
    COURT OF APPEALS, JUNE TERM, 1820.
    Carroll, et al. lessee, vs. Norwood’s heirs.
    ^SPosí!iSñysm*"hlhaníf tS odi?Hetí?« Qfáirs<n»’?ña^ñe them't&<¡ &¿W ISrromwgt»»’ such mxúmsíwicsumptiwus, that a regularly issued, j!'l oitS jj£i„tdeb¿bg ‘ramoíímn0^hoa£&
    a tract oúaniL ex-com4jance™Vr and at the sume time putJ* H. hi possession* J H. ¡minned the bond to li. T. in J745, and in 3749 put B» T. in possession» In 1750 J, L. I executed a deed of the land included in the bond to B, T, This deed was not recorded until 1794, and then under a decree of the court of ehnpeeyy. In 1760 J, L. X executed anothev deed for the same land lo E. N. J H and those claiming under him, held possession from 1730, the date of the said bond, until 1800, Held, that the deed from J LI to 33 T could not operate a* a feoffment for want of livery ot seizin, nor as a release to enlarge the estate of the grantee, because the grantee had no legal estate, ñoras a deed ot bargain and sale, enrol kd’under the decree of the court ot chancery, because it does not appear that E JN had any notice of the existence1 of such a deed'in 1760, when the one to himself was executed. -
    It is the province of the courts to construe grants anti deeds, as well in regard to the land intended to be transferred, as to the estaje intended to be created, and in all case* except ihpt of a latent ambtguity, this construction must depend on the grant* or deeds themselves, and not on matter de hors
    
    Calls are first’ to l e gratified j when there are none, resort is to be had to course apd distance, llie line of a tract of land may as well be the subject of a call as a natural object.
    Calls are preferred to course and distance,because it operates p.ost beneficially for the grantee The location of calls is'to be decided by the jury
    T lie 4th, 5th, 6th, and 7th lines of a tract of lamí, were stated by the grant to rim as follows, viz, N 160 ps. tiien W 60 perches, with a trdet lately taken tip by GT, then XV S W 200 perches, with the said land, then S 230 perches, bounding on the said T*s land, &c Held, that said 5ih, üjhand 7th lines, must run with and bind on»the lines of G Y’s land, and that the 4th line must be coptroled by the other lines, and terminate wherever the jury should find it would strike said Y’s land, by cither elongaung or shortening it "
    A plaintiff in ejectment may recover less than he claims, but it must bp of the same nature. If he declares for an undivided part, he may recover any smaller undivided part, or if he declares for an entirety, any smaller entirety, but he cannot recover an eptuety if he declares for an undivided interest, nor an undivided interest if he declares for an entirety
    A plaintiff in ejectment must, at the time of instituting liis suit, and at the trial of the cause, have a legal title to the land he sues f<?r " '
    Appeal from Baltimore county court. Ejeptment for two tracts of land, one called Enlargement 
      
      , the other ■Brown’s Adventure, lyjng in Baltimore county." . The declaration contained seven separate demises, viz. by Charles Carroll, of Carrollton, Nicholas Carroll, Daniel Carroll, Duddington, and Robert Carter, each for an undivided fifth part, by Abraham Van, Bibber for one undivided tenth paid, by Isaac Van Bibber for. one undivided fiftieth part, and by William Smith for four undivided fiftieth parts. Defence was taken on warrant by the then defendants, Edward and .Samuel Norwood, for a tract called The United Friendship as located on the plots in this 'cause.
    1. At the trial in the county court at March term 1807, the plaintiff offered in evidence a certificate of survey and grant of the tract called The Enlargement, containing hundred acres, surveyed for John Israel on the 10th of January 1720, and granted to him on the 10th of July 1724. And also offered the will of John Israel, dated the JSth January 1723, whereby he devised the said land, with other lands, to his three sons John Lacón, Gilbert Talbot, and 7 t * 71 Robert Israel, and their heirs for ever, to be equally divided between tliem and their heirs, The will was proved the 11th of March 1723, He further gave in evidence a deed from John Lacón Israel to Benjamin Tasker, dated the 15th of June 1750, together with a decree of the chancel-, lor thereon, passed the 18th of December 1794, directing said deed to be recorded, &c. This deed, after reciting that /„ L. Israel had passed his bond to John Hurd, to convey to him, and his heirs, one hundred acres of land, part of the land devised to said J. L. Israel by his father John Israel, and that that bond was assigned to Tasker and company, proceeds to convey to Tasker, his heirs and assigns, said one hundred acres, being the residue and remainder of any or all the lands devised to the grantor by his said father, or which by any other way had come to him as his son, after 150 acres, previously conveyed to George Buchanan, were taken out; in trust that said Tasker should hold the same as to one fifth for Baniel Dulany, his heirs and assigns; one fifth for Charles Carroll, his heirs and assigns; one fifth for. Charles Carroll, of Daniel, his heirs and assigns; one fifth for Doctor Charles Carroll, his heirs and assigns; and one fifth for said Tasker, his heirs and assigns. He also offered in evidence a deed from J. L. Israel to George Buchanan, dated the 7th of July 1731, for 150 acres of the easternmost part of Yates his Forbearance, and a deed from Gilbert Talbot Israel, and Charles Bidgely, to Doctor Charles Carroll, dated the 26th of June 1732, for his, Israel’s, light, &cl to all lands devised to him by his father; John Israeh ■ Also a deed from Robert Israel to Charles Carroll, Esquire, dated the 26th of August 1743, for all his right, &c. to all lands devised to him by his father John Israel', in trust as to one fifth for Tasker, Dulany, C, Carroll of Daniel, Doctor C. Carroll, and the said C. Carroll, Esquire, respectively. Also a deed from Doctor C. Carroll to B. Tasker, C. Carroll, Esquire, Daniel Dulany, and Daniel Carroll of Duddington, dated the 25th' of September 1733. And’also gave in evidence, that the lessors of the plaintiff, and those under whom they claim, have at all times, since the date of the will of John Israel, imtil about ten years before tlie commencement of this action, been in the possession and enjoyment of the land tailed The Enlargement, under the title derived from said will; and that that tract' was truly located on the plots by the plaintiff, and was the land for which this action was brought. The defendants then offered in evidence the grant of the tract of land called The Enlargement, herein before mentioned, granted to John Israel, and proved that Israel was dead at the time said grant issued. They also offered in evidence a grant of a tract of land called The United Friendship, granted to John Larkin the 1 st of September 1687, being a resurvey on Larkin’s Addition and Ludlow’s Lot, containing 700 acres; also various mesne conveyances from said Larkin for The United Friendship, down to the father of the defendants, and that said tract was correctly located by them on the plots; and that they, and those under whom they claimed, had, at all times, from, the date of said grant, been in the possession and enjoyment of said land as located by them. They also gave in .evidence a grapt of a tract of land called Brown’s Adventure, granted to Thomas Brown the 10th of November 1695, for 1000 acres. Also a grant of a tract called Yates his Forbearance, granted to George Yates the 20th of July 1694, for 770 acres 
      . Algo a grant of a tract called Yates’ Addition, granted to John Yates the 10th of October 1707, for 87 acres. And then prayed the direction of the court to the jury, that the lessors of the plaintiff, nor any of them, had made title to the tract called The Enlargement, for which the action was brought, because the grant for said land was issued to John Israel, after his death,
    The Court, l¿Nicholson, Ch. J. and Hollingsworth, A. J.] refused the prayer, and directed the jury, that said Israel acquired an equitable interest in the tract called The Enlargement, in virtue of his certificate of survey, which interest was transmissible by last will, and that as he had devised the same to his three sons, in fee, ps tenants in common/ and the plaintiff had deduced and shown .... f, . , : , . , • a title irom said devisees, by* sundry mesne conveyances, they might and ought to presume, from the great length of time since the date of the certificate of survey, that a grant had issued to the sons of Israel, provided they found that the possession of the land had been held under that title. The defendants excepted. :
    ^ m4™4n«f «/sé" mfgi,t ami light í° n? FanXaueenheid undertUesaidtittle
    
