APRIL TERM, 1770.

Lib. D. D. No. 16. fol. 565.

#### Samuel Chamberlaine’s Lessee *against*John Crawford.

THIS was an ejectment brought for a tract of land, described in the declaration, to be “ all that parcel of pas- “ ture land, lying and being in the town of Oxford, in “ *Talbot*County, which is contained within the following “ metes and bounds, to wit, beginning at a post standing *a*next the strand, on the bank of a ditch, whereon some “ cedars grow, in the aforesaid town of *Oxford,*to which “ said post, a fence lately put up by a certain *John Craw-u ford,*and also pailing belonging to a certain *Samuel*“ *Chamberlaine,*now in the possession of a certain *Mary*“ *Lenty,*doth join and running from the said post with the said pailing, and the bank of the ditch aforesaid, *S. u*14 *deg. E.*33 *perches and 2 links,*to another post stand- “ ing at the other end of the same ditch, and at the street u commonly called Back-Street, and from thence running u N. 66 deg. 40 min. E. 15 perches and 19 links, and “ then *N.*8 *deg.*45 *min. W.*32 *perches and 22*links, to a “ post standing on the aforesaid strand, where the said “ *Samuel Chamberlaine's*pailing, did formerly join to the “ pailing which the aforesaid *John Crawford*claims under *“*purchase, from a certain *Richard Gildart,*and from “ which post, at the distance of about 18 inches, stands a cherry tree, and from the aforesaid last mentioned post, running S. 69 deg. V/, 18 perches and 17 links, with *356“ the strand and the pailing heretofore set up by the afore- “ said *Samuel Chamberlaine,*to the beginning post, contain- “ ing three acres and four-tenths of an acre of land,” &c.

The surveyor in pursuance of the warrant of resurvey, t0Set^er with the plats, returned his certificate as follows : “ I do certify, that I have in pursuance, &c. resurveyed “ that part of the town of *Oxford,*for which the ejectment *a*is brought, &c. beginning at a post standing near the “ strand by the bank of the ditch, marked on the plot by “ the letter M. and running from thence *S.*14 *deg.*30 *min.*“ *E.*33 *perches,*to another post at letter N. then N. 66 “ deg. 40 min. E. *15*perches and 19 links of the chain, i£ then jV. 9 *deg. 15 min. TV.*33 1-4 *perches,*to another “ post marked by the letter P. standing about 18 inches. *u*from a cherry-tree, then straight to the beginning.”

At the trial of this cause at the Assises held for *Talbot*County, in September, 1769, the plaintiff offered to make out title to the parcel of pasture land, laid down on the plats described in the certificate returned in this cause, from the letter M. to the letter N. from thence N. 66 deg. 40 min. E. *15*perches and 19 links, from the end of that line to the post at the letter P. from thence with a straight line to the beginning, and offered to prove that the post at the letter M. was the same post mentioned in the declaration, as the beginning of the parcel of pasture land declared for, and that the post at the letter N. on the plat, was the same as the second post mentioned in the declaration, and that the post at the letter P. upon the plat, was the same as the third post mentioned in the declaration, and offered to give evidence, that the lessor of the plaintiff had been in the peaceable possession of the land, so described upon the plats, and by the certificate returned in the cause upwards of twenty years, next before the bringing of this ejectment, but did not offer to shew any title to the parcel of pasture land mentioned in the declaration, according to the first ancf third courses, and distances therein mentioned.

*357Thereupon, the counsel for'the defendant moved the Court that there was a material variance between the description of the parcel of pasture land mentioned in the declaration, and the parcel of pasture land laid down on the plats, and described by the certificate returned in the *cause;*in this, that the first line of the said parcel of land mentioned in the declaration, is said by the declaration, to run from the beginning post, with the pailing and ditch in the declaration mentioned S. 14 deg. E. *33*perches and *2*links, to another post, standing at the other end of the same ditch, and at the street commonly called Backstreet, and the first line of the parcel of pasture land laid down on the plat, is described by the certificate, to run from the beginning post S. 14 deg. 30 min. E. 33 perches to another post, and the third line of the said parcel of land, as described in the declaration, is said to run N. 8 deg. 45 min. W. 32 perches and 22 links to a post, whereas the third line of the said land laid down on the plats, is described by the certificate, to run N. 9 deg. 15 min. W. 33 1-4 perches to a post; and therefore moved the Cqurt, that the plaintiff should not be permitted to give evidence of his title, or of the twenty years possession in the said parcel of pasture land, laid down on the plats, and described in the certificates returned in the cause.

