#### STANBERRY’S LESSEE *v.*NELSON.

Refugee lands — uncertain description — sections—witness—lessor of plaintiff may testify for defendant if called, but will not be compelled to.

One of the lessors of the plaintiff cannot be compelled to testify for the defendant against himself, though if called on, he *may*testify.

One hundred and fifty-eight acres in r. 22, t. 5, sec. 12 and 17, north half, or one hundred and fifty-eight acres in half sec. 17, in sec. 12, are too vague to pass real estate.

The subdivision of the-refugee fractional township will not be judicially noticed, jthc manner of dividing and numbering must be proven by the party setting up a claim under them, unless admitted.

Ejectment. The plaintiff read a patent, dated 15th February, 1832, for a section of land to P. Cazoue, one of the refugees named in the act of congress of February 1801, *(Swan’s Land Laws*69; 3 *L. U. S.*420.) The possession of the defendant was admitted.

The defence called Irvin, one of the lessors of the plaintiff. He declined taking the oath because a party in interest, and claimed thathe could not be compelled to give evidence against himself.

O. *Parish,*for the defendant,

insisted, that he could wave his objection on account of the interest of the party, and compel him to testify.

6?. *Swan,*contra.

If the witness’s name has been improperly used as a lessor of the plaintiff, the court on motion will compel a disclosure of the authority, and strike out the demise; but a defendant cannot lie by until the trial, and then call a party to testify.

Wright, J.

The witness is substantially a party to the record and liable for costs. The defendant’s counsel admits that if the witness had been called on the part of the plaintiff, he could object his interest. The interest is direct, the verdict could be used either for or against him. The defendant cannot compel the witness to testify, though if he wave the objection, and call him, he may testify if he please. Ruled out.

*767
      *O. Parish,*

now moved for anew trial for alleged error in ruling out the auditor’s proceedings. The land is described on the- auditor’s books and maps in the same way, and the sections are numbered up to 40. The only evidence by the plaintiff, was the patent to Cazoue, and the tax proceedings showed the title in him.

*II. Stansberry,*contra,

cited *Swan's L. Laws*35, 68.

The defence then offered the proceedings of the auditor with a deed to make out a tax title. The land was described in these proceedings as one hundred and fifty-eight acres in r. 22, t. 5, sec. 12 and 17, north half.

Objected to as insufficient description.

Wright, J.

The evidence is offered under the act of congress of 1801, *(Swan’s L. Laws*68.) That act only authorized the subdivision into half sections of three hundred and twenty acres, the fractional townships in the 16th, 17th, 18th, 19th, 20th, 21st, 22d ranges. The description here is the north half of sec. 12 and 17, in the 5 t. and 22 r. We may notice the township to be a fractional one, and one that might be subdivided, but can we take judicial notice that it has been divided, and how? We think not. The description of the land, as *part of sec.*12 *and*17, is too vague and! uncertain to pass any title — there would not probably be such a number as 12 *and*17, or 12 ire 17. We cannot tell which section is meant. The evidence is ruled out.

Verdict for defendant.

Wright, J.

The plaintiff relied on the demises of Cazoue and Stanberry. Cazoue’s patent was for three hundred and sixteen acres and twenty-four perches, being half section No 17 west, in township No. 5, and r. 22, of the refugee lands. The defendant sought to make title to one hundred and fifty-eight acres under a tax sale, and offered the auditor’s deed and record. The record showed the land advertised by the following description:

*iRoswold Wilcox, range*22, *township*5, *section*12, *half section*17, *one hundred and fifty-eight acres,'*and was so sold. This evidence was ruled out .as too vague to convey title to any particular land, though not then accurately presented to the court. The question now.is, was the evidence properly ruled out by the court?

The act of congress of 1795, *(Swan's L. L.*35) provided for the survey of lands into townships, and the subdivision of the alternate townships into sections of a mile square, or six hundred and forty acres, and for the designation of the sections by progressive numbers, beginning on number one at the northeast section in the township, and progressing regularly west and east alternately across *768the township. The whole number of sections in each full township would: be thirty-six. There was no evidence that township *b*in the' 22d range was one of those divided into sections, but if it was, we are without evidence that the township was entire and contained sec. 12. The act of Feb. 1801, directs the subdivision of the fractional townships in range 22, into half sections of three hundred and twenty acres, and that a plat of the same be returned to the secretary of the treasury. There is no evidence that this was done, except the description in the patent to Cazoue, for half section 17. How it was subdivided, does not appear. The defendant insists that the defect, if any, affects the plaintiff’s title-as well as the defendant’s. That would be true if it were not for the fact, that the defendants admitted themselves in possession- of the land described in the patent. Without that admission the plaintiff would have been compelled to prove the land covered by his patent, possessed by the defendant, which would have included the subdivision, numbers, &c. Cazoue’s tract was always entered for taxation as r. 22, t. *5,*half section 17, until 1828, when the description was changed to *r.*22, *t. 5. sec.*12, *half section*17. The patent description is *half section*17 *west,*which most probably conforms to the law,if run into sections first, and subdivided into halves by central lines north and south; and leads to the impression that the halves retained the number of the section, and were designated as *east*or *west*of the division line. The auditor’s description in the sale is *¿half section*17 *in section*12, and rejects the original numbering of the section, and supposes another progressive numbering of the *half sections.*This we cannot presume without proof, and none is offered. If the township was so numbered, the land office furnishes the evidence of it, and the fact can be shown — what evidence we have, the patent, the early entries for taxation, are opposed to the defendant’s presumption. But if the half section were identified, certainty would not still be attained to. *One hundred and fifty-eight acres in sec.*17, *of three hundred and sixteen acres and twenty-four poles.*What part of the tract does the one hundred fifty-eight acres lie in? No one can tell, and therefore it is insufficient: (5 *O. R.*458; 3 O. *R.*569; 2 *O. R.*287; *4Pet. R.*350.

Motion overruled.