
    
      Doe on demise of SAMUEL TOPPING v. NANCY SADLER, et. al.
    
    In locating- a patent of ancient date, evidence in respect to marked trees. though not called for in the grant, is admissible.
    Where one of the calls in a deed was for a patent line, and there was one patent proved, a line of which would be reached by extending the lino in question beyond the distance called for, and no other patent was alleged to bo near the promises, ü ivas held that the call was sufficiently definite to allow the extension of the line to the patent line.
    A husband can maintain an action of ejectment on a separate demise by himself, though he holds under a deed to himself and wife.
    This was an action of ejectment, tried before Caldwell, J., at the last Spring Term of Hyde Superior Court.
    The plaintiff introduced a patent to James Clayton, dated 4th of March, 1115, which he contended began at the point A in the annexed diagram and pursued the lines A, B, O, I),
    
      
    
    E, E, G-, and for the purpose of establishing these as the lines of the grant, he offered evidence of marked trees on the lines A, B, and E, F. This evidence was objected to by the defendant for the reason that there were no marked trees called for in the grant. The evidence was admitted by the Court and the defendant excepted.
    The plaintiff then offered a deed from Joseph McGowan to himself and wife, dated March 8th, 1819, in which the land conveyed was described as follows: “beginning at Isaac Swin-dell’s upper corner free- — a cypress, standing at the lake side, (which was admitted to be at N in the annexed plat,) running westerly with the lake, 100 poles to a juniper post (admitted to be at S,) thence a southerly course, 80 poles to the patent line (T,) thence with the patent line easterly 100 poles, to Swin-dell’s line (I,) thence with Swindell’s lino to the first station.” The line from S to T, if run to the patent line at T, measured 145 poles* and took in the locits in quo, which is the small parallelogram, te, v, I, T; but the defendant contended that it should stop at the end of the 80 poles, in which case the next call would run with u, v, and would not include the disputed territory. The plaintiff proved that he had been in possession of a part of the land embraced in his deed for fifteen years.
    The defendant asked the Court to charge the jury as contended by him in respect to the lines, and also that plaintiff should have declared on a joint demise by him and his wife, and that he could not recover on his own demise alone.
    The Court declined giving the instructions prayed, and left it to the jury to ascertain the back line of the patent called for in the deed. Defendant excepted.
    Verdict for the plaintiff Judgment and appeal by the defendant.
    
      Hodman, for the plaintiff.
    
      Donnell and Shaw, for the defendant.
   Pearson, J.

The evidence in respect to the “marked trees,” was admissible under the rule recognised by this Court in Safret v. Hartman, ante 185, although “marked line trees” were not called for in the grant which the plaintiff was endeavoring to locate. The grant was of ancient date, to wit: Jlh of March, 1775.

2. The call in the deed to the plaintiff and wife “ thence southerly 80 poles to the patent line, then with the patent line easterly,” clearly has reference to the line of the patent that covered the land, to wit: the patent of 1775, in the absence of any proof that there was another patent which covered the land. This call being sufficiently definite, was properly allowed the effect of controlling the distance.

3. If a husband and wife have posscssion^w^^tt'jj^: longing to the wife in fee in severalty, quent eviction, the husband alone may ^H^líín ej The fact that the husband has also an esfájjp joji^l^ wife, cannot have the effect of putting himj'^y^wor tion than if he had no estate except such asjheji^i ona/riti, for be lias all that, and something more. This is self-evident ; the learning in the books merely shows that in case of a conveyance to husband and wife, there is a fifth omito/, to wit: that of person, and he cannot sever the relation, or do any act b} which to defeat her estate, in case she survives him; but non constat, but he may make a lease for years which will be valid during the coveture, in the same way as if he had nothing in the land except as husband; consequently, he may maintain ejectment on his own demise. We presume an action might be maintained on the joint demise of husband and wife, in such a case, as they are enabled to make a joint lease by statute, which binds the wife provided certain requisites are attended to.

Pee CueiaM. . Judgment affirmed.  