      J. L. J- being seised of part of a 'tract of laud, executed a bond of conveyance to J. II. in 1730, conditioned to convey the land to hun, & at the same time delivered possession to 3. f-I. This bond'was assigned by J. H. to B T an 1745, and possession delivered in 1749. In 1750 J L J executed a deed of the land to B T which deed was not recorded until 1794, when it was enrolled by a d( cree of the «court ofchanceryIn 1760 J L J executed a deed to E N for the same land. Possession of the land was' too miui’ 1800-' asea’fronfj l'’j operate livery of seisin, to enlarge the estate, for want an estate m law in the releasee at the time of the execution oí the dee<i Nor as .a »misale, enrolled tinder the decree eLm-cry,01]? not e Nffatt:'th’e time dred°bhiSenot!ie j LtjetodB T<lom
    2. The plaintiff further offered in evidence a paper purporting to. be a bond executed by John L. Israel to John Hurd, dated the 24th of December 1730, conditioned that he would, when required, make over, convey and transfer, by a lawfuRgeneral conyeyance, to said Hurd, his heirs, &c. 100 acres of land out of the tract called Yates’s Forbearance, &c.- ■ And an assignment endorsed on said bond from said Hurd to Benjamin Tasker, and company, dated the 25th of February 1745: and proved the hand writing of Richard Croxall, thereto signed as a subscribing witness, and that said Croxall, and George Buchanan, the other subscribing witness, were both dead. He also produced a bond from said Hurd to said Tasker and company, dated'the 26th of March 1747, reciting the aboye hond and assignment, and covenanting to deliver up to Tasker and company, possession of the said 100 acres, on the 10th of December 1749; and proved that Richard Croxall, name was thereto subscribed as a witness, was dead, and also proved his hand writing, and then offered to read, the same in evidence. And further offered in evidence, Hurd, and those under wham the plaintiff claims, were, lrom the year 1730 to the year 1800, m possession of the tract called The Enlargement, as located by the ' ,■ . , J plamtip, He also read m evidence the original deed lrom * ' * ° John Israel to Tasker, and others, dated the 15th of “ *• \ June 1750, and the decree of the chancellor thereto annexed. The defendants then offered in evidence a deed , fr°m John L. Israel to Edwarj), Norwood, father of the defendants, dated the 28th of March 1760, conveying, among other lands, all his right and title in any tracts or parcels of land, devised to said J. L. Israel by his father’s last will and testament, or which he had become entitled to as heir at law of his father. The plaintiff then prayed the direction of the court to the jury, that if the jury found the facts stated by the plaintiff to be true, that then, he had made title in law to the estate and right of J. L. Israel in the land contained in his deed to Tasker, and others, of the 15th of June 1750, notwithstanding the deed or conveyance executed to the father of the deten,dants on the 28th of March 1760. The court gavq the direction as prayed. The defendants excepted.
    
