APRIL TERM, 1774.

#### Henry Smith Hawkins *against*John Hanson.

THIS was an action brought for a trespass committed upon a tract of land called *Martin's*Triangle, lying in *Charles*County.

At *September*term, 1771, a verdict was taken for the plaintiff, subject to the opinion of the Court, on the following case stated, viz:

The tract of land claimed by the defendant, and in his possession, was granted on the 1st of *November,*1710, to *Michael*Martin, by the name of *Zachid's Old*Bridge, by the following description as contained in the grant; “ be-*a*ginning at a bounded white oak, standing in the west u line of *FendalPs*Delight, thence with the said land, E. ££ 20 perches, then N. E. 30 perches, thence E. 60 perches, £C thence S. 31 deg. 9 min. westerly 18S perches, thence *a*W. 66 perches, thence with a straight line to the first tree, £C containing 73 acres, more or less.”

The tract of land claimed by the plaintiff, and in his possession, called *Mar this*Triangle, (the tract mentioned *524in the declaration,) was granted to *yohn*Martin, on the 17th of October, 1739, by the following description as contained in the said grant: “ Beginning at a bounded white “ oak, standing ori a small ridge by a small branch, running “ thence S. E. 160 perches, thence N. E. 11 d.eg. N. 124 “ perches, then to the beginning, containing and laid out for “ 60 acres, more or less. Which patent was grante'd on a “ certificate dated the 11th of *y-une,*1724.”

The said *John*Martin, patentee of *Martin’s*Triangle, became also seised of the tract of land called *Zachia’s Old*Bridge, by descent from his ancestor, and being so seised of both said tracts of land, did, by his deed of bargain and sale, dated the 30th of March, 1734, convey the said tract of land, called *Martin!s*Triangle, to *yacob*Miller, by the following description as contained in the deed; “ begin- “ ning at a bounded white oak, standing on a small ridge by “ a small branch, runningthence S. E. 160 perches, thence “ N. E. 11. deg. N. 124 perches, then to the beginning, “ containing and laid out for 60 acres, more or less.” And the said tract of land, called *Martin’'s*Triangle, afterwards became the right of the plaintiff by deed, from *yohn Mil*ler, the heir at law of the said *yacob*Miller, in which deed the land is described as in the aforementioned deed, from *Martin*to *Miller.*

The said plaintiff entered into the said tract of land after the purchase aforesaid, and was in the actual possession thereof.

The said *John Martin*being seised as aforesaid, after the month of March, 1734, conveyed the tract of land called *Zachia’s Old*Bridge, to *yohn*Wheatley, described in the deed to be “ all that tract of land called *Zachia’s Old*“ Bridge, containing and laid out for 73 acres, more or “ less.” And the said tract of land called *Zachia’s Old*Bridge, afterwards became the right of the defendant by deed, from *John*Wheatley, bearing date the 8th of *May,*1749, by which deed the land is described according to the • *525courses and distances in the patent. The said defendant entered into the said tract of land after the purchase, and was in the actual possession thereof.

1 he tract of 1 snd called *ZachicH.s Old*Bridge, is elder than the tract of land called *Marthds*Triangle, as appears by the grants thereof, and it is admitted that the said tracts of land lie foul of each other, the said tract of land called *Martinis Triangle*running into the other tract, so as to gain or loss, by entanglement, upwards of twenty acres. And it is also admitted, that the land in contest, so lying foul as aforesaid, is not in the actual enclosure of either plaintiff or defendant, and that the defendant has' occasionally cut timber thereon, the same being chiefly woodland. And upon die whole facts stated, the question of law for the determination of the Court is, which hath the best title to the land in question, lying entangled and foul as aforesaid, the plaintiff or the defendant.

*j,. Rogers,*for plaintiff.

*J. Hall,*for defendant.

*Rogers,*for plaintiff. (Short notes.)

It is a principle of law that the intention of the parties to a deed must always prevail, if it be consonant with the rules of law. 2 *Bac.*Abr. 660, 661. Gilo. *Uses,*235. *10*Mod. 47. 1 *Vent. 137.*141. *37 I Burr.*286. When *John Martin*was in the possession of both the tracts of land, he must have known the bounds and extent of them. His inserting the courses and distances in his deed to *Jo.sob*Miller, of *Martin's Triangle,*shewed his intention to convey all the land contained within those bounds. Every deed for a valuable consideration is to be construed most strongly against the grantor or bargainor. *Co. Lilt.*183. a. 197. a. 5 *Co. 7.*There is sufficient certainty in a grant, if the thing intended to be granted, and the parties to the grant, can be ascertained. Savil!, 26. The part of *Triangle*which lies foul of *Old Bridge*must be considered by reputation to be part of the *Triangle;*ior grants of a thing *526by its name of reputation is good. 1 *Co.*46. 2 *Leon.*190. Suppose the whole of the tract called the *Triangle*lay within the tract called *Old Bridge;*or that part of the tract was recovered from the bargainee as being included within an elder survey; the bargainor would be liable under his warranty. It then followed, that the right to the whole would necessarily pass.

