only touched it to express my opinion on it, which I believe is supported by all the members of the court who have heard the argument» The question arising on thé construction of the certificate of Dryer’s Inheritance is too plain for discussion» It is most obvious, that the last, or horite course, must be run with a straight line, and cannot be run with the meanders of the river, there not being a single expression any where to be found to sanction such a location.

I concur with the county court in their decisions on each of the exceptions, and in my opinion their judgment ought to be affirmed.

Martix, J.

I think the judgment of the court below, in the first bill of exceptions, is erroneous, and ought to be reversed; but I confess I feel great diffidence in my opinion, when in opposition to that of the learned gentlemen with whom I am associated.

In the trial of this cause several bills of exceptions were taken by the defendant to the opinions given by the court^ but as the three last have been abandoned by the appellant, it is necessary for this court to consider the two first exceptions only.

It appears from the rec'ord in this case, that the tract of land called Dorsey’s Search, was granted to John Dorsey in the year 1694, and was afterwards vested in Richard Ridgely, who conveyed it by a deed of mortgage to Daniel Dorsey. That an action of ejectment was brought in the name of Daniel Dorsey, the mortgagee, in the general court, to recover the possession of part of this tract from Rezin Hammond, the then proprietor of Dryer’s Inheritance. That this action was instituted by Richard Ridgely, for his use and by his direction. That he alone conducted the suit, employed counsel to sustain it, paid all the expenses, and remained in possession of the land. That a verdict was rendered against Rezin Hammond, who appealed to the court of appeals, where the judgment of the general court was reversed. That Richard Ridgely, having paid the money due on the mortgage, obtained a deed of release from Daniel Dorsey, and instituted this suit against the present defendant, who claims under Rezin Hammond, for the same land claimed in the fir}st ejectment, I have given this shoi't statement of' the case to show the relative situation of the parties in both ejectments; That Richard Ridgely was the substantial plaintiffin both cases; that they were commenced by. his direction, and. prosecuted solely for his use and benefit; find thei-efore, for all the purposes of the question now before uS3’ were the same parties, or those claiming under them-;

Whether a .judgment of the court of appeals is conclusive upon the" question decided by them, between the same parties in interest, or those claiming under them, is presented to us in the first bill of exceptions; and in forming my opinion upon it, I have rested; in a great measure, up • on the constitution of Maryland.. Policy, public convenience, and the security of purchasers, are worthy the consideration of the court. They are powerful auxiliaries in this case, but I think the Constitutional provision is peremptory, and conclusive Upon it.. . '

In the organization of the judicial system of this state; courts have been established with original jurisdiction, and in the course of judicial proceedings, either party may call in the aid of the court to decide upon questions of law; The judges thus called on are authorised to éxpound tiré law, but their decision is not conclusive upon it. It maybe carried to a higher tribunal for adjudication. The court of appeals has jurisdiction of it, out when decided by that court, it is no longer subject tobe' revised. Iii the emphatic language of the constitution, it is final and conclu- . sive; the question decided is put to rest; Do court shall have a power .to revise it; all courts shall be bound by it. The constitution declares, there shall be a court of appeals, whose judgment shall be final and conclusive in all cases of appeal from the general court, court of chancery, and court of admiralty. It is declaratory of the power and effect of ajudgment'in the court of appeals: And is not conclusive~ ness of decision consistent with the character and dignity of a tribunal of the last resort? The object to be attained is cerlai/niy a point at which controversy shall cense; hut this desideratum is defeated if it is still open to revision. It is a solecism of terms to say, a decision is final and conclusive, when it is subject to change and alteration.

