Denn v. Jones

Bartol, J., delivered the opinion of this Court. By the Act of 1852, ch. 177, several important changes were made in the law governing proceedings in ejectment, but by the 11th section, all cases then pending were excepted from its operation. Afterwards, when the provisions of the Act of 1852 were incorporated in the Code, it was provided, Article 1, sec. 1, that all suits then pending should he proceeded with, to final judgment as if this Code had not been adopted. This suit having been instituted before the passage of the Act of 1852, must he governed by the pre-existing law ; neither the provisions of that Act nor of the Code having any application to the case.

The appeal comes before us upon six hills of exceptions, taken by the plaintiff below to the ruling of the Circuit Court, in refusing to allow the several patents and deeds offered in evidence to be read to the jury, on the ground that they had not been located on the plats. These will he severally examined in the light of a few familiar and well established rules of law applicable to the questions presented, which will he first stated. 1st. Eo title paper not properly located on the plats is. admissible in evidence. 3 G. & J., 307 . “But when the grant and the deed are the same, location of both is unnecessary.” Dorsey on Ejectment, 46, 47. “So where the whole of a tract is located on the plats, a deed conveying the whole may he given in evidence though not itself located.” Beall vs. Bayard, 5 H. & J., 127. Hall vs. Gittings, 2 H. & J., 383 . “Two deeds, one for a specific portion and the other for the residue of the same tract, the patent being located, were received in evidence without being otherwise located.” Hall vs. Gough, 1 H. & J., 119 . ⁴⁷⁴ 2nd.

Certainty is required in locations, and “where the-title paper is so unintelligibly represented on the plots and explanations, as that it is almost impossible for either the Court or jury to say whether the locations are truly made, such title paper cannot be used as proof.” Budd vs. Brooke, 3 Gill, 227, 228 . 3rd. When a party takes defence on warrant, and the plaintiff has located his pretensions-, such location is admitted, unless the defendant counter-locates. (See Dorsey, 56, and cases cited, note 8.) If the counter-location covers the same- ground as the locations of the plaintiff, it is equally an admission of the correctness of the latter. 4th. Where the same title paper is located by both parties in the same manner, covering the same ground, the location is binding upon both, and neither is allowed to dispute its correctness.

Armstrong vs. Risteau, 5 Md. Rep., 256, 275, 276 , The first exception was taken to the refusal of the Circuit Court to admit as evidence the patent of “Moore’s part of Barbadoes Enlarged,” granted to George Moore on the 21st of February, 1761. The same patent was- afterwards offered with the proposal to accompany it with certain proof mentioned in the-third exception, and again offered in the sixth exception, on the ground that it had not been counter-located by the defendant. It is immaterial to consider the third exception further than to say it involves the same question as-the first, because unless the paper was admissible upon other grounds, it would not be rendered so by the other proof offered in connexion with it. In support of the ruling below, and to show that this-patent has not been properly located, the counsel for the appellees has called our attention to several supposed discrepancies between the table of courses and distances accompanying the plat and those named in the patent, upon a care ⁴⁷⁵ T»1 examination of whicli it appears that they -are the same.

The sixth line S. 80°, W. 14 perches, which had been omitted in the transcript, has been supplied by agreement of counsel. In the patent the following courses and distances are given viz : 2nd. E. 18°, S. 183 p. 3rd. N. B. E. 39 p. 14 S. B. W. 66 p. 19th W. B. N., 85 p. 25th E. B. S. 150 p. 26th N. B. E. 150 p. These are stated in the table accompanying the plat as follows: 2nd.

S. 72°, E. 183 p. 3rd. N. 11£°, E. 39 p. 14th. S. 11£°, W. 66 p_. 19th. 1ST. 78J°, W. 85 p. 25th. S. 78f°, E. 150 p. 26th.

N. 11|°, E. 150. These are identically the same-; there is no discrepancy between them. It is objected by the appellees that no proof was taken on the survey to establish the true beginning called for by the