Johnson, for plaintiff. (Short notes.)

One man cannot have two estates in fee-simple in the same land ; and cited 2 *Roll. Abr.*42. where the grantor was misnamed, and 10 *Mod.*45. where the grantor was not named at all, which defect was supplied by intendment. Informality will not vitiate a deed. *Co. Litt.*7. a. also *Fitz.*261. *Reputation,*2 *Roll. Abr.*186. 4, 5. 6 *Co.*65. *Teh.*190. A grant from the crown shall convey all the title in it, though in by several rights ; also 10 *Mod.*35, 36. *Lili. Convey.*19. *Mod.*378. Suppose the *Triangle*only had belonged to Martin, at the time he made the conveyance of it, and that he had afterwards purchased the elder tract, he contended he would have been estopped by his deed. *Co. Litt.*47. b. 352. a.

Stone, for defendant. (Short notes.)

The certificate of *Martin?s Triangle*was in June, 1724. *Martin*conveyed, and after his conveyance he obtained a patent in 1739. The patent could convey nothing more than the Proprietary had a right to convey, tie had already conveyed away his right to the part of *Triangle*included in *Zachid?s Old*Bridge, at the time the patent was granted. Any thing in the grant purporting to convey more is a mere nullity. It is the policy of the law that there should be a notoriety In the conveyances of land. Anciently livery and seisin was the mode of conveyance in use, but now the enrolment of deeds answers all the purposes of livery of seisin» But the eni'olment of a deed for *Mar*
      *527
      *t in's*Triangle, carries with it no notice of any part of *Old Bridge*being conveyed by that deed. The purchase was made of *Martin's*Triangle, and it was intended to convey only *Marthas*title to that tract. A bargain and sale must he expounded equally and indifferently between the parties. *Gilb.*Uses, 105. 3 *Atk.*734. 11 *Mod.*153. 1 *Wils.*342. See the act of 1715, c. 47. s. 10. The courses and distances specified in the deed can only operate to *convey Martin's Triangle.*It would have been otherwise had it been agreed to sell at so much per acre, within the metes and bounds.

The Provincial Court gave judgment, upon the case sta= | ted, for the plaintiff. The defendant appealed.

*Jeremiah Tozunley*Chase, for plaintiff,

in the Court of Appeals.

Question. Did all the lands included within the metes and bounds of *Alariin's Triangle*pass by *John Martin's*deed to *Jacob Miller ?*

In the discussion of this question I shall consider it as arising in a dispute between *John Martin*and *Jacob Mil*ler, about the construction and operation of *Marthas*deed to *Miller.*

To determine the construction of a deed I shall lay down two principles which are universally acknowledged.

1st. The intention of the parties is to prevail in the construction of deeds. 2 *Bac. Abr.*665. 1 *Burr.*285, 286.

2d. Every deed and grant shall be taken most strongly against the grantor, and most in favour of the grantee. Act of Assembly, 1715, c. 47. s. 9.

A Manor will pass by the name of a knight’s fee to fulfil the intent, although not its proper signification. *Shep.*83. *Plow.*160. 154. See also, as to the first principle, 2 *Mod.*239. *Carth.*343. *Hob.*277. *Gilb.*Uses, 235. 1 *Lev. Ca.*279. fol. 197. 1 *Vent.*137. 141. 372. Moore, 772* 773. *Co. IAtt.*313. a. *Art. Ass.*1715, c. 47. s. 9.

*528In support of the second principle. Every deed shall be taken most beneficially for him to whom made. *Plozv.*156. If one seised in fee grant to another, and say not for w^at time, it shall be for life of *grantee;*ahter, if the grantor be tenant in tail. *Shep.T.*84. *Plow. 287. Lili. 156. Hob.*166. *Co. Liu.*183. 19?. *Plow.*29. 31.

It was certainly the intention of the parties that the whole land included in the metes and bounds of the 7W-*angle*should pass. *John Martin*was the proprietor, and in the possession 'of *Old Bridge.*The purchaser paid a valuable consideration for it. *Martin*could convey the whole ; and it must be supposed that *Martin*shewed the land to *Miller*before the deed was made. He could not shew the land without going to the bounds. It cannot be supposed that *Martin*intended to convey less than was contained within the bounds, because it would have been contrary to good faith and honesty, and it cannot be presumed that he intended a deception.

It must be supposed they went on the land, and to the bounds, because purchasers could get no information otherwise, as to its location and quality. The name of the land could convey none as to either. The inserting of the metes and bounds is a proof it was the intent that the whole should pass ; if it had not been the intent, there would have been an expression as to what lay in the *Old*Bridge, or they would have mentioned only the name of the land. Construction is to be made on the entire deed, and so that every part may take effect, and no part be rejected. *Shep. T.*84. This rule cannot be infringed if the deed is construed to transfer only what lies clear of the *Old Bridge.*The insertion of the metes and bounds was nugatory, and that part of the deed must be rejected. But if a deed is construed to transfer the whole land included within the metes and bounds, no part will be rejected, and the deed will stand consistent in every part.