It appears to me, no language can be more comprehensive than that of the constitution, and it must be conceded, no violence is done to it by my construction. No words of restriction; no words of limitation or explanation, are added to it; and I would ask, if the convention meant that the judgment of the court of appeals should not be subject to revision, what words would they have used more clearly to evidence that intention? Can human ingenuity suggest any terms by which it would be more fully expressed than that the judgment shall be final and conclusive? If it was intended merely to prevent the creation of other tribunals of justice, why was it not so expressly declared? Why use terms of universal import, if they were to be taken in a limited sense, unless indeed it was the object of its framers to give' to that august instrument, all the uncertainty which, it seems from the argument,- ought to belong to a decision of the highest tribunal in the state. Since then the language of the constitution is of general, and indeed universal import, I think we ought not to give it a limited construction, by which the law will be rendered fluctuating and uncertain, and a door will be opened to unceasing controversy.

This is my view of the constitution, and if it is not correct, what would be the consequence of it? If a judgment be reversed by the court of appeals,, and a procedendo awarded, it is admitted, by the act of 7790, the decision would be conclusive, on the question decided, in a second trial, and the court would be bound to conform to it. Yet although they would be bound to -conform to it in the second trial, if anew ejectment was instituted, and the same question was brought before the same court, between the same parties, at the next term, the decision would lose all its binding effects, and the court would be at liberty to-set it at defiance. To day it would be binding and conclusive upon the inferior court; to-morrow it would cease to be law, and be disregarded by them. Litigation would be in a circle with no point of certainty on which, it could rest.

It next becomes proper to inquire, what were the quesiions on which the general court and court of appeals differed, and whether those questions affected the merits of the case depending?

It was determined in the general court, there was no .ambiguity or doubt in the grant of Dryer’s Inheritance; that the court, and not the jury, were to give the construction of it; that the gi’ant was tp be construed by itself, and testimony extrinsic of the grant was not legal evidence to aid in its construction; and upon fhe same principles, the court, and not the jury, gave the construction to Dorsey’s Search. The court of appeals negative and reverse all those opinions of the general court. They say, there is doubt and uncertainty on the face of those grants; that the court had no authority to construe them; that they ought to have been submitted to the jury, who were the legitimate tribunal, with the aid of extrinsic evidence, to give their true construction; and for those errors they reverse the judgment of the general court. This is the construction I' give to the opinion delivered by the co\\rt of appeals. It is true, the language used by them is not very clear; and explicit; but if they did not differ vyith the general court, and differ in essential points, why did they reverse their judgment? And why did the decision of the cpujrt of appeals govern the court below upon the procedendo, and produce an effect in direct opposition to. that of the opinion of the general court in the first trial? For we find in the first trial, the court gave the construction to the grants, and the verdict was for the plaintiff. On the procedendo the construction of the grqnts was submitted to the jury, and the verdict y/as for the defendant.

It has been contended, that no construction has been given by the court of appeals to those grants, aud therefore the decision has only established a general principle, and, not the law of the grants. I admit the court of appeals have not given a full construction to them; they have not said whether their expressions were binding. But can it be a correct position, that because the court of appeals have not decided every question that could arise in a cause, that therefore its decision should not be conclusive upon those hey did decide?

Altho’ they have not given a full construction to those grants, they have given a character to them, and they dedared that the jury, and not the court, was the proper trito constipe them. The general court held the decision to be conclusive, and conformed to it. In the trial of- , this ejectment^ the same questions were presented to the county court, and in my opinion, the decision of the court pf appeals was as conclusive upon them as upon thegeneral court.

Upon the second bill of exceptions, I concur in the opinion expressed therein by the court below. The binding expressions in Dorsey’s Search ought to be confined to the first line, and cannot be extended further.

Dorsey, J.

delivered his opinion, which we regret we have not been able to procure, in which he concurred with Judge Martin.

Winder suggested to the court, that as they were equally divided in opinion, no judgment could be rendered; bpt

The Court directed the judgment to be entered affirmed. See Dighton vs Grenville, Cole’s cases, in Parl. 66, where the judgment was affirmed, there being three judges for re • versing, and three for affirming, so that a majority being required to reverse the judgment, it was of course to stand.

JUDGMENT affirmed.  