      3. The plaintiff further offered in evidence certificates éf surveys of the following tracts of land, viz. Yates his Forbearance, surveyed for George Yates the 20th of June 1633, for 770 acres 
      : Yates’s Forbearance, surveyed for George Yates the 17th of July 1683, for 140 acres;. The Forest, surveyed the 23d of March 11578; Pierce’s Encouragement, surveyed the 15th of October 1677; Foster’s Fancy, surveyed the 29th of June 1669; Hockley, surveyed the 8th of August 1670; Larkin's Addition, surveyed the Sd of November 1673; Lloyd of Ludioc’s Lot, surveyed the 20th of October 1667; 'The Ludloe’s Lot, surveyed 20th of June 1668, and The United Friendship; which last mentioned tract was survevcd for John Larkin on the ^ . . 15th of October 1684; the certificate stated it as beginning; , 7 , ° ° at a red oak standing on a high point by a small gut on the ° or j » ^ N sidé of Patapsco river in Baltimore county, about a mile r J 7 below the falls, and running (1) down the river E 160 ps. to another bounded oak, then (2) running N into the woods 200 ps. then (3) W 100 ps. then (4) N 160 ps. then (5) running W 60 ps. with a tract of land lately taken up for George Yates of Anne Aruncfel county, gent .fa), then (6) running TV S W 200 ps. with the said land, then (7) ning.S 2S0 ps. bounding on the said Yates’s land, then (8) S W 44 ps. to the aforesaid river, then (9) running down , _ ~ ,, the river S and by W 28 ps. (10) S 38 ps. then (11) run- . _ J t . 1 . ' . _ i, ' , ' xnng SSE 90 ps. then (12) running E S E 20 ps. lastly (13) running ENE 200 ps. to the first bound tree, ' * ° 1 7 taining in all 700 acres of land. ” lie also gave in evidence the grant of a tract of land called United Friendship, surveyed for EdioardNorwood on the 23d of September 1765, •under a warrant to resurvey the following tracts, viz. • 505 acres, part of The United Friendship, granted to John Larkin for 700 acres, the 1 st of September 1687; Addition to Yates’s Forbearance, granted to Emanuel Teal the 13th of June 1734, for 54 acres; Yates’s Forbearance, granted to George Yates the 20th of July 1684, for 140 acres; and m n t i tt 7 n • 7 7 • , The Addition to United Friendship, granted to Edward 1 > ° Norwood the 29th of September 1750, for 30 acres—“Be-1 - ginning, for Edward Norwood’s part of United Friendship, at the place where formerly stood a hounded red oak on the N. side of Patapsco river, it being the beginning- of the whole tract called United Friendship, and running thence (1) N 13 W S35 ps, (2) E N E 80 ps. to the end of the fifth line of the whole tract, it being also at the end of the W lOOps. line of a tract of land called Yates’s Forbearance, then (3) bounding on Yateses Forbearance, and the whole tract called United Friendship, N 160 ps. (4) W ÍW 200 ps. (5) N 70 ps. thence (6) S W 44 ps. to the main falls' of Patapsco river, but the true distance is 530 ps. to said falls, then (7) running down the said river S by W 28 ps.” &c. He also offered in évidence two deeds, one from John Larkin to TVilliam Chew, dated the 25tli of June 1702, for 350 acres, part óf The United Friendship, and the other from Hyde Hoxton to .Edward Norwood, dated the 14th of May,’ Í750.
    
    
      The court, are ?®toSihebexcepu! anintemhamMgui?rheVównl<fby. partí".1*™ i>°e hí snmerÜieor priiw nothing- extrinsic or dc hors the deed, w to berecurved to for ascmaining suck intention» tin'ess j» ll'e of ¡t latent ambipinty« ¡^,¿‘1* . ®!af tl®Sy gra\'f. l'yanl 'hiunction'be! land «íiinatural or auifiS! 4tii,0sTh,éth¡ ant 7th lines of a tract of land, were expressed in the to^nm as i>s- then running- \V 60 ps jffyffffQfly f„° £ S*rv that’tiie^ti^^S «“It ranwíth’áníf or "¿“land ¿f‘c uñe must he con* sth,e6th,bLd rib lines, and termi* «ate ?n the line of island, whenyei- tnejury may find it will strike iKt™'mg the 4,h Ime
    
      And also gave in evidence, that All the said certificates of surveys, and the said grant and deeds, were by him truly located on the plots/ The defendants then offered evidence, that said grant and certificate of survey of The United Friendship's and the certificates of the two tracts called Yates,s Forbearance, were by thein truly located? and then prayed the court to direct the jury, that the fifth,sixth, and seventh lines of The United Friendship, must run with and bind on the lines' of the land of George Yates, mentioned in the said grant and certificate of The United Iriendship, wherever the jury shall find them to be. But the court refused to give such direction, being of opinion that the location óf the tract called The United, Friendship would bear a double aspect, and that what was .its true location was a matter properly to-be enquired of and found by the jury 
      . The defendants excepted. Verdict and judgment for the plaintiff for the tract called’ The Enlargement, according to the plaintiff’s location of the same, by a table of courses distinguished on the plots by the number One, beginning at the red letter E. On this judgment the defendants sued out a writ of error returnable to this court, where the cause was argued at December Term 1812, before Chase, Ch. J. Buchanan arid Earle, J.
    
      
      T. Buchanan, Sliaaff and Pinkney, for the plairitifls in OiTror.
    They cited Curroll et al. Lessee vs. Norwood, 4 Harr. &>- MHen. 287. Savory’s Lessee vs. Whayland, 1 Harr. #■ MHen. 206. The act of 1785, ch. 72, s. 11. Doe on Dem. Boiverman vs. Sybourne, 7 T. R. 9¡ Goodtitle Dem. Jones vs. Jones, ibid 43. Peake’s Evid. 316, 317. Keen Dem. The Earl of Portsmouth et til. vs. The Earl of Effingham, 2 Strange, 1267. Warren Dem. W'ebb vs. Greenville, Ibid 1129. Helm’s Lessee vs. Howard, 2 Harr, fy MHen< 82. ■ Dorsey’s Lessee vs. Hammond, 1 Harr, fy Johns. 190, 194. Cheney vs. Ring-gold’s Lessee, in this court, December Term 1807. 2 Blk. Com. 339, and Land Hold. Jlss. 288.
    
      Harper and Martin, for the defendants in em>r,
    relied on Gittings Lessee vs. Hall, 1 Harr, fy Johns. 16, 22. Thompson et al. Lessee vs. Brown, 1 Harr. Sf Johns. 335. Gibson’s Lessee vs, Smith, 1 Harr. Johns. 253. Davis et al. Lessee vs. Batty, Ibid. 264. and England Dem. Syburn vs. Slade, 4 T. R. 682.
    