*The Court*was of opinion, that the said variance was not material, but that the land mentioned in the declaration, and the land laid down on the plats and certificates, sufficiently appeared to be the same lands, and permitted the plaintiff to proceed in the cause, and give evidence of his title in the parcel of pasture land laid down on the plats, and described by the certificates.

To this opinion the defendant excepted, and appealed to

*358*Holly day,*for defendant.

There is a variance between the declaration and the plat and certificate, in the first and third lines. If the 1 ’ plaintiff cannot shew something to warrant the courses and ¿[istances jn declaration, the variance will be fatal. If an ejectment be brought for a tract of land, and it be described by the courses and distances of the grant, which calls for bounders at the end of the lines, on the survey the bounders are found to be variant in course and distance from the grant and declaration, I suppose this variance would not be material, for the declaration would be warranted by the grant, and the plat and certificate would be warranted by the fact. The land must be described in the declaration, according to the grant, or else on a general de= fence, the plaintiff must be nonsuit, and in laying down the land he must go to the bounders called for. So I conceive it would be in an ejectment, for part of a tract of land described by the courses in the conveyance of that part, calling for bounders, which should be variant from the courses and distances in the deed. But where there is nothing from whence to take the description, but the fact itself of the location, I think a variance in the declaration from the fact, will be fatal; for if *any*variance be allowed, why not any other variance ? if a variance in a less degree, be allowable, why not in a greater ? Where will you stop ? Every man is presumed to know his own case, and under that presumption, the law holds him to a true description of it. In this case, the plaintiff did not shew any title to the land in dispute, by the description in his declaration, but he shewed title to several lots of ground, in the town of Oxford, which included the pasture land laid down upon the plat, and described in the certificate. It does not appear there is any such piece of pasture land in Oxford, as the plaintiff describes in his declaration. The cases cited in support of the exception, were 1 *Salk.*385. 2 *Soil. Abr.*677. 21 *Vin.*Trial, 348. 2 *Salk. 6G1. Gilb. L. Evid.*240. *Dy.*161. pi. 41. 5 *Bac.*212. 4 *Bac.*657. Variance in recital of *359statutes. *Fin. Trespass, 547, 548.*Things that appear to be different, cannot be averred to be the same. 2 *Stra. 1171.*Variance of a penny, between judgment and *scire facias.*1 *Stra.*231. What was the Court, in this case, to give judgment for? was it for the land described in the declaration, or that described by the plat and certificate ? The topics principally insisted upon by the plaintiff were these two: 1st. That the same precision in description, is not now necessary, as was formerly required in ejectments. This may be admitted, but the objection here, is not the want of precision in the description. 2d. That the description here used, would be sufficient in a conveyance to pass the land. This principle applies against them; it being a rule that every man’s deed shall be taken most strong against himself, and beneficially for the grantor.

*Jenings,*for defendant.

The ground of the objection to the variance, is, that the plaintiff cannot shew any title to the land described in the declaration, but the title he sets forth is variant in the first and third course. It is a rule of law that the proof must be conformable to the declaration. The intent of the declaration is to notify the charge to the defendant; but if the plaintiff were to allege one thing in his declaration, and be permitted to prove another, it would be prejudicial, rather than beneficial to the defendant. Libels in the. civil law Courts, and bills in Courts of Equity, are on the same principles. *Gilb. L. Evid.*190. It may be objected, that if a patent calls for a boundary, the plaintiff may locate the land according to the boundaries, though such location would be different from the courses. But this is very different from the present case, because he would shew a grant calling for these boundaries, and therefore the location would be warranted by his title deeds. If, therefore, the plaintiff should shew a grant calling for these boundaries, it would be different; but he has called for boundaries not in his grant, and therefore is locating land different from his title, as the courses do not correspond. By this *360means, one may have a grant for one tract of land, and , bring an ejectment for another, to which he knows he has no title, and support his title by title-papers, for a different tract of land. Thus, his patent mentions land according to course and distance. In his declaration he mentions boundaries, and lays the land different from the course and *distance;*he proves that the tract of land has such boundaries, and although he has no grant for it, yet he recovers. Where a grant mentions only course and distance, the location must be conformable to it; for there is nothing but that to guide us, and if there be any variation it will be fatal. If it were otherwise, though the Lord Proprietary had not inserted boundaries in his grant, a party in ejectment might recover double the land he has a grant for. So if the plaintiff should not recover here, he may bring another ejectment for the same land, and recover. The law has been strict in keeping people to a description according to their title, and by this means no injury is done; every man can locate his lands according to the deeds in his possession, on which his title *depends;*but if a variance is allowed in one instance, where can we stop; there must be some rule, otherwise it must be left to the different dispositions of Judges, which vary according to their comrplexions,

*y.*Henry, for defendant.

