#### DEN ON DEMISE OF W. P. WAUGH *vs.*W. RICHARDSON.

A grant cannot bs avoided upon evidence in ejectment.

The granting part of a deed is not avoided by a defect in the exception ; but the exception itself becomes ineffectual thereby and the grant remains in force.

The cases of *Reynolds*v. Flinn, 1 Hay. 116, and *Lewis*v. *Porter,*1 Hay. 126, cited and approved.

Appeal from the Superior Court of Law of Ashe County, at the Spring Term, 1846, his Honor Judge Caldwell presiding.

The plaintiff claimed the premises under a grant made to Jesse Ray, in 1839, for three thousand acres of land, as a bounty for erecting iron works, under the act of 1788. The patent describes the land by buts and bounds, which upon calculation, includes 8699 acres; and after that description, then follow these words, “ including within its bounds, 5699 acres of land, which is excepted in this grant.” The survey annexed to the grant, contains the boundries set out in the grant and designates the quantity of the land as 3000 acres, but does not except any part or quantity of the land within, the survey. But the *471plat attached to the survey has laid down, within the exterior boundaries of the whole tract, a number of smaller plats, having no description annexed to them, except that, within some of them, are written *• 100 acres, 175 acres,” and so on.

The defendant alleged that the grant was void, and offered to prove by witnesses that the requisites of the statute had not been complied with in various particulars in entering the land and having it viewed and surveyed. But the court refused to receive the evidence. The defendant then offered witnesses to prove what land it was intended to except, and that such exception included 50 acres, which one Campbell had entered before .Ray’s sur. vey, which was granted to the defendant in 1840. But the Court rejected this testimony also.

The defendant then moved the Court to instruct the jury, that it was incumbent on the plaintiff to shew with certainty the land excepted, and that without doing- so, he could not recover. But the court refused to give such instructions, and informed the jury that the plaintiff was entitled to recover, as the defendant had not shown an elder grant for the land in his possession.

Yerdict and jndgment for the plaintiff and the defendant appealed.

*Clarke,*for the plaintiff.

*H. C. Jones,*for the defendant,

Ruffin, C. J.

There have been a great many cases foL lowing those of *Reynolds*v. *Flinn,*1. Hay. 106, and *Lewis*v. *Porker,*Ibid. 125, and firmly settling the principle there laid down, that a grant cannot be avoided upon evidence in ejectment, notwithstanding the strong and general terms in which the act of 1799 declares them void, if obtained contrary to law. The court was right, therefore, in rejecting the evidence of a violation of the provisions oí the act of ’88, since it could not legally impeach *472the grant. For the same reason the grant could not be affected by excess of quantity above the 3000 acres, allowed as a bounty by the act. The case therefore depends upon the construction of the grant. Now that must be made upon its own terms and cannot be altered by evidence *aliunde*of an intention to except particular land, which is in truth not excepted in the deed. The evidence offered for that purpose was, consequently, also properly rejected. Then, what is the legal construction of the grant upon its face ? There is no doubt that, but for the exception, it passes all the land covered by *the*boundaries according to the calls, courses, and distances, notwithstanding the quantity so far exceeds that mentioned in it; for the quantity is no part of the description and cannot control a definite description by metes and bounds, which is so well settled, as to have become an elementary rule of construction. It follows thence, that the question turns exclusively upon the operation of the exception; which is of “ 5699 acres, included within the bounds,” without specifying any particular portion as constituting the quantity reserved, or any part of it. We thinlc the exception, thus vague and uncertain, must be inoperative, and cannot restrain the general terms of the grant of the land according to the description in the patent. A grant of *“569.9*acres, included in a *county, or*included within certain boundaries covering 100,00ft acres,” would be void,for the uncertainty of the subject of the grant. So, when the grant clearly identifies the thing granted, it must pass all of it that is not properly and sufficiently excepted;. The granting part of a deed is not avoided by a defect in the exception, but the exception itself becomes ineffectual thereby, and the grant remains in force. Such, we hold, to be the law of this case according to the terms of the patent. There is nothing in the plat and survey annexed to it, which can aid the construction, supposing they could have the effect in any case of extending,, the sense of plain words in th® body *473of the grant; for, in fact, the grant goes beyond the description in the survey, in introducing an exception, at all; and the whole figure in the plat, formed by the lines called for in the survey, is occupied by smaller diagrams, in some of which there are numbers of acres set down, but there is no clew given thereinto the enquiry, which diagrams represent the part or parts excepted. These circumstances, together with the disregard of the enactments regulating the proceedings on entries for iron works, alleged by the defendant, may furnish sufficient grounds for impeaching the grant in another proceeding.

Rut in this action the law is, that the grant is to be received as valid ; and we think it is to be read, as if there were no exception in it, since the exception, as expressed is so vague as not to identify the part excepted and is therefore ineffectual.

PeR Curiam. Judgment affirmed.