      
      
        See 4 Harr. &• M'lfen. 237. *
    
    
      
      
         Set the expressions in this grant set out in ] Barr. §• Johns,
    
    
      
      
         See IhU grant set out- in 1 Herr and Johns. 12S.
    
    
      
      
         This decision seems to be conformable to that made by the general court, and affirmed in the court of appeals, in the case of Jiidge ly et ux Lessee,vs. Norwood (1 Harr ¿(Johns. 128,) on the very same grant; if that case was referred to in the court below, it was not cited or referred to by the counsel who argued this case in the court of appeals, nor by that court when they made their decision reversing thejudgment of the court below.
    
    
      
       See the title set out in 1 Ilarr. Johns. 167,
    
    
      
       H is not so stated in the record.
    
   Chase, Ch. J.

delivered the opinion of the court. It has been conceded in the argument, that the facts and circumstances stated in the first bill of exceptions, constitute a sufficient foundation for the jury’s presuming a grant to the sons of John Israel, independent and exclusive of the fact, that a grant had issued to John Israel, the father, after his death, which fact, it has been contended, repels and precludes the presumption, on the ground that all the facts and circumstances originated from that source, and are in such manner to be accounted for. The grant which issued to John Israel was void tib initio, there being no grantee, John Israel being dead. The grant had no operation or efficacy in law, and consequently no estate or interest was or could be acquired under it. It was a mere nullity, and none of the facts or circumstances in the case could spring from it. There is a plain distinction between a void grant or conveyance and a defective deed, and on that ground the case of Keen, on the demise of the Earl of Portsmouth et. al. vs. The Earl of Effingham, 2 Strange, 1267, is distinguishable from the present. A void grant is no grant, and proves nothing. A defective conveyance may be good for some purposes, and legally inefficacious for others. In the case in Strange, although deeds were made ánd enrolled for the purpose of making a tenant to the praecipe, yet proper parties did not join; that is, the person who had the life estate did not join iii them. The uses declared were warranted and Well created. The deeds were éífectual for the purpose of declaring the uses of the recoveries, and they were also made for the purpose of making proper parties. These deeds were part of the recoveries and the foundation of them, and supposed to be effectual', but the tenant for life not joining in them, they were defective; and if the court had directed the jury to presume proper deed's; the direction would have been repugnant to the deeds appearing, and would also have concluded the interest of the tenant for life. In the case in question no grant exists. John Israel, the father, in virtue of his certificate of survey, and payment of the composition money, acquired an équitable interest in the tract of land called The Enlargement, which by his will was transmitted to his three sons. It is stated; in the case; that the lessors of the plaintiff, and thoáe under whont they claim, have been in possession of The Enlargement fever since the date of the will of John Israel, (13th of1 January 1723,) undér the title derived from the said wilt. Every fact in the case, on which, the direction to the jury was prayed, existed independent of thé void grant which issued to John Israel, and at the time it did issue the three sons were entitled to it, and not John Israel, who was dead. Here then is a clear1 equitable titlé shown in the sons of John Israel, and deduced from them to the lessors of the plaintiff, and a possession held in conformity thereto from 1723, until within ten years before the institutibii of this ejectment. The court are of opinion, that the opinion expressed hy the cbiirt below, in the first bill of exceptions, be affirmed.

It does not appear by the facts stated in the second bill of exceptions that there is any evidence of a title deduced to the lessors of the plaintiff in the land in question. The deed from John L. Israel to Tastier cannot operate as a feoffmfent, for want of finding livery of seizin. It cannot operate as a release to enlarge the estáte, for want of an estate, in law in the releasee at the time of the execution of the said deed. It cannot operate ás a deed of bargain and sale, enrolled under the decree of the court of chancery, the case not stating that Edward Norwood, the father of tbe defendants, at the time he obtained his deed, had notice of the deed from John L. Israel to B. Tasker. The court are of opinion, that the opinion expressed by the court below, in the second hill of exceptions, be reversed.

In expressing an opinion on the third MU of exceptions, the court will endeavour to state their ideas in ps concise and plain a manner as possible, as tq the grounds and prin-. ciples of the law in relation to the true location of trapt§ pf land in this state, It is the unquestionable right and jurisdiction of the courts to decide on the construction of grants and deeds, as well as to the description of the lapd which is to be transferred, as the quality and nature of the estate, subject only to the exception of the case of q latent ambiguity. The location must correspond with, and be in conformity to, the true construction of the grant as declared by the court. , In construing grants the courts are to re* gar.d, and to be governed by, the intention of the parties, to be collected from the deed, if not incompatible with, some rule or principle of law, and nothing extrinsic of de hors the deed is to be recurred to for ascertaining such intention, unless in the pase of a latent ambiguity. If there is a call in the grant and course and distance, and' they do not agree, the call is to be gratified if it is imperative or peremptory, and the course and distance are to be rejected, and the line is to be elongated or shortened to bring it to the call. It is the exclusive right and province of the jury to ascertain and fix calls according to the evidence legally admissible for that purpose, and the calls being ascertained, the lines must run accordingly, and will bp controled thereby, if the course and distance do not correspond with such calls. To show the true position of q tree, head of a creek, pr line of a tract of land called for, recourse is often Jiad to the relative situation of contiguous trqcts, and various other circumstances, having the tendency to identify the call. There certainly can be no distinction between a line of a tract of land called for, and any natural or artificial bound ary j they are all the subjects of proof, and when ascertained by the jury, are equally to be regarded, anfl the course and distance are to be governed by them, if the call is imperative. The reason which induced the courts, 'in construing grants, to give a preference to the location according to calls was, because such construction was most beneficial to the grantep in giving him more land, and that principle having been adopted, has been generally adhered to, although in some few cases if might’ operate to the dis' advantage of the grantee. Almost all locations, where there are calls as well as course and distance! are locations with a double aspect, because the course and distance seldom, if ever, agree with the calls.. If that reason was to govern the courts in their decisions, the consequence would' be, the transferring the power and jurisdiction of the courts to the jury in the exposition of grants, and the greatest uncertainty would prevail, and the greatest evils would result from it—contradictory determinations, without any power tp. control them. It is admitted that the calls in this case are imperative; indeed there can be no doubt about it; and. being peremptory, they must be complied with, and the course and distance must be controlad by them.

