Mundell v. Perry

’ Martin, J.

delivered the opinion of the Court.

An action of trespass for breaking, and entering the close of the plaintiffs, and cutting down their trees, produced the appeal, that now becomes a subject of examination in this Court. * A warrant of resurvey was issued to the surveyor to locate such lands, as the parties deemed necessary, to explain their respective titles. Locations were made for both the plaintiffs and the defendant. But instead of placing their locations on one paper to give a distinct view of the whole, the surveyor returned one plot with the locations made for the plaintiffs, and a separate plot containing those made for the defendant. Under leave to add, and amend, he was directed by the Court, to place the locations he had made for the defendant, on the plot returned for the plaintiffs. Under the impression that these directions had been complied with, the plot letter B, was tiled in the cause, and the plot originally returned for the defendant, was retained by the surveyor. The plaintiffs having located a tract of land called Mar sham’« Rest, and the alleged trespasses to be within the lines of that land, as thus located, the defendant offered to shew a counter location, of that tract as made by him, on the amended plot, beginning at red A, running to near red D, and round to the beginning at red A, and to produce evidence”* of the correctness of that location, which was objected to by the plaintiffs.On reference to the amended plot we find four lines are drawn with yellow shading, beginning at red A, running to red D-, and round-to the beginning at red A, But whether these lines are to represent the location of any land, and if any what land, by whom it was made, or for what «purpose it was done, does not appear either by the location itself or any explanation on the face of the plot, or filed with the plot; nor does the certificate of the surveyor state he ever made such a location. The defendant then attempted to aid the defect by giving in evidence to the jury the plot originally laid out for him, on which Mat'sham’s Rest was located, and which had been retained by the surveyor, and by the parol testimony of the Clerk of the Court, and the surveyor, who stated in substance that the plots originally filed in the cause had been delivered to the surveyor, for the purpose of putting the locations made by the defendant, on the plot returned for the plaintiffs; that the surveyor under the impression that he had done so, returned the plot B, as the amended plot, which was filed in the cause, and the plot originally made out for the defendant was retained by him, which plot he produced in Court. This testimony was rejected by the Court, and presents the question arising upon the first bill of exceptions.

On the plot marked B, we find a parallelogram included within four lines shaded with yellow, but as before stated no name is given to the land, intended to be represented by that figure. It is not stated by whose direction it was made, nor for what purpose it was placed there, nor does the surveyor, in his certificate, say it was made by him. It is therefore a mere nullity. An imaginary location from which neither plaintiffs nor defendant could derive any information or advantage. Could the defendant clothe this nondescript with name, character, and legal effect, by the production of the other plot, and the parol evidence offered by him ?

If testimony out of the plot and explanations filed with them, could he received, to give name, and character, to unintelligible locations, it would defeat the object for which plots have been received as part of the pleadings in the cause. If you can resort to such evidence to explain one tract, you may resort to it, to explain all. It would then only be necessary to place certain lines upon a piece of paper without name, without explanation, and without stating the purpose for which they were made, and file it with the Clerk. What advantage would such an unmeaning paper be, to the parties ? It would not enable them to ascertain the grounds upon which his opponent relied, nor to make counterlocations of the lands, if such counterlocations were deemed proper. The object and intention of introducing plots in the cause, is to give certainty to the claim and defence, and to apprise the parties, that the locations of other lands are to be used to illustrate, and support the location of those under which they claim title. It is to prevent surprise, and therefore it has been the uniform practice of Courts, to reject evidence as to any object, unless it is located on the plots. If a tract of land has been located by one party, and not counterlocated by the other, the location is admitted to be correct. 3 Harr, and Johns. 13. But how is it possible, for a party to know whether a counterlocation is called for, until he is apprised that a location of the land is made? In the cause now before the Court, the plaintiffs located the tract of land called Mar-sham? s Rest, and upon an examination of the plot and explanations, seeing no counterlocation of that land, they had a right to conclude the location was admitted. Had the counterlocations been apparent by a proper explanation filed with the plot, they might have made further locations of that land to shew its true position and extent. But it is said this case stands upon different grounds. That the plot originally filed for the defendant, was still filed in the cause, and the plaintiffs might have resorted to it when they pleased. But what advantage or information could they derive from it ? The locations on the two plots are entirely different, and no man, unless he possessed the spirit of divination, could know by an examination of these two plots, that the figure within the yellow shading, and red letters on the amended plot, was intended to represent Marsham?s Rest, as located on the plot returned for the defendant. We therefore concur with the Court below in, the opinion expressed in the first bill of exceptions.

