
    *Lovell v. Arnold.
    Wednesday, April 3d, 1811.
    t. Writ of Right—Declaration—Count —Certainty. A count upon a writ oí right describing the land demanded as a certain number of acres, part of a larger tract, and setting forth the boundaries of such larger tract. Is sufficiently certain after verdict.
    2. Land — Tracing Title — Evidence —- Decree between Other Parties.—In tracing a title to land In controversy, a decree in a suit between other parties, is not evidence, against a person claiming under neither of them, that one of those parties was, in fact, as therein described, eldest son and heir of a former proprietor: it being incumbent upon the party, wishing to avail himself of such fact, to prove it by evidence aliunde, bnt such decree may be received (as a link in the chain of evidence) to prove the fact that it was rendered.
    3. Judicial Sale-Deed-Effect of.—Quaere, whether a deed to a purchaser, at a sale directed by a decree, conveys any title, without a subsequent decree confirming the sale?
    4. Bill of Exceptions—Description of Documents Referred to.—Qumre, how far ought documents, referred to in a bill of exceptions, to be described to make them properly part of the record?
    On a writ of right, sued out of the district court holden at Franklin court-house, on behalf of Elisha Arnold against Markham Lovell, the count demanded “a tenement containing sixty acres of land with the appurtenances, in the county of Franklin, and within the jurisdiction of the district court of Franklin, held at Franklin courthouse, and which said sixty acres of land are included in a larger tract of eight hundred and fifty acres, and which eight hundred and fifty acres, so including the said sixty acres, are bounded as followeth, to wit: beginning,” &c. setting forth the boundaries of the larger tract. The tenant in his plea described the land precisely as it was in the count; and issue was regularly joined. An order of survey was made, and a plat and certificate of survey returned to the court showing the quantity of land, in the tenant’s possession, claimed by the demandant, to fie fifty acres, and delineating the boundaries of those fifty acres particularly. The jury found a verdict for the demandant “for the fifty acres of land with the appurtenances in the count mentioned, and which said fifty acres are delineated and described in the surveyor’s report by the black line marked A. 6, 7, B. and the dotted line marked C. D.”
    On the trial of the cause a bill of exceptions was signed and sealed in the following words: “Be it remembered that, on the trial of this cause, the demandant, in deducing his title to the land in controversy, introduced in evidence a decree of the
    high court of chancery, *in these words, , and also a deed from Andrew Ramsey, in these words, ; to the admission of which, the tenant’s attorney objected, as the decree was betwixt different parties from those now in court, and also because it was improper, by said decree, to prove that Andrew Ramsey was the heir at law to Patrick Ramsey, there being no other evidence to nrove that fact: the said deed was also objected to, there being no evidence that a sale was made in pursuance of the decree; but these objections were overruled, and the said exhibits admitted to go to the jury as evidence; to which opinion the tenant excepts,” &c.
    The court gave judgment according to the verdict; whereupon the tenant appealed. The transcript of the record contained copies' of a number of documents appearing to be the title papers of the de-mandant; none of which, however, were properly made part of the record, by being referred to in the bill of exceptions. According to these exhibits, the demandant’s title to the whole tract of eight hundred and fifty acres was regularly deduced from a patent granted to Obadiah Woodson in 1751, through several intervening conveyances, in January, 1774, to a deed, purporting to be absolute, from Archibald Gordon to Patrick Ramsey. The next exhibit was a decree of the high court of chancery bearing date the 15th of May, 1792, in a suit between Archibald Gordon, plaintiff, and ‘‘Andrew Ramsey, eldest son and heir of Patrick Ramsey, an infant, by Elizaheth Ramsey, his guardian,” and others, defendants; according to which decree two conveyances from Archibald Gordon to Patrick Ramsey were considered as securities for money lent; a certain time for redemption was allowed; a sale by commissioners in case of failure to redeem, was directed; and Archibald Gordon, and Andrew Ramsey, when he should attain his full age, were ordered to convey to the purchasers the subjects sold. The last exhibit was a deed from “Andrew Ramsey, eldest son and heir of Patrick Ramsey, *deceased, to Elisha Arnold, dated June 5, 1797; reciting the decree,- in substance; setting forth that Archibald Gordon having failed to pay the money according to the terms thereof, the said tracts of land had been, in obedience thereto, exposed to sale at public auction, and the said Elisha Arnold had, under the said sale, become entitled to demand and have a conveyance made to him of that tract of land containing eight hundred and fifty acres: the said indenture “therefore witnessed that the said Andrew Ramsey, in obedience to the said decree, and for the consideration of three hundred and fifty pounds current money by the said Elisha Arnold to the said commissioners in hand paid, and also of one dollar to him the said Andrew Ramsey in hand paid by the said Elisha Arnold, had granted, bargained and sold,” &c. ; concluding with a clause of special warranty against himself and his heirs, and all persons claiming under him.
    Wickham, for the appellant.
    1. The boundaries of the land were not sufficiently described in the count, as required by the act for reforming the method of proceeding in writs of right; the limits of the sixty acres claimed by the demandant not being mentioned at all. The very land in controversy should be designated, in order that the judgment may be a bar, and the sheriff may know of what land to deliver possession.
    2. The decree in the suit between Gordon and Ramsey could not be evidence against Markham Lovell, who was no party to it; and if it was evidence at all, it was only of the point decided, not of the fact that Andrew Ramsey was heir of Patrick Ramsey. Suppose any other person had been the heir; he might controvert it notwithstanding the decree. The same objection applies to the deed from Andrew Ramsey; there being no proof that he was heir of Patrick Ramsey.
    *Wirt, contra.
    1. The description of the boundaries in the count was as full as .it could be; more minute, indeed, than is to be found in any book of forms either in England or this country. The counts, in England, refer to the writ, without containing in themselves any specification of boundaries,  The first object of a count is to give notice of the land demanded. Now here the tenant has not demurred, but, in his plea, shows he understood the description given ; for he copies it exactly. The second object is to enable the sheriff to give possession ; and surely the description in this count is sufficient for that purpose. But, if it was vague in the count, the report of the surveyor and verdict of the jury, minutely finding by metes and bounds the land in controversy, removed the difficulty.
    Our act of assembly does not require the boundaries to be precisely set forth; and in Turberville v. Long, 3 H. & M. 309, it was settled accordingly.
    2. As to the second objection, the bill of exceptions has not brought it before the court in such form as for the court to decide upon it. The decree and the deed should have been set forth; otherwise the court could not judge. The bill of exceptions, drawn as it is, presents a mere abstract question whether a decree in any case between different parties from those now in court could be evidence. But suppose, though different parties, they were privies, would not the decree be evidence? It was the duty of the exceptor so to state the question as to enable the court above to decide upon it.
    [Here Judge Roane called the attention of Mr. Wirt to the case of Carr’s Executor v. Anderson, 2 H. & M. 361. Mr. Wirt observed that the document in that case was sufficiently described as “the inventory of Barbara Carr’s estate;” but in this case the decree and deed are not described at all.]
    *But admitting the decree was incorporated in the bill of exceptions, it ought to have been received as evidence. As introduced, it is only a link in the chain of our title; it was not offered as affecting Lovell’s title, which was not at all involved in that suit in chancery.
    Wickham, in reply. I rely on the act of assembly as changing the common law rule. The count might be good at common law, but the act requires the boundaries to be set forth.
    The case of Turberville v. Dong was not like this. There the order of survey was made before the count was filed, which afterwards referred to the lines in the sur-vej’ returned; but here the count has no reference to the lines of the land demanded ; and the subsequent specification in the verdict could not have given the tenant information how to defend himself.
    As to the 2d point, 1 should be willing to admit that the bill of exceptions is imperfect; for, if so, the judgment must be reversed,  But if this court should be of opinion (as I think they will be) that the decree and deed are sufficiently incorporated in the exceptions, then I contend the decree should not have been received as evidence.
    The decree itself was only that a sale be ma.de, and is no evidence that a sale was made. A decree should have appeared confirming the sale. I admit it was admissible as a link in the chain of evidence of the plaintiff’s title ; but it was not sufficient to prove more than the fact that such decree was rendered; not other facts to prove which parol evidence should have been produced.
    