A procedendo being awarded, the cause was remitted to the county court for a new trial. After it was so remitted, the deaths of both the original defendants were suggested! and the heirs of EdwardNorwood appeared and were made defendants. The deaths of Nicholas Carroll, Robert Carter, Abraham Van Bibber, and William Smith, four of the lessors of the plaintiff, were also suggested; and it seems, by the bill of exceptions, although not so stated in the record, that Washington Van Bibber was made a party lessor in the place of Abraham Van Bibber. ' ■ '

^ the lleW ^le cause ^11 the County COUl't, in September 181’7, the plaintiff read in evidence the certificate. hf su rtrey °f a tract of land called Roper’s Increase surveyed for Tfomas Roper onthe 20th of October 1667, and the grant of a tract called The Enlargement, for which this action was brought, granted to John Israel' on the 10th of July 1724, for 100 acres.’ He also gave in evidence, that said two tracts were p ply located by bim on the plots. And it was admitted by the parties, that the whole of said two tracts came by sundry mesne conveyances, and the .will of the said John Israel, their father, to, and were legally vested in, John Lacón i 7 . 7 ° J ■ rael, Gilbert Talbot Israel, and Robert Israel, in equal por- * i previous to the 1 ,, „„ of 7 r iions, in fee simple, as tenants in common, year 1751, except two tracts of 100 acres each, parts Tates his Forbearance, which had before that time been legaily vested, in fee simple, one in Joshua Sewell, and the other in Robert Chapman, by two several deeds from «/o/jn "Tale, which are located by' the plaintiff on the plots, and which he offered evidence to prove were truly located. further gave in evidence a deed from J. L. Israel to George Buchanan, for 150 acres, part of the tract called Tates his Forbearance, dated the 7th of July 1731; and dence that said deed was truly located by him on the plots, J r rT1 r 7 \ He also read m evidence a aeed írom G. I. Israel, ana a . ■ .. certain Charles iiidgehu dated the 26th oí June 1732, to ° 07 Charles Carroll, surgeon, of and for all the said G. T. r 7 ® 7 raePs part of the tracts of land called Yates his Forbear-X anee, and The Enlargement-, and a deed from C. Carroll, surgeon, to Benjamin Tasker, Daniel Bylany, Charles Carroll, of Jlnnapolis, and Daniel Carroll, of Buddington Ma- > of the land so conveyed to him by G. T. Israel, dated the He also gave in evidence, some time after the execution of the deed last mentioned, and before the 26th of August 1743, C. Carroll, of ,. . , _ -«Ti dmgton Manor, m the last mentioned deed named, died, and that all'his right and interest under said last mention- ° t . ed deed, to the lands therein mentioned, descended to Daniel Carroll, his eidest sen and heir at law, and his heirs. ft or, of and for four undivided fifth parts, one fifth to each, of the land so conveyed t 25th of'September 1733. He also read in evidence a deed from R. Israel to C. Carroll, of Annapolis, purporting to be for the use of ■and of C. Carroll, surgeon, C. Carroll, son of Daniel, I). Dulany, and B. Tasker, dated the 26th of August 1743, for all the said R,TsraePs part ofilie landp called Enlarge-merit, and Tatés his Forbearance. ‘ ilc also 'read in eviSebee abend of conveyance 'from/. L. Israel to John ° - _ Hurd, for 100 acres ot land, part or the tract called Yates 7 1 his Forbearance, dated the 24th' of December 1730, and assignment of said bond to B. Tasker, dated the 25th í'ebrnáry 1745, and a deed from/. L. Israel" %o £. Tas purporting tobe for the use of himself and C. Carroll, Esq. of Annapolis, C. Carroll, surgeon, D. Dulany, and C. Carroll, son of Daniel, by the name of Charles Carroll, of Duddington, of and for the land mentioned and describ-. ed in said bond to Hurd, being all the residue and remainder of any or all the lands devised to him by his father, John Israel, except 151 acres conveyed to, G. Buchanan, which deed bears date on the 15th of June 1750, and was recorded by a decree of the chancellor on the 18th of December 1794. And the plaintiff and defendants admitted that the said deed must be so located as to lie entirely within the lines of Yates his Forbearance as truly located. And that all the undivided part, estate and interest, of C. Carroll, of Annapolis, in the said lands, or any of them, Under and by virtue of said deeds, or any of them, descended to, and became legally vested in, Charles Carroll, of Carrollton, one of the lessors of the plaintiff, and bis heirs;, and that all the undivided part, &c. of B. 'Tasker, in and to the said lands, or any of them, became legally vested, by sundry mesne conveyances, in Robert Carter, one of the lessors of the plaintiff, and his heirs; and that all the undivided part, &c.of<7. Carroll, of Duddington, in and to the said lands, or any of them, descended to, and became, legally vested in, Daniel Carroll of Duddington, one of the lessors of the plaintiff; and his heirs; and that all the undivided part, &c. of C. Carroll, surgeon, in and to the sard lands, or any of them, became vested, by sundry mesne conveyances, in Nicholas Carroll, one of the lessors of the plaintiff, and his heirs; and that said lessors, so far as they had any title to or estate in said lands, or any part of them, held the same as tenants in common at the time . of bringing this action. And the plaintiff, to prove that all the interest and estate of D. Dulany of- and in said lands, or any of'.hem, became vested, by sundry descents and mesne conveyances, in Abraham Vanbibber, Isaac Vanbibber, and William Smith, lessors of the plaintiff, and their heirs, and that they held the same as tenants in; common with each other, and with the other lessors of the. plaintiff, at the time of bringing this action, read in evidence the last will and testament of the said D. Dulany, dated the 26th February 1752, in which will no mention is made of the land in dispute, nor is there any residuary devise, which the plaintiff relied on as evidence that said ' Daniel Dü-, lany died intestate of said lands, and left Daniel Dulany, 'barrister, of Annapolis■, his eldest soñ and heir at law. And also a deed from Walter Dulany, in said will mentioned, bearing date the 26th of November 1759, to D. Dulany, barrister, in the said will mentioned, son of Daniel, of and for one moiety of the part of the said lands, to which D. Dulany, the father, had been entitled by virtue of the aforesaid deeds, or any of them. And also a deed from D. Dulany, barrister, son of Daniel, to said Walter, for one moiety of said lands, bearing date the Same day with the deed last above mentioned, but executed after it. [¡See these deeds recited in 1 Harr. Sf Johns. 170, 171.] And also a deed from D. Dulany, barrister, to his son Daniel Dulany, for the other moiety of said lands, 'which deed is dated on the 16th of September 1772. -He-also gave in evidence, that D. Dulany, (the third,) the grantee in the last mentioned deed,'‘being entitled under said deed to the said moiety, and possessed thereof, joined and 'adhered to the king of Great Britain in the war of the revolution, in the year 1777, whereby all his estate and interest of and in said moiety became confiscated to this state, and was, on the 4th day ofMay, 1785, sold by the intendant of the revenue of the state, claiming to act by authority of and according to law, to William Smith, one of the lessors of the plaintiff, Josias Carvill Hall, and Ayuila Hall; which said J. C. Hall and A. Hall, afterwards assigned and transferred their parts and interest, Under said sale, to said W. Smith, and I. Vanbibber, two of the lessors of the plaintiff, to which said W. Smith and I. Vanbibber, the chancellor of the state, claiming to act for and on behalf of the state, and by authority of law, conveyed the moiety last above mentioned, by two several deeds, one to W. Smith, bearing date on the 12th of December 1792, for four fifth parts of said moiety,- and the other to I. Van 'Bibber, bearing date the lltli of October 1792, for one fifth part of said moiety. He also gave evidence, that before the war of the revolution, and after the date of the above mentioned deed from D. Dulany, of Annapolis, barrister, to W. Dulany, his brother, the said W. Dulany died, leaving Daniel Dulany, his eldest son and heir at law, otherwise called Daniel Dulany, of Walter, to whom all the said Walter’s right, interest and estate, in the said land called The Enlargement, and Tates his For bearance, being the right' demised as aforesaid