
    Ross vs. Turner’s lessee.
    
    Where a tract of land calls to begin at three hickories, the north east corner of David Ross’ 1550 acre survey, on the west boundary of E. Harris, and the grantor, who is agent for Ross, in 1815 marked three hickories where he supposed his beginning corner should be, the assignee of the grantee cannot abandon the corner so marked, and run for course and distance, after a considerable lapse of time. He is estopped by the fact of the corner being marked by the grantor, and the calls of the grant.
    The controversy as agreed, is where the true south boundary of a tract of one hundred and fifty acres, granted to Thomas Hopkins, shall be fixed. The grant calls to begin at three hickories, the north east corner of David Ross’ 1550 acres, oil the west boundary line of Edward Harris’ 228 acres; north with said Harris, 82 poles, to his north west corner-, on the south boundary of James Lewis’ 2000 acres; with the same, 293 poles, to a stake; thence south, 82 poles, to the north boundary line of the before mentioned 1550 acres; and with the same, east to the beginning. The 1550 acre tract is holden by the oldest entry and grant. The northern boundary line was not marked by the surveyor in 1809, when he surveyed; the north west corner was; but the north east and beginning corner of the 150 acre tract was not.
    In 1815 Hopkins surveyed his 150 acre entry. Gray, the surveyor, marked the three hickories, S2 poles south of the north west corner of Harris’ tract, as the north east corner of Ross’ 1550 acre tract, and as the beginning corner of the 150 acres, and marked one line; he does not say which. For these three hickories, the grant calls as a beginning. To run to the needle, the northern boundary of the 1550 acre grant, east from the marked and undisputed north west corner, will leave the hickories to the north, but to run to the true meridian, at a variation from the needle, five and a half degrees north of east, will' leave the hickories to the south. At the time Hopkins’ survey was made, in 1815, he was the agent of David Ross, in relation to his lands in that section of the country, and had been for a long time before. Hopkins was along with Gray, the surveyor, when the three hickories were marked, and the survey for the 150 acres was made. They searched for Ross’ north east corner on Edward Harris’ line, and not finding any, they fixed on a place about where they believed it ought to be found, and Gray marked the three hickories as the beginning corner of Hopkins, and the corner of Ross. ■ This he did by the directions of Hopkins, or with his assent. Defendant never occupied any land north of a line running west from the hickories, and from the hickories west there is a marked line, which has been represented as Ross’ line. By the charge of the court, the case before the jury was made to turn on the principle of surveying, whether the northern boundary of the 1550 acres should run to the needle, or to the true meridian. The jury found the line should run to the needle, and of course for the plaintiff; Turner, the owner of the 150 acre grant, placing the south east corner of the 150 acre tract 34 poles south of the three hickories.
   CatRON, Ch. J.

delivered the opinion of the court.

The finding in this case, the court thinks manifestly erroneous. The beginning comer of the 150-acre tract (the three hickories) was marked by Hopkins for himself, and for'Ross, by his agent Hopkins. The grant calls for it, and the assignee of Hopkins cannot abandon it at this late day, and resort to course and distance. He is estopped by the fact, and by the calls of his grant. Had Hopkins even marked the corner and dividing line after both grants issued, he would have been concluded by it, as this court decided in Houston vs. Davidson. The judgment will be reversed, and the cause remanded for another trial.

Green, J, did not sit in this cause.

Judgment reversed.  