      
       Writ of Right—Declaration—Uncertainty of Count — Effect of joining the Mise.—Where, in a writ of right the boundaries of the land are defectively set out in the count, and the tenant joins the mise, he cannot afterwards complain of the defect. The principal case is cited in Bolling v. Mayor, etc., of Petersburg, 3 Rand. 584, as proving this point.
      At the common law, the tenant by waiving- view, and joining the mise, took upon himself aknowledge of the land demanded in the count; and, under the statute (4 Hen. St. at Large, 403), by joining the mise, lie waives all objection to the description of the land demanded in the count, if it be sufficient to give notice to the parties of the controversy on which the mise is joined, so that the judgment or the verdict would be a bar to another writ for the same matter. Snapp v. Spengler. 3 Leigh 5, citing as authority, the principal case, Turberville v. Long, 3 Hen. & M 309; Bolling v. Mayor, etc., of Petersburg, 3 Rand. 563.
      But it seems that, if no boundaries are set out in the count, and nothing occurs in the progress of the cause, to supply the defect, and enable the court to give judgment, and the sheriff to deliver possession, the court might refuse to give judgment, and send the cause back for a repleader, the issue being immaterial. Bolling v. Mayor, etc., of Petersburg, 3 Rand. 563.
      To the point that the want of description in the count may be supplied by the finding of the jury, the principal case is cited in Bolling v. Mayor, etc., of Petersburg. 3 Rand. 586: Koiner v. Rankin, 11 Gratt. 420; Hitchcox v. Rawson, 14 Gratt. 526; Holliday v. Myers, 11 W. Va. 291; Moore v. Douglass, 14 W. Va. 726, the two latter cases quoting from Hitchcox v. Rawson, 14 Gratt. 526.
    