from D. Du* tany, (the first,) in and to one undivided moiety of the one undivided fifth, part, which originally belonged as aforesaid to D. Dulany, (the first,) descended and became vested in him in fee simple; and that D. Dulany, soli Of Walter, during said war, adhered to arid joined the king of Great Britain against the United Slates of America, whereby his interest in said lands became and was confiscated to this staté) -arid was afterwards sold by the Intendant of the Revenue of the State, claiming to act by authority of law, to Abraham Van Bibber, one . of the original lessors of the plaintiff, and to Thomas Stone and Daniel of Saint Thomas Jenifer, whose rights under and by Virtue of said sale; were, afterwards legally transferred to A., Van Bibber, to whom the chancellor of the state, claiming to act for and on behalf of the State, and by authority of law, Conveyed the last mentioned moiety in fee simple, in and by two several deeds dated, one on the 5tli of February 1787, and the other the idth of September f-792, for one half o'f the said mpi¿ty . He also gave in evidence, that W. Dvlány and D. Dulany, sons of the first named D. Dulany, and those claiming under them, were in the actual possession of the said undivided tenth parts held by their said father as above mentioned, holding the* Same under the title derived from their said father, as tenants in common, with C. Carroll of Annapolis, C. Carroll of Duddingtonj B. Tasker, and C. Carroll, surgeon, and those claiming under'them respectively, till they were turned out of possession, as hereinafter mentioned, by E. and S. Nor-wood. He also gave in evidence, that A. Van Bibber died on or about the 11th of June 1805, having first made and duly published his last will and testament in writing, by which he devised all his right, interest and estate, of and in the said undivided moiety of a fifth part, or undivided tenth part, to Washington Van Bibber, and his heirs, who hath since been made a party in this cause as the law directs . The defendants then read in evidence.the patent of a tract of land called The United Friendship, granted to John Larkin, on the 1st of September 1687, for 700 acres; and a deed from the aforesaid J. L. Israel to- Ed ward Norwood, dated the 28th of March 1760, for a tráct of land called The Land of Goshen, another called Addition, and another called Cannon’s Delight-, “also all other rights, titles, interests, claims and demands, and unto any tracts or parcels of land devised to said J. L. Israel by his father’s will, or that as heir at law became the property of him the said /. L. Israel.” And gave in evidence that said patent and deed were truly located by the defendants on the plots in this cause. And also gave in evidence, which was admitted by the plaintiff, that É. and 8. Nor-wood, formerly defendants in this cause, were at the time of bringing this action, and long before, seized in fee, as tenants in common, of and in the tract of land called The United Friendship, and of and in all the estate, right, title and interest, in and to the lands called The Enlargement and Yates his Forbearance, which vested in the first mentioned E. Norwood undér the deed to him from J. L. Israel and that all the estate, title and interest, of E. and S. Nor-wood, the former defendants, in and to said lands, or any of them, hath passed to, and is now legally vested in, the present defendants in this cause. They also gave in evi - dence, which was admitted by the plaintiff, that a bill in ' chancery was filed by the lessors of the plaintiff against J. L. Israel, for ordering the recording of the deed from J. L. Israel to B. Tasker, and a decree thereon made, which is herein above set forth. They also read in evidence the act of assembly of 1815, chapter 147, which it is admitted was passed at the instance' of the lessors of the plaintiff, who then composed the Baltimore Company, hereinafter mentioned, which act, it was agreed, should be read from any of the printed copies of the acts of the general assembly of this state. They also gave in evidence, and it was admitted by the plaintiff, that a bill in chancery, since the institution of this Suit, was filed by a part of the lessors of the'plaintiff against the remaining lessors of the plaintiff, which parties were known by the name of The Baltimore Company, for a division of the lands held in common by them, upon which bill and proceedings thereon, a partition was decreed and made of the tract of land called Yates his Forbearance, in and by which decree and partition all that part of the said tract which, according to its true location, covers and includes any part of the tract called The Enlargement, as located by the plaintiff on the plots in this-'cause, was decreed and assigned to Washington Van Bib-her, in severalty. The plaintiff then gave in evidence, that the original lessors of the plaintiff, or those under whom they claim under and by virtue of the several deeds from J. L. Israel, G. T. Israel, and R. Israel, were, before the time of bringing this action, actually ousted and turned out by E. and S. Norwood, the original defendants in this cause, of and from all that part of the tract of land called The Enlargement, for which this action was brought, as located on the plots in this cause, which is included within the lines of the tract called Tates his Forbearance, as located by him on said plots, and held the same till the present time. He also gave in evidence, that at the time of the execution of the deed from J. L. Israel to E. Norwood, of the 28th of March 17"6,0, the said E. Nor-wood, the grantee, had -notice of the said deed’ of the 15th of June 1750, from J. L. Israel to B. Tasker, and others. He also gave in evidence, that at the time of making the several deeds from R. Israel to C. Carroll, Esquire, of Annapolis, and others, and from J. L. Israel to B. Tasker, Esquire, and others, the persons to whom, or for whose use the said deeds and each of them were severally executed, received actual possession and livery of seizin of and in the lands purported and intended to be conveyed in and by those deeds severally and respectively. And the evidence which he offered to. prove livery of seizin from J. L. Israel to Tasker, and others, consisted in this, that he produced the bond from J. L. Israel to Hurd, and the assignment thereof to B. Tasker, and company, and proved, that soon after the date of that bond, Hard was in possession of the land in said deed mentioned, and remained in possession till the time of the assignment, or some short time after, when he delivered the possession thereof to the agent of B. Tasker, C. Carroll, of Annapolis, C. Carroll, surgeon, G. Carroll, of Duddington, and I). Dulany, who, and those claiming under them as aforesaid, remained in the actual possession and occupancy of said land till the execution of the deed last mentioned, and from that time till they were turned out of possession by E. and S. Norwood as aforesaid,* and that E. Norwood, father of E. and S. Norwood-, lived on The United Friendship, in the neighbourhood of the land mentioned in said bond, and set up a claim thereto at the timé when possession was delivered to the agent as aforesaid, and from that time to the date of the deed of the 28th of March 1760, And the evidence which he offered to prove livery of seizin with the said deed from R. Israel to C. Carroll, of Annapolis, for the use of himself, and others, consisted in this, that he gave evidence to prove, that from the time of 'the execution of said deed the grantees, or the cestui que use therein mentioned, .and those claiming under them, down to the lessors of the plaintiff, were in possession of said land, claiming it under the title derived in manner aforesaid, from J. L. Israel, R. Israel and G. T. Israel, until they were turned out of possession by E. and S. Norwood in manner aforesaid. And the evidence which he offered to prove that at the time when the deed from J. L. Israel to ft. Norwood was made, the said Nonvood had notice of the deed from J. L. Israel to B. Tasker, for the use of himself, and others, consisted in the depositions heretofore taken and filed in this cause, and given in evidence by consent. The defendants then prayed the court for their direction to the jury, that under the evidence aforesaid, the plaintiff was not entitled to recover; which direction the court, ¡'Dorsey, Ch. J.] gave. The plaintiff excepted; and the verdict and judgment being, against him, he appealed ■^o this court.