In the progress of. the trial of this cause, the defendant offered in evidence to the jury, a deed from Thomas Gantt to Patrick Sim, (under whom he claimed title,) for part of a tract of land called Quicksale, and to prove that the said Gantt was at the time of the date of the deed,, the owner, and holder of the tract called Marsham’s Rest. The deed states that the part of Quicksale, sold by the grantor,' was contained within certain metes and bounds, particularly specified in the deed. Upon a location of these lands it appeared a part of the land contained within the metes and bounds, mentioned in the deed for Quicksale, was included within the lines of the elder tract, called Marsham’s Rest. The Court were of opinion, (as appears by the second bill of exceptions) that the deed purporting to convey part of Quicksale by name, could convey ,no land but Quicksale. In this opinion we think they were decidedly wrong. Gantt, being the proprietor of both Marsham’s.Rest and Quicksale, if he conveyed the younger tract by metes and bounds, all the lands contained within those metes and bounds, would pass to the grantee, although part of the elder tract was embraced within them. .Many decisions of this Court might be produced, to sustain this doctrine, and whether it depends upon the .principle of carrying the intention of the parties into effect, or that a deed shall .be taken most favorably for the grantee, the law is now too well established to be questioned. Hawkins vs. Hanson, 1 Harr. and M’Hen. 523. Hall vs. Gittings, 2 Harr. and Johns. 119.

It may not be improper however to remark that this deed, as it appears in the record, was not legal evidence to be given to the jury. It was executed on the 5th of August, 1735, and does not appear to have been recorded, according to the provisions of the act of 1715. Whether the defendant might not have produced testimony to give it legal effect, had he not been stopped by the Court, is not necessary for us to decide.

The third exception appears to be abandoned by the ippellant, but if relied on cannot avail him. We concur fvith the Court in this exception.

The appeal in this case was entered in the year 1823, and therefore is not affected by the act of 1825, ch. 117, and it is the duty of the Court to notice errors, apparent on the face of the record, or any legal objections to evidence set out in the record, although they were not brought into view in the Court below, nor formed any part of the bills of exceptions. Speake vs. Sheppard, 6 Harr. and Johns. 86. The declaration in this cause does not state the name of the land on which the trespasses are alleged to have been committed. That still remains in-. The warrant of resurvey is open to the same objection. The surveyor is directed to lay down all that plantable land, called —¶-, and when we examine this supposed amended plot, we think we hazard nothing in saying, a more defective one never was presented in a Court of justice. Having placed the locations of several tracts of land upon the plot, an explanatibnxis made to some of them, and to others no possible clue is given, by which you can ascertain either the name of the land located, the party by whom, nor the object for which it was located. Some of the locations appear to be merely imaginary, lines, drawn without any authority, and Without any meaning. Nor is it in a better situation when we look at the certificate of the person who returned this amended plot. It professes to have been made by virtue of a warrant of resurvey to lay down all that plantable land called-, without naming it. Nor can this blank be supplied, by either the warrant of survey, or the declaration filed in the cause. The same ---is to be found in all. The certificate to the plaintiff’s location then states, “ I hereby certify, as surveyor of the county aforesaid, that I have in the presence of the sheriff of said county, carefully resurveyed, and laid down the tracts of parcels of land above explained, &e.” To this certificate two seals are annexed, but neither the name of the sheriff nor surveyor appears to the certificate. The certificate to the locations, made by the directions of the defendant, is still more defective. That does not state by whom the survey was made, or that it was made in the presence of the sheriff. It is subject to the same objections as to blanks with the certificate to the locations made for the plaintiffs. It is not signed by either the sheriff or the surveyor. This Court cannot affirm a judgment so fatally defective on the face of the proceedings.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.