    
      
       Rev. Code, v. 1, p. 33.
    
    
      
       Fitzh. N. B. p. 1, Coke’s Ent. 188, a. and b. Rast. 239, a. under No. 5. In some of these entries the parish only is mentioned: in that last referred to, parts unascertained are demanded.
    
    
      
       Barrett & Co. v. Tazewell, 1 Call, 215.
    
   Friday, May 3d. The judges pronounce^ their opinions.

JUDGE BROOKE.

In this case two points were made. 1. The tenement demanded is not described with sufficient ^certainty; 2. The decree and deed objected to, in the bill of exceptions, were not admissible evidence, to prove all the facts for which they were introduced.

In the count, sixty acres of land, “part of eight hundred and fifty acres,” are demanded: The eight hundred and fitty are described and set forth by metes and bounds according to the form prescribed by the act of 1786, entitled an act for reforming the method of proceeding on writs of right. The objections are, first, that the sixty acres are not so described; and, secondly, they might be located in any part of the eight hundred and fifty acres. Upon a demurrer to the count, it is possible these objections would be entitled to great consideration ; but the tenant admits the description to be sufficiently certain by his plea; which puts in issue the quantity and localit3r of the tenement demanded. The objections of this kind that were urged in the case of Turberville v. Long, in this court, were much stronger, and yet they were overruled.

On the second point, I am of opinion that, though the decree, if necessary in tracing the title of the demandant, might have been offered in evidence, (in connection with proof of 1 the sale under it, and the deed to the purchaser,) to prove, as far as it would go, that the title to the land in controversy had passed from Patrick Ramsey to the purchaser, j’et it was not evidence to prove that Andrew Ramsey was the heir at law of Patrick Ramsey; that was a deduction of law, from facts which might or might not have been before the chancellor, and which it did not belong to the jury to make from the decree; facts which, if proved by proper testimony, rendered the decree and proceedings under it unimportant to the demandant, inasmuch as, if Andrew was proved to be the heir at law of Patrick Ramsey, he derived his title to the land by descent, and the deed from him to the demandant was sufficient to pass the title to him. I am therefore of opinion the judgment must be reversed.

*1 have said nothing relative to the sufficiency of the bill of exceptions to identify the deed and decree referred to; because I thought it best to decide the points in it, however informally presented to the court.

JUDGE ROANE.

As to the sufficiency of the count in this case, I am inclined to concur in the opinion just delivered, upon the authority of the decisions of this court in the cases of Turberville v. Long, 3 H. and M. 309, and Beverley v. Fogg, 1 Call, 484.

With respect to the sufficiency of this bill of exceptions in relation to its identifying the decree and deed contained in the record to be the very paper therein referred to, I cannot but have some doubts upon the subject. As, however, the question may be very important, in reference to the actual practice of the several clerks of this commonwealth, who frequently omit, either to copy into the bills of exceptions, the documents intended to be made a part thereof, or to certify (as is the case here) that a given paper is the one referred to in the bill of exceptions, that question is reserved (so far as my opinion goes) for future decisions: In the view I have taken of this case, the question need not be decided at present.