*epaiaíeetldem res pits Ofo’fiamu nUtiie lBsorsfralSted “ail thenInland1,‘S* the terest6 hid ^'been tindivided portim

The court are of opinion, that the fifth, sixth and seventh lines of The United Friendship, must run with and bind on the’lines of the land of George Fates, and that the fourth' line of The United Friendship must be controled’ by the said fifth, sixth and seventh lines of said land, and terminate on the line of Fates’s land, wherever the jury may find it will strike the same by elongating or shortening the said fourth line. The court are of opinion, that the opinion expressed by the court below in the third bill of exceptions be reversed- ■

JUDGMENT REVERSED.

the whole, to a several ami entire interest m part—iíeia, Chat although the plaintiff can jre|MS ,h!>n Jl.e claims, yet it consist mturg. ™'e<l; HeIPdedy’dl“"du,"^iy |¡,V.etüuiV<imded a-°romety;SbnthS undivided claims Z'cnHreiv, nov an entirety «iwn he tiemanus an undivided pm'* non

If an ejectment by the name of JS, 'vhith »? covered by another tj-aot J“^led A rec<,,ei?e de«is\°L’’med in 1750, under which the plain-^-.a “o,!S!ue &OT-¿ÜS “ÚÍtJ® «bií-g %• "lUhñ™!g ofllretl evidence, that iw>iuihetn.« ol tlniV execution, theg.annistheie. in numed, and thl’?e , {¡¡L,u1dll]“ft-r PO>Sl Sajen of whiXi ufe pilin' j? the 7>1 unuft’, were in po>sisajcn of the fund, caim{j¡c®weree]é“t¿a

¿redfrom»'tl>d, a^eilSe'iUx'afa have bee» extent-ed lo them by \heir íhll‘tír. f0,r the same laud, as 10 “d,"te ¡£¿"¿£.'“¡5 üii!í ‘“¡¡Ji “«S’

tal was not evidence of the land having been convcyed to them by the vecited deed? ’Vo recover in an action of ejectment, the lessors of the . plaintiff* must have a legal title in the land at the commencement and trial of 'the cause

The cause was ai'gued in this court,- at this term, before JBuchanan, Earle and Johnson, J.

