#### DOE EX DEM. DANIEL McPHAUL’S HEIRS *vs.*JOHN GILCHRIST

Where a grant called for certain courses and distances, and from the last (the third line,) “ thence No. 87 W. 199 poles to a hickory, thence *the courses of the Swamp*to the beginning.” *Held,*that though the distance from the last corner to the Swamp gave out nine chains and fifty links from the Swamp, and no hickory corner was to be found, nor was there any proof of its existence, yet the line should be extended to the Swamp and thence pursue its courses.

*Held*further, that the declaration of an owner of the land, that his fourth line run from the termination of the distance mentioned in the third line® directly to the beginning, did not of itself divest him of his title to th« land, lying between that line and the Swamp.

Under our confiscation of laws, in the absence of commissioners or other officers appointed by law for that purpose, the County Court had no au. thorily to seize, condemn and sell the property of any Tory of the Revolution, then dead, without notice to his heirs.

The cases of *Den ex dem. Sandifer*v. *Foster,*1 Hay. 277, *Hartsfield*v. *Westbroolc,*1 Hay. 258, and *Pender*v. *Coor,*2 Hay. 183, cited and approved.

Appeal from the Superior Court of Law, of Robeson County, at the Spring Term, 1847, his Honor Judge Battle presiding.

*170This was an action of ejectment to recover the possession of a small parcel of land, of which it was admitted that the defendant was in possession.

The plaintiff claimed under a grant to James Pace, made in 1700. They could show no conveyance from James Pace, but they produced a deed from William. Pace to Richard Smith, dated 1763, and a deed from the said Smith to Neil McPhaul dated 1772, in both which deeds the same description was given as in the grant to James Pace. The plaintiffs then introduced as a witness, Mrs. McArthur, who testified that she was a daughter of Noil McPhaul, that her Father .died about the close of the Revolution prior io the year 1784, leaving Daniel McPhaul his eldest son ; that her father was a Tory Captain and died in Charleston, in the service of the British Government, that her *mother*resided on a different tract of land, from that which her father bought of Richard Smith, and that the witness and her brother made a crop about the time of the death of her father, With the permission of her mother, on the Smith land ; that shortly afterwards her brother married and settled on the land bought of Smith, and continued to reside on it from that time until his death, since the commencement of this suit. Mr. Campbell, another witness for the plain tills, also proved that Daniel McPhaul was the eldest son of Neil McPhaul, and that he took possession of the land, which his father bought of Smith, in less than five years after the Revolution and continued to reside on it until after the commencement of this suit. The plaintiffs then introduced one of the surveyors, Mr. Fauly, who testified that the beginning corner of the grant to James Pace was admitted ; that he found a red oak standing there marked as a corner with marks apparently corresponding with the age of the grant; that he ran the courses and distances called for as the first, second, and third lines of the grant, but he found no marked trees on either of said lines: that a corner was marked at the end of the *171second line, but apparently of a very recent date ; that he found no hickory or any other tree marked, as a corner at the end of the third line, which was nine chains and fifty links from the white oak swamp on the direct line to it. The plaintiffs contended that the call for the fourth line of the grant to Pace which was from the fourth corner, “thence the courses of the swamp to the beginning,” entitled them to go from the end of the third line in a direct line to the swamp, and thence along the edge of the swamp to the beginning, which would include the land in dispute, and they insisted that the swamp was intended as the western boundary of their land.

The defendant claimed under a deed of recent date and contended that the line was the fourth from the corner of the third line direct to the beginning line of the plaintiff’s grant, both because that was the proper construction of the call of the fourth line under the grant to Pace, and because Daniel McPhaul recognised it as the line of his land, and to establish this fact, he introduced Mr. Campbell, who testified that he was the brother-in-law of Daniel McPhaul, that the witness owned a seventy acre tract of land adjoining, and that Daniel McPhaul never claimed that his third line ran through witness’ said land ; that some thirty or forty years ago he heard Daniel McPhaul say, that the line represented as running directly from the end of the distance of the third line, was his line and saw some marked trees upon it, but they were fresh marks. Neil Patterson, another witness for the defendant, testified that he was living with Daniel McPhaul in 1838 and 1839, and, being a blacksmith, he wanted some coal and asked Malcolm McPhaul, a son of Daniel, and now one of the lessors of the plaintiffs, whether he could not make it from the tops of certain pine trees, which the defendant had cut down in clearing a field within the disputed ground, when Malcolm told him that he would have to ask the defendant for the priviledge of taking them.

*172The defendant contended further, that the plaintiffs had no title to the land, which they claimed, because it had been confiscated by the State in the year 1782, as the property of Neil MePhaul, on account of his having joined the enemy; and introduced a reeord from the •office of the County Court of Bladen County, a eopy of which is sent as a part of this case.