This case is not like the case of laying down a grant to a tree with course and distance. In such case, as the tree is the most certain, and as both expressions cannot be gratified, the one which is most certain must prevail. In this case there was no grant or conveyance to the plaintiff, or any thing but the truth of the fact to support his title. There is more certainty required in ejectment than in trespass, Every man is supposed to be acquainted with his own case, and if he undertakes to give a description of it, though he describes what is unnecessary, yet he is obliged, to prove what he has alleged, otherwise the defendant *361might suffer a disadvantage, because the plaintiff would claim by one description, and recover by another. In this case, the plaintiff has taken his description from the fact, and the fact does not support that description. This is a case which will be of consequence to suits in general. The general description is four acres of pasture land in the town of Oxford, in *Talbot*County. This may be the case hereafter of the City of Annapolis, the lots of which, in the survey made in IMS *byStoddart,*are described as running from post to post; also with course and distance they would vary, were ejectment now brought. It is a rule, that, by whatever description land will pass by convey-: anee, it may be recovered in ejectment, *i*Burr. 133. 135. 141. 144.

*Goldsboroug-h,*for plaintiff.

Where there are calls, the description by course and distance is useless. The surveyor, in running this land, began at the identical bounder mentioned in the declaration as the *beginning;*and in running course and distance from one post to another, the variation of 30 minutes in the course, and of two links in the distance, might have happened from the difference of compass and chain carriers. The plaintiff offered to shew his title to the land from boundary to boundary, and not according to the course and *distance;*for where bounds are given, the course and distance may be considered as surplusage, and if they are found not to agree with the bounder, they may be rejected. There was a sufficient certainty in the declaration, without paying any regard to the course and distance, and they ought to be disregarded. What would be a sufficient description in a real lease, would be sufficient in an ejectment. As to what description is sufficient in a conveyance, cites 3 Leon. 135. *Dy. 376.*pi. 25. Suppose the plaintiff had not inserted any course or distance in his declaration, but had simply alleged the land to run from bounder to bounder. Or suppose he had said, as in 2 *Roll. 677.*pi. 1 „ *362on the south with a mill, without saying *in the tenure of f. S. Ploro.*189. 191, 192. 3 *Lev.*334. *Burr.*329, 330. Suppose the demise in the declaration had been a real lease, would not the land pass from post to post, notwithstanding the course and distance. It is a mathematical truth, that the land mentioned in the declaration is the same land mentioned in the certificate, and laid down on the plats, running from boundary to boundary; the course can make no difference. The cases cited in favour of the defendant are cases of trespass and not in ejectment. He agrees to the cases cited; but the description of *a close*is uncertain. So in 2 *Roll.*677. abutting on a mill is uncertain ; there is no certainty there but in the words *in the tenure of y.*S. Compare this case with Dyer, 376. pi. 25. The case in *Dyer*shews the distinction, that where a name is given one need not prove the abuttals, but where no name is given, the abuttals must be proved. And he agrees that in trespass the abuttals must be proved where there is no certain description. In trespass it is not necessary for abuttals to be proved with precision. 2 *Roll. Abr.*678. For in trespass, if the abuttal be laid north, and it Incline north, though not directly, it is sufficient. *Trials per*pais, 439. If a title is set out in trespass where it was not necessary to do so, the plaintiff need only prove possession. 5 *Bac.*215. 2 *Bulst.*288. S. C. Every abuttal in trespass must be proved with some degree of exactness. 5 *Bac.*215. In the case of 2 *Stra.*1171. the variance in the proof made it a very different thing from what was alleged in the declaration. But in the present case it appears by the certificate to be one and the same land as mentioned in the declaration. Ejectments are now considered on different principles from what they were formerly. Why this minute description ? It is that it may be known and distinguished from all other things. 1 *Burr.*139, 140» 629, 630. It is impossible that this description should answer four other acres of land.

*363The Provincial Court overruled the exception, and gave judgment for the plaintiff. The defendant appealed to the Court of Appeals. The judgment was affirmed at *May*term, 1772.