#### JOHN HOUGH *vs.*CHARLOTTE D. MARTIN et al.

The construction of devises of legal interests in land is a legal question, and belongs to the tribunals of the law, and not to those of equity; and the obscurity of the will furnishes no sufficient reason for apply- . ing to equity; for, if the obscurity be not so great as to render the disposition altogether unintelligible, the devise will be valid at law, so far as it can be understood; and if it be so vague and uncertain as not to amount to a designation of any corpus, it necessarily follows that no court can help it, but that it must be ineffectual.

A Court of Equity will not entertain a bill to settle boundaries, except incases in which the boundaries were once certain, and were rendered uncertain by the default of the defendant, or those under whom he claimed; and where there was either an agreement that the land of tho several parties should be distinguished; or some relation between the parties, which made it the duty of one of them to preserve the landmarks, and therefore the boundaries became confused, by the neglect or fraud of the party charged with that duty; as a tenant.

It is essential to a bill to stay waste, that a good, and not a doubtful title to the place wasted, or in which the waste is apprehended, should be shewn. Equity will not interfere for that purpose, where, by possibility, the plaintiff’s claim, now confessedly uncertain, may turn out upon evidence hereafter to be discovered, to cover a part of the .land in which it is said the waste is contemplated.

In a bill for the discovery and production of deeds, it is absolutely necessary to charge that the deeds have come to, or are in, the hands of the defendants. It is not sufficient to state that a certain person had some deeds in his hands without describing them, and that he died and made some of the 'defendants his executors, and others his devi-sees, without any allegation thatany deeds for the land claimed by the plaintiff, or material to him in the controversy, have come into the . custody, or under the control of the defendants.

The bill was filed in September, 1838, and charged that James Hough, a brother of the plaintiff, died some time in the year 1821, having previously made and published his will, duly executed to pass real estate, wherein he devised as follows:

“ I give to James Martin the tract of land of two hundred acres I now live on, including other tracts and parts of tracts within the bounds here laid down, beginning at a post oak, Thomas Smith’s corner, on the upper side of Cedar Creek, including a tract of two hundred and fifty acres I bought of Janies Garris — also, a fifty acre tract I bought of Henry Nor-*380mat* — a four acre tract I bought of Thomas Mawdthen, be-§iu.ning at ^ie corner of the Garris tract and Norman tract, not far from the old field, running a direct course to the up-Per con1er Belyen tract, in the old field, a stake — then including the Belyen tract of one hundred acres — then beginning at a Turkey oak, William Kirby’s corner, on the upper side of Cedar Creek, then crossing said creek, with his line, to a. corner — then with the courses of *the different*tracts to Thomas Smith’s land — said Martin’s, when it joins them with Thomas Smith’s lines to the beginning post oak — as the patterns and deeds will shew, to him forever. I give to Hezekiah Hough, Jr. two hundred acres of land, whereon John Ingram now lives, after the time of his lease, being five years from the 1st of January, 1821. I give to Moody Hough one hundred acres of land, whereon the widow Nicolin now lives. I *give to*Hezekiah *Ross two hundred acres of*land, including the Brown plantation, beginning at a corner of the 'Parker tract, next tó John Briley’s. I give the remaining part of my land, not given away, to John Hough.”