The bill of exceptions exhibits the appel-lee as offering in evidence the decree and deed therein mentioned, generally, viz. to prove every thing they were extensive enough to prove. On the part of the appellant, the decree was objected to both generally, as being inadmissible evidence, it having been rendered between other parties, and particularly, as being incompetent to prove that A. Ramsey was the heir of Patrick Ramsey. I understand this objection as amounting to a substantial, though informal, application to the court, either to withhold that decree from the jury altogether, or, at least, to-instruct the jury that it was incompetent to prove the fact of A. Ramsey’s heirship; and I also understand the ^decision of the court, as amounting to a refusal to do either, and as permitting that decree to go to the jury to prove, inter alia, that A. Ramsey was the heir of Patrick Ramsey. The propriety of this decision of the district court is now to be examined.

While it is admitted that that decree, though between other parties, was proper to prove any matters depending merely upon reputation, (including, perhaps, the fact that A. Ramsey was the eldest son of Patrick Ramsey,) and also was proper tobe exhibited in this case as a link showing how the title was deduced from Gordon to the present appellee, it was not proper evidence to prove, as between the present parties, the substantive fact of the heirship of A. Ramsey. ''That being a legal inference depending «pon á point of fact, viz. the time of the death of Patrick Ramsey, and upon the construction and time of commencement of the act of descents of 1785, (however clear and plain,) it was the privilege of the appellant not to be bound thereby, unless he had had (by being a party to the suit) the liberty to controvert the same. It is not for this court to say, that it was unnecessary for the appellee,rest-ing upon the conveyance under the decree, to prove the fact, of the heirship as a substantive fact in the present case. He has chosen to do so; and the doctrinéis, “That illegal or improper evidence, however unimportant it may be to the case, ought never to be confided to the jury, for if it should have an influence upon their minds, it will mislead them, and if it should have none, it is useless, and may, at least, produce perplexity.”

The establishment of this fact, however, in the case before us, might not have been altogether useless, in the event that the deed of A. Ramsey, contained in the record, should (from whatever cause, as to which,' however, I give no opinion in this case) be deemed insufficient to convey a perfect title to the appellee, as under the decree, yet, as Gordon’s deed to Patrick- Ramsey was *in itself an absolute one, and this deed, (though possibly insufficient under the decree,) conveying the right of A. Ramsey to the appellee, he might have considered that his title, in this aspect, would be complete by proving that A. Ramsey was the heir of Patrick Ramsey; and having no other evidence of that fact, introduced the decree aforesaid to prove it; and thus (which, however, is not necessary to maintain my proposition, that the decision of the district court on this point was erroneous)- a real utility might have resulted to the appellee from exhibiting the decree to prove that fact; a fact, too, as to which there was no other testimony offered.

My opinion is that the judgment be reversed, and the cause remanded, with directions that the district court should, on the future trial, if necessary, give an instruction to the jury corresponding with the ideas now stated.

JUDGE FLEMING.

The counsel for the appellant stated two points in the cause to prove the judgment erroneous; first, that the count is defective, and not cured by the plea, or verdict; and, secondly, that the decree and deed, referred to in the bill of exceptions, were not admissible evidence to prove the matters for which they were introduced.

With respect to the first point, the count demands a tenement containing sixty acres of land with the appurtenances, in the county of Franklin, and within the jurisdiction of the district court of Franklin; which said sixty acres are included in a larger tract of 850 acres, the bounds of which are accurately described. The defendant in his plea, after describing the land precisely as stated in the count, “putteth himself on the assise, and prayeth recognition to be made whether he hath greater right to hold the tenement aforesaid, with the appurtenances, as he now holdeth it, or the said Elisha Arnold *to have it, as he now demandeth it;” and issue thereupon in due form; which seems to me a sufficient acknowledgment of the identity of the land in controversy. But this is not all; the jury expressly find for the demandant (not sixty) but fifty acres of land, with the appurtenances in the count mentioned, “being part of 850 acres also in the count mentioned;” and which said fifty acres are particularly delineated and described in the surveyor’s report, made by virtue, of an order of the district court of Franklin. And the appellee traced his title, from the date of the patent to Obadiah Woodson, in the year 1751, down to the time of instituting his suit.

In the case of Turberville v. Long, in this court, the count neither stated the county in which the land in controversy lay, or that it was within the jurisdiction of the district court of Fredericksburg, where the suit was brought, and yet the court held the count sufficient to maintain the action, and gave judgment accordingly.