That the words in the deed be taken most strongly against the grantor, and most in favour of the grantee. I have shewn that it is the plain intention of the parties that *529all the lands included within the metes and bounds should pass. But cm a supposition that the intention was doubtful, agreeably to this last principle, the whole must pass, because such construction is most lor the benefit of the grantee. The deed contains two descriptions of the thing to be granted — .the name, and the *metes and bounds :*according to the first, it is doubtful what was intended to pass ; according to the second, the thing is plainly and certainly described and ascertained. The second description is most in favour of the grantee. Suppose the name had not been inserted, and the description had been *all that parcel of*land, beginning, &c. there would have been no dispute. Suppose there had been a mistake in ihe name, and it had been called *the Square,*and the metes and bounds had been added as they are here, would not the land pass ? Certainly it would ; besides, the twenty acres included in the *Old Bridge*was reputed part of the Triangle, and acquired that name by reputation. The land is called *The Triangle*in the certificate, the patent, and *mesne*conveyances. The deed, from *Martin*to Miller, was made between the time of returning the cer.ificate and issuing the patent; suppose the land was called by a different name in the patent, would not the deed operate to pass the land according to the metes and bounds ? Martin, in his deed, warrants the land against all persons, with an exception as to *Samuel*Perry. This circumstance is conclusive as to the intention, and proves undeniably that the lands within the metes and bounds were intended to be conveyed ; for, if the *Old Bridge*had belonged to any body but Perry, the land which run foul was to be made good. And shall not the land, because the elder tract belongs to himself, pass, when he had a power to pass it, and does warrant it ? This is too absurd to be insisted on.

Reputation. In favour of a purchaser, all the lands contained within the bounds shall be presumed to have acquired the name of *The Triangle.*By the name of a house, or tenement, with the appurtenances, 100 acres of land, at a great distance, may pass. *Lili.*159. 2 *Sid. 76.*A man *530baptized by the naine of *I.*and is known by another name, and he grants by the known name, it is good. 2 *Roll.*Abr. 42. A man by his own act shall not frustrate his own deed ; nor by his negligence. *Martin*should have excepted to the deed. *Hob.*41. Land called Jaywich, and the forged deed called it *Jayxvich Park. Fitzg. 57.*261. Two closes were reputed to be part of a Manor, but were not so in reality *;*a recovery suffered of the Manor, with the appurtenances, a good bar to the two closes. 1 Vent. *51. Cro. Car.*308. 2 *Mod.*69. 2 *Roll. Abr.*186. pi. 4, *5.*Savill, 26. 6 *Co. 65.*1 *Lev. 27. Vin.*Grant, 41. 2 *Roll. Rep.*266. 1 *Co.*46. a. Owen, 153. 1 *Keb.*691. *Sid.*190.

Suppose the *Old Bridge*had included the whole of the Triangle, would the deed of Martin, on a valuable consideration, have had no operation ? It will not be contended. It would have conveyed the whole notwithstanding, on the principle that the intention is to prevail, and that the deed shall be taken most beneficially for the grantee. The reason is the same when only a part is taken away. The twenty acres had acquired the name of *The*Triangle, and will pass by the name of reputation. If a conveyance of this kind is not to have its full operation, it will open a door to fraud, and the greatest iniquity. A man may shew the bounds of a younger survey, the greatest part of which is swallowed up in an elder survey, belonging to the *grantor;*the purchaser knows nothing of the elder tract, and thinks he is to have the land within the bounds shewn him. He is afterwards told it interferes with an elder tract, and he is not to have the land purchased. Suppose *A.*surveys his land called *Black*Acre, and includes an acre of vacant land, and gives the resurvey a new name *;*he afterwards conveys the land, by the new name, by metes and bounds, will nothing pass but the acre ? Yes ; the whole land within the bounds will pass. The certificate, patent and conveyances of Triangle, sufficiently establish the name of reputation as to the twenty acres. Suppose a general warranty, and the *Old Bridge*belonged to another person, *531would not *Martin*be liable to make good what was foul ? As to name of reputation, see *Finch’s*case, 6 *Co.*63, 64, 65. Reputation of a vulgar name will serve in grants and conveyances. 6 *Co.*64. A grant to a bastard, by the surname of him who is supposed to have begotten him, is good, if he be known by that name. 6 *Co.*65. A Manor will pass by the name of a messuage, if it be used to be so called. *S'hep. T.*84. The deed expresses the *Triangle*to contain sixty acres, which also proves that the whole of the land included within the bounds of the *Triangle*was to pass. The words more or less are mere 'words of form, and arc generally put in, even where land is sold by the acre. The word less has no signification in this case, because *Martin*warranted all the sixty acres, except as to *Perry’s*land.

The Court of Appeals, at *May*term, *1787,*affirmed the judgment of the Provincial Court.