The bill then alleged that the *description in the*said will of-the several tracts of land devised to the said James Martin, Moody Hough and Hezekiah Boss, were so obscure that the plaintiff was unable to fix upon the residue, which of right under the will belonged to him; and charged that James Martin, taking advantage of the said difficulty, had taken possession, several years before, of a portion of the land which the plaintiff confidently believed was not devised to the said Martin, nor otherwise disposed of by the said will, and consequently, by the terms thereof, belonged to the plaintiff; that the plaintiff accordingly instituted an action of ejectment against the said Martin, in the Superior Court of Law for Anson county, but failed therein, by reason of his inability to locate his claim under the said will; and that the said difficulty still continued, and was likely to continue, without the aid of the Court of Equity. The bill then charged that the plaintiff frequently applied to James Martin, who qualified as the sole executor of the testator, to admeasure and lay off to him, his, the plaintiff’s portion of the land, under the devise in his brother’s will, and' to surrender to him the title *381deeds therefor; which, the plaintiff averred, were all in the possession of the said Martin; with all which reasonable quests the said Martin altogether refused and neglected to comply. The bill charged further, that some time in the year 1836, the said James Martin died, leaving a will properly executed, to pass real estate, of which he appointed Thomas Waddill and Charlotte D. Martin, his executor and executrix, who duly qualified thereto, and wherein he devised the lands given him by the will of James Hough, to his widow, Charlotte D. Martin, and his children; and that since the death of the said James Martin, his said devisees had taken possession of, and trespassed upon, lands which the.plaintiff well believed were his own, under the will of his said brother, James Hough; that the said Moody Hough and Hezekiah Ross, both before and since the death of the said James Martin, had done likewise; and that all the said parties still continued and threatened so to do; and the plaintiff alleged, that should he ultimately be placed by this Court in a situation to assert his rights at law, the said lands would be so cut down, worn out, and otherwise destroyed, as to be of little or no value, unless something was done to arrest the said parties “ in their destructive career.” That the said Hezekiah Ross had sold his interest to one John Briley, who was also committing depredations upon lands which the plaintiff believed constituted a portion of the lands devised to him by his said brother; and that the plaintiff had frequently applied to the said parties in a friendly way, and requested them to respect his rights, and come to some understanding and agreement, by which the property of each might be fixed and established by proper metes and boundaries; but that these reasonable requests of the plaintiff, the said parties had entirely disregarded, pretending at some times that their claims covered all, or nearly all, the lands owned by the said testator, James Hough; and at others, that at law the plaintiff’s claim was altogether barred; which pretences the plaintiff alleged to be untrue, and that he was entitled to a large quantity of valuable land,. under the will of his said brother; but that he could not establish his metes and bounds without the assistance of this Court. The bill then prayed for process against the execu*382tors and devisees'of the said James Martin, Moody Hough an(^ Briley, that they should answer all the allegations of the said bill, and particularly “ that they might set forth an¿ discover what land they claimed under the said will of the plaintiff’s brother; that they might be enjoined from cutting- down or otherwise wasting any of the timber, houses or land devised by the will of James Hough, until the land severally devised to each claimant was laid off and ascertained; and that the rights of the plaintiff might be settled and ascertained, and his land admeasured and laid off to him byr metes and bounds; and that the title deeds to the said land might be all set forth and produced, and such as the plaintiff was justly entitled to, handed over and delivered to him;” and for general relief.

To this bill the defendants demurred; and the cause coming on to be heard at Anson, On the last circuit, before his honor Judge Toobi.er, upon the bill and the demurrer thereto, his Honor sustained the demurrer, and the plaintiff appealed.

No counsel appeared for the plaintiff in this Court.

*Winston*for the defendants.

Ruffin, Chief Justice.

No counsel has appeared before us for the plaintiff; and we cannot, therefore, be sure that we correctly apprehend the ground or grounds on which relief was intended to be claimed in the bill. As far, however, as we have unaided been able to collect the grounds brought forward in the bill and exhibits, we are of opinion that the bill cannot be supported, but was properly dismissed.

From the general scope of the bill, the principal object as stated particularly in the prayer, seems to be, to have the land devised to the plaintiff, admeasured and laid off to him by metes and bounds; and as subsidiary to that relief, that the land devised-to the other devisees respectively, be laid off and ascertained, and to those ends, that the defendants may produce the title deeds of the testator’s lands; and in the mean while, that the several defendants may be enjoined from cutting timber, or committing any other waste upon any of the lands devised in the will.

*383It is to be remarked, in the first place, that the Courtis not called to act between these parties on the idea of decreeing partition of lands given or held jointly or in common. There is nothing of that kind in the will or bill. The devises are distinct to each devisee, and of distinct parcels; and, therefore, there is no partition to be made. '

But. although the bill admits that the devises are not of shares in a known subject, but are devises of different tracts of land to sundry persons in severalty, yet it states, as the grievance to the plaintiff, that the descriptions in the will of the several tracts given to Martin and the others are so obscure, that he cannot identity those tracts; and, therefore, cannot know what land is given to himself, the plaintiff. The object, then, is to obtain.that knowledge by the aid of this Court, as the plaintiff says he has failed in an attempt to identify his land upon the trial of an ejectment.