With respect to the second point, it seems attended with more difficulty. This court, in the cases of Keel & Herbert v. Roberts, 1 Wash. 203, and of Wroe v. Washington and others, 1 Wash. 357, decided against the doctrine of taking a bill of exceptions for a demurrer to evidence, and considered the two modes of proceeding as being totally dissimilar; and that the one could not answer the purposes of the other. In a demurrer, the evidence is admitted to be legal and true; but not sufficient to maintain the issue; the whole evidence being stated in the demurrer, the court may refuse to compel the other party to join; and may either direct the jury as to the sufficiency of the evidence, or, in a clear case, may leave the jury to decide upon it. And, in a doubtful case, the usual mode is, either to withdraw a juror, or for the jury to find a verdict, subject to the opinion of the court, upon the sufficiency or insufficiency of the evidence to maintain the issue.

*In an exception to evidence, it is denied to be legal, or competent, and, therefore, ought not to be admitted to go to the jury for any purpose whatever.

In the case before us, the exceptions seem vague and uncertain; they are, that “the demandant, in deducing his title to the land in controversy, introduced, as evidence, a decree of the high court of chancery in these words: ; and also a deed from Andrew Ramsey, in these words: ; to the admission of which the tenant’s attorney objected, as the decree was betwixt different parties (though not named) from those now in court; and’also because it was improper, by said decree, to prove that Andrew Ramsey was the heir at law of Patrick Ramsey, there being no other evidence to prove that fact. The deed was also objected to, there being no evidence that a sale was made in pursuance of the decree.

Take the appellant’s objections as exceptions to the evidence, the question is, whether the decree and deed were admissible evidence to go to the jury for any purpose? It seems to me that they were admissible; being- a link in the chain by which the appellee deduced his title to the land in controversy, from the patentee down to the commencement of his suit; and, if they prove Andrew Ramsey to be the eldest son, it appears to me they also prove him to be the heir of Patrick Ramsey; or so they style him in the same sentence; and we ought, I conceive, to reject, or take, the whole together. The suit in which the decree is rendered, was instituted by Alexander Gordon against Andrew Ramsey, by him styled to be the eldest son and heir at law of Patrick Ramsey, to be relieved against his own absolute deed, executed to the said Patrick Ramsey the father; of which deed further notice will be taken hereafter. The time of Patrick Ramsey’s death does not appear; but I presume, from the circumstances above stated, that it was *prior to our act of assembly directing the course of descents, which took effect on the first day of January, 1787.

Consider the objections as a demurrer, it admits the evidence to be legal and true in all its parts; but denies its sufficiency to prove the facts for w'hich it was introduced. Our act of assembly, to simplify the proceedings in writs of right, directs the form of both count and plea; differing the proceedings from those in England in many respects; and allows any matter to be given in evidence which might have been specially pleaded. Upon the same principle, I conceive, the decree and deed might have been given in evidence on the part of the demandant, (which he might in a special count have stated, as a link, in tracing his title, had not a particular form been prescribed by the act of assembly.) The fact, that Andrew Ramsey was the heir of Patrick Ramsey, seems the only purpose for which the proceedings in chancery need be used; for the deed from Gordon to Patrick Ramsey being absolute, without a defeasance; but for the interference of the court of chancery (which, from some equitable circumstances, not to us disclosed, considers that it should operate between the parties as a mortgage) the absolute right would have descended to Patrick Ramsey’s heir, (unless otherwise disposed of by the will,) who might have sold, and conveyed, to whomsoever he pleased.

As to the circumstance of there being no direct proof that the land was sold in pursuance of the decree; its being so stated in the deed from Andrew Ramsey to Arnold, and that the latter became the purchaser, is sufficient evidence to satisfy me of the fact; as the former thereby devested himself of all right to, and interest in, the premises. If the decree is not evidence, why is proof required that a sale was made in pursuance of it of the land in controversy? the title to which is clearly ^deduced from the patentee, who obtained a grant for the same from the crown, under the legal government, in the year 1751, down to Patrick Ramsey, in the year 1774. And none, I conceive, could be interested in, or affected by, the sale, except the purchaser, and those who claimed under Patrick Ramsey, and (except the possession) not a shadow of title appears in the appellant.

I have still, however, some doubts on the subject; and it being an invariable rule with me never to reverse a judgment, or a decree, unless thoroughly convinced that it is erroneous, I am of opinion that the judgment ought to be affirmed. But a majority of the court being of a different opinion, it is to be reversed, and the cause remanded to the superior county court of Franklin, for a new trial to be had therein.

Judgment reversed, and new trial granted; with a direction that, on such trial, the court do not permit the decree, mentioned in the bill of exceptions, to be given in evidence to prove that Andrew Ramsey was the heir of Patrick Ramsey. 
      
       Per Pendleton, President, in the case of Lee v. Tapscott, 2 Wash. 281.
     
      
       3 H. & M. 309.
     