#### Baker v. Seekright, Lessee of Glascock.

Monday, November 17, 1806.

Deeds — Course and Distance — Parol Evidence,* — When a deed mentions the course and distance of a line, •without any other description thereof, parol evidence is admissible to prove marked trees, not in the course or termination of that line, to be the true line intended.

Ejectment† — Expiration of Term before Decision on Appeal — Effect.—That the term stated in a declaration in ejectment has expired, previous to the decision on an appeal, is a circumstance of no importance.

*

Deeds — Course and Distance — Parol Evidence. — To the point that when, a deed m entions the course and distance of a line without any other description thereof, parol evidence is admissible to prove marked trees, not in the course or termination of that line to be the true line intended, the principal case is cited with approval in Elliott v. Horton, 38 Gratt. 772, 773; Dogan v. Seekright, 4 Hen. & M. 136. In this last case, it is said; “In *that*case *(i. e.*the principal case), parol evidence was admitted to establish a *marked*line, which did not correspond with that mentioned in the deed either as to course or distance. It was so admitted, on the ground that the description in the deed may have been mistaken, whereas the marked or reputed line, being more stable and permanent, ought to prevail, or, at least, be submitted without prejudice to the consideration of the jury.” In Elliott v. Horton, 28 Gratt. 766, the decision of the court was that, in an action of ejectment, parol evidence is admissible to prove that the call for course and distances in a deed are mistaken, and do not designate the true boundary of the land intended to be conveyed. See also, citing the principal case, Hunter v. Hume, 88 Va. 30, 13 S. E. Rep. 305; *foot-note*to Pasley v. English, 5 Gratt. 142. In descriptions of lands or questions of boundaries, the rule is settled in Virginia and West Virginia, that natural land marks, marked lines and reputed boundaries will control mere courses and distances or mistaken descriptions in surveys and conveyances. Adams v. Alkire, 20 W. Va. 486; Gwynn v. Schwartz, 32 W. Va. 496, 9 S. E. Rep. 883; *foot-note*to Shaw v. Clements, 1 Call 429; *foot-note*to Herbert v. Wise, 3 Call 239; Dogan v. Seekright, 4 Hen. & M. 135; *foot-note*to Smith v. Davis, 4 Gratt. 50; Pasley v. English, 5 Gratt. 151; *foot-note*to Marlow v. Bell, 13 Gratt. 527; Clarkston v. Virginia Coal *&*Iron Co., 93 Va. 260, 24 S. E. Rep. 937; all citing the principal case.

†

lEjectment. — See monographic *note-*on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

This was an ejectment, brought in the District Court, by the appellee against the appellant. The declaration claimed the lands by the ordinary description. A mesne deed of conveyance under which the plaintiff claimed, called for the line in dispute by course and distance only. At the trial, the lessor of the plaintiff offered evidence, that a particular line represented on a plat in the cause, was well marked, and was the line of the plaintiff’s land. To the admission of this the defendant objected, and prayed the opinion of the Court, whether, as the call of the deed was for course and distance, without any other boundary, natural or artificial, parol evidence should be admitted to prove any marked trees, not in the course or termination of that line as called for in that deed, to be the true line called for or intended in the aforesaid deed. The Court was of opinion, that' such evidence was admissible. To this opinion an exception was taken. There was a verdict for the plaintiff for the lines from. H. to A. thence to B. thence to A. and from thence to H. and for one penny damage. The judgment was for the plaintiff for his term, yet to come, of and in the lines aforesaid, and the penny damage. From which judgment an appeal was taken to this Court.

*Botts, for the appellant, made the following points : 1st. That the description of a line by words of plain unequivocal import in a deed of mesne conveyance, cannot be contradicted by oral evidence.

2d. That the grantee, under such mesne conveyance, claiming under the same exclusively, must be limited, in every respect, by the terms of the deed creating that claim.

3d. That such grantee must locate his title according to the description of the lines made out in the deed giving birth to such title, and not according to oral proof of other lines inconsistent therewith.

4th. That as a man cannot obtain title to land by oral proof, that the lines bounding the same are his, without a deed a fortiori, he cannot obtain title by oral proof of lines, inconsistent with the deed under which he claims them.

Sth. That a verdict and judgment for lines from letter to letter, without describing on what these letters are — whether in a plat, report, or any thing else — and when these letters could not be found in the woods by the sheriff, are variant from the declaration and issue, insensible, uncertain and void.

6th. That the term having expired(1) since the judgment of the court below, so much of the judgment as goes for the term yet to come cannot be affirmed so as to justify a new judgment in the District Court, in conformity with the certificate of such affirmance. (a)

Edmund J. Dee and Call, for the appellee, relied on the opinion of Judge Pendleton in Shaw v. Clements,(b) and the cases of Herbert v. Wise,(c) in this court, and Taylor’s Rep. 117, (d) as conclusive authority to shew that the evidence, which was admitted by the District Court, was proper and competent in this case : that the plat referred to in the verdict of the Jury was expressly made a part of the record, by the appellant, in her own bill of exceptions ; and that it not only precluded her from making any objection to it, but furnished sufficient information to the sheriff to enable him to give possession to the plaintiff, who must always take it, at his own peril.

Wednesday, November 17. By the whole Court, (absent Judge Fleming,) the judgment of the District Court was affirmed.

*91JUDGES PRESENT.

*Lyons*and *Roane,*

of the Supreme Court of Appeals. *White, Stuart*and *Holmes,*of the General Court.

(1)

 As to amending-the term Zin ejectment, see 4 Burr. 2447; Doe v. Pilkington, 2 W. Black. Rep. 940; Roe, ex dem. Lee v. Ellis, Cowp. 341; Vicars v. Haydon.

(a)

 2 Bac. Abr. Gwil. ed. 433. tit. Ejectment, let. (G.) Skin. 161, Sedgwick v. Gofton.

(b)

1 Call, 429.

(c)

3 Call, 239.

(d)

 North Carolina.