#### *Stone v. Doe e. d. Hansbrough.

November, 1834,

Richmond.

(Absent Brooke and Brookenbrough, J.)

Deed — Indorsement Considered Part of* — Case at Bar.— Upon a deed of conveyance of land from B. to L. there is a writing- indorsed and signed by L. the bargainee, importing, that “it is understood that *163tw o acres of land in the deed conveyed, having been heretofore applied for the erection of a church, are excepted in the deed, and are to be located in the most convenient spot near the cross roads;” B. the bargainor, conveys two acres of land near the cross roads, by metes and bonnds, to S.; and H. claiming under L. brings e: ectment for the two acres of land against S. claiming under Í1. itKl.1), the writing indorsed on the deed from B. to L. is part of the deed, and not a distinct ex-ecutory contract; and, therefore, the defendantTM ejectment giving B.’s deed to L. in evidence, has a right to give in evidence the writing indorsed thereon also.

Upon the trial of an ejectment brought by Hansbrough against Stone, in the circuit court of Culpeper, for two acres of land in that county, the defendant filed exceptions to an opinion of the court; from which it appeared — That Hansbrough, to shew his title to the premises, offered in evidence, 1. a deed of Joseph Lewis to Samuel Washington, dated the 7th December 1812, conveying several parcels of land to Washington, and among them a parcel of 485 acres called Belville, which had been conveyed by Carter Beverley to Lewis; at the foot of which deed was subjoined the following — “Note: two acres of Belville above mentioned, were reserved by the said C. Beverley, as expressed upon his deed to the said Lewis recorded in the court &c. and are excepted in the above deed of Lewis to Washington.” 2. A deed of Washington to Robert Dunbar, dated the 18th March 1813, conveying the same lands to him; to which deed there was likewise subjoined the following — “Note: two acres of Belville are reserved, according to the reservation in the deed from C. Beverley to J. *Lewis, and in the deed from said Lewis to the said Washington.” 3. A ■deed from Dunbar to Peter Hansbrough now deceased, dated the 19th March 1813, conveying the same lands to him, with the like note thereto subjoined, viz. “Note: two acres of Belville are reserved, according to the reservation in the deed from Washington to the said Dunbar.” And 4. the plaintiff proved, that the two acres of land in the declaration mentioned were parcel of the Belville tract; that Hansbrough, in his lifetime, took possession of the whole of Belville, including the two acres in controversy, and built a shop on those two acres, and put his grandson, one Cochran, in possession of the whole of Belville; that about the year 1816, the shop being then vacant, the defendant Stone took possession of it and of the two acres in controversy, and had thenceforth continued to hold the same; that Hansbrough died in 1822, in possession of all Belville, except the two acres, and by his will devised the same to his son, the lessor of the plaintiff. And then the defendant Stone offered in evidence, 1. a deed executed by Carter Beverley to him, dated the 5th January 1819, conveying to him the two acres of land in controversy, describing the same by metes and bounds, as two acres lying in the north east fork of the cross roads, which were reserved to Beverley in his conveyance of Belville to Joseph Lewis: and 2. the conveyance from Beverley to Lewis, dated the 24th September 1806, conveying to him (inter alia) the parcel of land called Belville, by the name of Thompson’s tract; on which there was a writing indorsed and signed by Lewis, in the following words: “It is understood, that two acres of land in Thompson’s tract, having beqn heretofore applied for the erection of a church, are excepted in this deed, and are to be located in the most convenient spot near the cross roads.” And the court permitted the last mentioned deed of Beverley to Lewis, to be read in evidence to the jury, except the writing thereon indorsed, purporting to be a reservation of two acres for the use of a church, which the court rejected and excluded: to which opinion the defendant excepted.

*There was a verdict and judgment for the plaintiff; to which, upon the petition of the defendant, a supersedeas was allowed by a judge of this court.

Stanard, for the plaintiff in error,

said, 1. that the writing indorsed by Lewis on Beverley’s deed to him, was a part of the deed; Shermer v. Beale, 1 Wash. 11; Gordon v. Frazier, 2 Wash. 130, and, therefore, of necessity, it ought to have been read with the rest of the deed; and 2. that the writing indorsed was a plain exception, and reservation to Beverley, of the two acres of land out of the whole parcel conveyed to Lewis, so that he and those claiming under him acquired no title to those two acres.

Leigh, contra,

insisted, that the writing indorsed on the deed, though it was written on the same paper, was not therefore a part of the deed. He said, it was, in effect, an executory agreement: the whole land was conveyed by the deed to Lewis; and then it was agreed, that two acres, to be located, that is, afterwards located, at the most convenient spot near the cross roads, for the use of a church, were excepted. This was surely no reservation of two acres in the north east fork of the cross roads, which was the land in controversy, or of any particular two acres. The reservation could not operate till the two acres should be located; and a court of equity would not have decreed execution of the agreement, without laying Beverley under terms that the two acres should only be used for the purpose of a church. This agreement, therefore, was rightly excluded from the evidence, since it did not affect the legal title, and might have the effect of misleading the jury.

*

Bonds — Indorsement Considered Part of. — See *foot-notes*to Price v. Kyle, 9 G-ratt. 247; Smith v. Spiller, *16310 Gratt. 318; Gordon v. Frazier, 2 Wash. 130; Shermer v. Beale. 1 Wash. 11.

The principal case is cited in Price v. Kyle, 9 Gratt. 251.

CARR, J.

In Shermer v. Beale and Gordon v. Frazier, and other cases, both english and american, it is laid down, that such an indorsement as that on the deed from Beverley to Lewis, is to be taken as a part of the deed; yet the circuit court admitted the deed and rejected the indorsement. This was clearly wrong. What may be the weight of that indorsement as evidence, would be matter for the jury, after it should be before them. On this point, the *court below has given no opinion, nor need we. The judgment should be reversed, and the cause sent back for a new trial.

*164CABELL, L

The indorsement on the deed, was a part of the deed. It ought, therefore, to have been suffered to go to the jury, as evidence. The circuit court erred in excluding it; and for this cause, the judgment should be reversed.

TUCKER, P.

I think, there can be no doubt that the court erred in excluding the indorsement on Beverley’s deed to Lewis from the jury. That indorsement was a part of the deed, whatever might be its effect. Burgh v. Preston, 8 T. R. 483; 1 Bac. Abr. Condition, C. p. 634; Gordon v. Frazier, 2 Wash. 130. If the deed was introduced at all, it could not properly be garbled. The whole of it should have gone to the jury.

Indeed, the effect of the exception in the deed, was to create a tenancy in common, in the first instance, between Beverley and Lewis, the former having an undivided interest of two acres in the tract. Now the ejectment was for the two acres out and out. It was a claim in severalty; and it was, therefore, important to the defendant to shew, that the plaintiff had no right to turn him entirely out of possession, but only a right to recover his own social possession in the property. Had this indorsement on the deed been introduced in evidence, it would have shewn Stone’s title to an undivided interest to the extent of two acres, and the verdict instead of being for two acres in severalty, to which Hansbrough had no right, would have been for his undivided portion thereof.

I am of opinion, therefore, to reverse the judgment, set aside the verdict, and send the cause back for further proceedings; remarking, however, that the facts disclosed shew a case much more proper for a bill in "equity for partition, than for an ejectment.

Judgment reversed.