Topping v. Sadler

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.