We are at a loss to conjecture what means a Court of Equity has, of elucidating the point which creates the difficulty to the plaintiff, more than a Court of Law possesses; or of obviating the consequences of that difficulty under which the plaintiff is suffering, as he says. The construction of devises of legal interests in land, is a legal question, and belongs to the tribunals of the law, and not to those of equity. The vagueness or obscurity from any other cause found in the terms in which the gift is expressed, cannot change the jurisdiction; for this Court has no peculiar principle of construction, in such cases, but interprets the will as a Court of Law would, and both courts use the same means of identifying the thing given, namely: by resorting to documents, the testimony of witnesses, and surveys! The-obscurity of the will, therefore, furnishes no sufficient reason for applying to equity; for if the obscurity be not so great as to render the disposition altogether unintelligible, it will be valid at law, as far as it can be understood; - and if it sound to folly, so far as not- to amount to a designation of any *corpus,*it necessarily follows that no court can help it, but that it must be ineffectual. For this reason, the bill cannot assume the aspect of one for ascertaining confused boundaries; for although the Court of Equity has exercised the jurisdic*384tion of settling boundaries of legal estates, yet it has been cautiously exercised; and in only a few instances, and in . *3*. , ’ .. *3 .*, none m which the boundaries were not once certain, and ]ia(j j3een rendered uncertainly the default of the defendant, or those under whom he claimed. In the case before us, the gravamen is not that a single land mark has been altered, or been permitted to perish by the act or neglect of the other parties; but that the testator was inexplicit and obscure in the language of his will.

If, however, that objection did not exist, the present case is not within the principles upon which the jurisdiction of ascertaining boundaries has hitherto proceeded. In all the cases, there was either an agreement that the land of the several parties should be distinguished, as in *Norris*v. *Le Nevo.*3 Atk. 31; or some relation between the parties, which made it the duty of one of them to preserve the land marks, and therefore the boundaries became confused by the neglect or fraud of the party charged with that duty; as a tenant.— *The Duke of Leeds*v. *the Earl of Strafford,*4 Ves. 180. *Attorney General*v. Fullerton, 2 Ves. & Bea. 264. *Willis*v. *Parkinson,*1 Swanst. 9. It is not enough that the boundary is controverted, or that it has become confused, although it was once plain; but the confusion must have arisen from the misconduct of the defendant, who is therefore equitably obliged to aid in its re establishment. *Miller*v. *Warmington,*1 Jac. & Walk. 492. Between independent proprietors, equity does not interpose, where there is no a-greemeut, fraud or neglect, and require either of them, against his will, to have his legal rights determined in any but the established legal method. *Atkins*v. *Hatton,*2 Anstr. 386— *Speer*v. *Crowter,*2 Mer. 417.

Nor is it possible to uphold the bill as one for an injunction to slay waste, or for a discovery. As a bill of the former kind, it is radically defective, in not shewing a title to the place wasted, or in which waste is apprehended. The Court could not, therefore, act at all, without making the injunction as broad as the prayer of the bill on this head, and restraining the defendants from the ordinary aets of ownership in any of the devised lands, as well those given to the defend*385ants as those claimed by the plaintiff, under the residuary disposition to him. The Court must not deprive the defend.' ants of the use of their own property, because, by possibility, the plaintiff’s claim, now confessedly uncertain, may turn out, upon evidence hereafter to be discovered, to cover apart of the land in which it is said the waste is contemplated. That would render the preventive justice of the Court, the instrument .of positive oppression on the owner of probably the whole, and certainly a part, of the estate in his possession. *Davies*v. *Leo,*6 Ves. 787. The bill ought to state a good title in the plaintiff to the specific land, else he cannot have an injunction. A doubtful-title will not be sufficient. *Jones*v. *Jones,*3 Meriv. *173*— Storm v. *Mann,*4 John. C. C. *21.*

As to the discovery of the deeds and their production, it is sufficient, without noticing other things, to say, that the bill does not charge any deeds to have come to the hands of these defendants. It only alleges that James Martin, the executor of the testator, Hough, had some deeds in his possession, though no description of them is given; and then that Martin died and made some of the defendants his executors, and devised to other of the defendants the lands given to him by the first testator. But, there is no allegation that any deeds for the land claimed by the plaintiff, or material to him in this controversy, have come into the custody or under the control of the defendants.

Per Curiam. Decree affirmed.