Harper, for the appellants,

cited the act of 1785, ch. 72, ?. 11. Carroll’s lessee vs. Norwood, 1 Harr, Johns. 174, 175, 179. Norwood vs. Carroll’s lessee, ante__Griffith’s et al. lessee, vs. Moore, in the General Court May . term 1791. Runnington’s Eject. 227, 410. 1 Mod. 9,59. 5 Mod. S3. 2 Blk. Cam. 324. Gilb, Com. PL 104. Hob.. 5, and Moale vs. Howard;

Winder and Pinkney, for the appellees,

referred to 3 Bar,, Ab. tit. Feoffment, (A.) 145, (B: 2) 151. Ibid tit. Joint-tenants, Sfc. (L.) 708. Phill. Evid. 356, and Co. Litt. 273.

Johnson, J.

delivered the opinion of'the court. This was an action of ejectment brought to recover two tracts of land called Brown’s Adventure and The Enlargement. The plaintiff having made out no case for the recovery of Rrovm’s Adventure, the question was, whether he had a title to the whole of The Enlargement, or any part thereof, for which he was competent to recover in this action?

In the discussion of this case several points have been ably and ingeniously argued, on which it is not necessary for this court to form an opinion. The first was, whether two deeds, the one by Robert 'Israel to Charles Carroll, bearing date the 26th of August 1748, and the other from John L. Israel to Benjamin Tasker, dated the 15th of June 1750, under which deeds the plaintiff claims, could operate otherwise than as deeds of bargain and sale; and secondly, whether the recital contained in the deeds of in-1 denture between Walter Dulany and Daniel Dulany, and e converso, was evidence of the existence of the deed executed, purporting to have conveyed the land, so as to exclude their father from having died intestate as to that-land;--and yet, that the same' recital was not evidence ofthe land 'having been conveyed to them by the recited deed.

In the view the court has taken of this case, these points need not be determined. For if the plaintiff is incompetent to recover, supposing the deeds from the two Israel’s to pass the land, and to vest the legal estate therein in the manner contended for on the part of the plaintiff, and supposing the recital in the deed from Walter Dulany to be adequate to cause full efficacy to the deeds of partition between Daniel and Walter Dulany, still giving them such effect, the plaintiff cannot recover in this action; and as the opinion of the court below was in general, that on the facts as stated, the plaintiff had no right to recover, 'the judgment must be affirmed-

The lessors of the plaintiff derive their title to the land through the deeds from Robert and John L. Israel, and it is contended that those deeds passed the land to five persons equally in fee as tenants in common. The portion of the land that Daniel Dulany was entitled to, having become liable to confiscation, was sold as confiscated land to Jlbrat ham Van Bibber, one of the lessors of the plaintiff, wh’o having died pending the suit, on his death being suggested, his son Washington Van Bibber was made a party to the action.-

Pending the present action a bill was filed in the court of chancery, by part of the lessors of the plaintiff, against the rest of them, (all of the parties being known by the. name of The Baltimore Company;) and a decree was obtained, by which all that portion of The Enlargement, which was owned in common by the company, and comprehended in Yates Ms Forbearance, was vested in, severally in Washington Van Bibber. Subsequent to that partition, The Baltimore Company applied to the legislature, and obtained the passage of the act of 1815, ch 147, to vest in Henry W. Rogers, Samuel J. Bonaldson, and Thomas L. Emory, all the land which belonged to The Baltimore Company, and had been sold by them, but not conveyed, and all the land that their remained unsold and undivided, in trust, for them to give deeds to those to whom any land had been sold and not conveyed, on compliance with the terms of sale, and to lay off, sell and convey, the residue of the land for the benefit of the company. Had this act preceded .the application to the court of chancery for a partition, or before the partition took place, the whole of The Enlargement, in which the company had an interest, would have been transferred to the trustees, but as the division separated Washington Van Bibber’s part, it is unaffected by this act of the legislature.

’ It thus appearing, that all the lessors of the plaintiff had, before the trial of the cause, parted with their legal interest in the land, except Washington Van Bibber, and the nature of his interest being converted from an undivided portion in the whole, to a several and entire interest in part, the question is, was the plaintiff competent to recover?

. An action of ejectment, although in form a fiction, is in substance a remedy pointed out to him who has a right to land, of which he' is wrongfully deprived; it is the title of the lessor, and not of. the nominal lessee, that is to be decided. If pending the action the nominal lease expires, the term may be enlarged; if the lessor dies, his representatives are to be made parties. But if the cause was to ,depend on the validity of the nominal lease, the term could not be enlarged, nor could the cause be affected by the death of the lessor; and yet before the passage of a recent act of assembly (1801, ch. 74, s. 38,) the death of his lessor, (there being but one,) abated the suit, although the nominal lease had a long time to run. To recover iii'this action of ejectment, the lessors of the plaintiff must have a legal estate in the land at the commencement and trial of the cause, and therefore, as all the lessors had parted with their legal estates before the trial, except Washington Van Bibber, no recovery could be had, unless fop his portion, if it be com* petent to recover that in the present action. The declara». tion has no count on a demise claiming the entire part of any . ° ■* J Por^lon °f the laud5 and although in actions of ejectment the plaintiff can recover less than he claims, yet it must consist of the same nature with that claimed. If he claims 100 acres, less than 100 may be recovered; if he claims an. undivided moiety, an undivided third may be recovered, or any undivided portion less than a moiety; but he cannot recover an undivided part when he claims an entirely, nor an entirety when he demands an undivided portion.

JUDGMENT AFFIRMED.  