The Court held, that the judgment of confiscation relied on, did not take away the title of the plaintiffs, because .at the time it was given, the title of Neil MePhaul had descended to his oldest son and heir at law, Daniel, and that Daniel was entitled under our constitution to a trial by jury before his title could be divested; and further, that though the Court declared the said land to be •confiscated, it had never been taken possession of by any officer for the State. The Court held further, that the •call in the grant to Pace, which was also contained in the deeds from William Pace to Richard Smith, and from him to Neil MePhaul, carried the fourth line to the .swamp, and along the edge of the swamp to the beginning, and that the evidence introduced by the defendant, to show that Daniel MePhaul only claimed to the line mentioned before, did not divest him of his title to the piece in dispute, in the absence of any conveyance from him or an adverse possession held under such circumstances as would give title to the possessor. The jury returned a verdict for the plaintiff, and the defendant moved for a new trial for error in the charge of the Court. Motion over-ruled, and judgment for the plaintiff, from which the defendant appealed.

*[Copy of the Record from the County Court of Bladen.]*

« STATE OF NORTH CAROUNA, > Bladen County. $

At a County Court of Pieas and Quarter Sessions held for the County oí Bladen on the first Monday of August, 1842. Present, &c.

The widovp of Neil McFall, being cited to appear before this Court, to shew eause, if any she has, why the estate of her husband, Neil MoFail, *173should not be forfeited, and the said widow acknowledged that her husband had joined ths enemy of this State and acknowledged the right of confiscation, and the Court were of opinion that the said McFall’s estate be confiscated.”

Copy of record certified in the usual form.

*Strange,*for the plaintiffs.

*Badger,*for the defendant,

Daniel, J.

The lessors of the plaintiff claimed all

the land, contained within the boundaries of a grant made in the year 1760, to James Pace, lying' on the east side of Drowning creek, beginning about a mile above Overstreet’s bridge at a red oak, thence 87 E. 179 poles to a pine, then S. *3*W. 17.9 poles to. a pine ; thence N. 87 W. 179 poles to a hickory ; thence the courses of the swamp to the beginning. The distance mentioned iij the third line gave out nine chains and fifty links from the swamp ; there was no hickory corner to be found, nor any proof of its existence. The Judge charged the jury, that the call of the fourth line of the grant from the hickory,. “ *thence the courses of the Swamp to the*beginning,” entitled them to extend the third line to the swamp, (a natural boundary,) and thence along the swamp to the beginning *red oak.*This part of the charge we think was correct. In *Ben*&c. *Sandifer*v. *Foster,*2 Hay. Rep. 247, the call of the last line was, “ thence along the river to- the beginning the *river*was held to-be the boundary, although the line coming towards the river called for a *white oak*at its termination; which was half a mile distant from the river. *Hartsfield*v, *Westbrook,.*1 Play. 258, *Pender*v. *Coor,*2 Hay. 183.

2dly. The Judge charged that the declaration of Daniel McPhaul, that his fourth or west line ran from the-termination of the distance mentioned in the third line, to-the beginning red oak, did not divest him of his title to-the land, lying'between that line and the swamp, in the *174absence of any conveyance from him, or adverse possession, held under such circumstances as would give a title to the possessor. Wo see no error in this part of the charge. If the land in dispute belonged to Daniel MePhaul, he could not part with the title to it by parol. Nor was his admission binding on him and those who claim under him, if they were made under ignorance or a clear mistake of his rights.

3dly. Neil MePhaul, in the year 1772, purchased the land mentioned in the aforesaid patent of Richard Smith. Neil MePhaul died about the close of the Revolutionary War, and before the year 1784, leaving Daniel MePhaul his eldest son and heir at law. The heir entered on the land, shortly after the death of his father, and continued to reside on it from that time to the- commencement of this suit. Neil MePhaul was a Tory, and died a captain in the service of the British Government. The County Court of Bladen, at its August sessions, 1782, entered a judgment of confiscation of the estate of Neil MePhaul, as is mentioned in the case. The Legislature had, by the confiscation acts, declared that the lands of all such persons, as adhered to and aided the enemy, by taking up arms in their favor, should be forfeited. Commissioners of confiscation were directed to be appointed in each county, who were to give bond and take an oath faithfully to perform their duties. - The duties of these Commissioners, was to take possession of lands and moveable property, in the name, and for the use of the State, which, by the Act of Assembly, were declared to be forfeited to the State *;*and to sell the same, and make titles to the purhasers, and account for the purchase money. The Act of 1780, eh. 170, *(Rev. Code,)*enacts, that for want of Commissioners of forfeited estates in each county, the Sheriff or Coroner, and where there is no Sheriff or Coroner, the County Court is hereby strictly enjoined to seize and take into their possession, all such property as has been described in the said Act.

*175If the Court was authorized to act in the place of Commissioners, and if the order could be construed to *include*this piece of land, it condemned the land to confiscation, without any notice to the heir to defend, which was contrary to law. And, moreover, the land was never seized to the use of the State, by any officer or person, but remained in the actual adverse possession of the heir for more than sixty years before this controversy arose. We think, that the title of Daniel McPhaul never was divested, by any office found in the mode pointed out by any of the confiscation Acts. The judgment is affirmed.

Pur Curiam, ' Judgment affirmed,