Duncan v. Madara

Mr. Justice Gordon delivered the opinion of the court, With the counsel for the plaintiffs in error, we are at a loss to understand, what, after the affirmation by the court below of the plaintiffs’ sixth point, there was, in this case, to leave to the jury. It is admitted that the warrant to Duncan and Madara, of the 24th of August, 1856, being located upon lands formerly appropriated by the Moore survey, was worthless, and [568] if James Madara, under whom the defendants claim, acting as the agent of H. B. Wilkins, the trustee of the Duncan heirs, made the several agreements and leases mentioned in said point, under which Carper and others, as tenants, entered into the possession of the premises in dispute, it is impossible to understand by what species of attornment the possession of these tenants can be made to enure to the benefit of the defendants. If Carper’s testimony, in connection with the lease of the 27th of March, 1862, is to be taken for verity, and no good reason appears why it should not be so taken, then were the plaintiffs in the lawful possession of the premises, and from that possession they could not be ousted until some one' exhibited a better right thereto. If, however, there be any such right superior to that of the plaintiffs, it certainly does not appear in the case now before us; the defendants have shown nothing of the kind in themselves, and the court should so have instructed the jury. But, leaving this part of the case, we are inclined to think that the plaintiffs’ fourth point should have been affirmed without qualification. The land in dispute was undoubtedly covered by the Hugh Moore survey, the title #to which was, previously to the 10th day of June, 1829, vested in John Montgomery, and he, by his deed of that date, conveyed all of that tract which he had not theretofore sold, to Peter Shoenberger, under whom the plaintiffs claim. The following is the description of the property as found in that deed: “Also one hundred and ninety-seven acres, being the south end of a tract surveyed by virtue of a warrant in the name of Hugh Moore, being the remaining part of said tract, hitherto unsold.” Now, this Hugh Moore was a .continuous tract of 447 acres, and it seems that previously to the time of the execution of the deed above mentioned, Montgomery had sold 250 acres from the north part of the tract to Henry Blake, and this, of course, left 197 acres, the southern part of the survey, unsold at the time of the conveyance to Shoenberger. Thus the call in the deed definitely fixed the northern boundary of the Shoenberger purchase, and this call,'in the absence of actual line marks found upon the ground, must control: Caldwell v. Holler, 4 Wr., 160. But such marks are entirely wanting, unless they are to be found on the south end of the Blake lot. It is conceded that the survey cannot be closed on the north by the lines of the deed. The corner called for at the end of the line running ninety perches, north 8 deg. east from the pine, is a post, and from this we would not expect to find work upon the ground; but a still stronger indication of this fact is, that the line from this corner instead of running in such a direction as to close the survey, leaves it altogether and runs one hundred rods into the adjoining Lud [569] wig Cow tract, where it is left without connection, as we may say, In the air. It is true, by reversing this course, and allowing a variation of some five or six degrees, it might be made to reach the John Moore corner, but even then the line would be too long, if the draft before us be correct, by about twenty-five perches. It will thus be seen that to close this survey by the courses and distances called for in the deed is impossible. Admitting, however, the possibility of such an attempt, it would still be unavailing unless the northern line was found upon the ground, otherwise it could not be allowed to prevail against, or over-ride the call for the northern part of the original tract. The judgment is reversed, and a new venire awarded.