#### Hopkins *vs.*Paxton.

[Mr. Owsley for Plaintiff: Mr. Trimble for Defendant.]

.jSjEOÍMENTt

From the Circuit Court for Nicholas Counte.

*April*9.

Wiese terms aro used in a deed— “thence north, ío a large black ash and sugar tree in P’s line; thence, with P’s line, to the beginning. ” *The trees,*however, are not in P’s line, and a line from them to the beginning, leaves a small slip of ground, between the tractsold and P’s tract:- *Held,*that this deed does not pass that slip.

A tract 'of land is sold, but the deed, in consequence of a mistake in the description, does not include it all; and a stranger takes possession of the omitted part: notwithstanding his adverse possession, a new deed made, *hona fide,*to correct the mistake, and convey the omitted pait, according to the contract as originally made, is hotchampertous.

Whether there Was in fact any fetich mistake, to correct which *37the new deed was made, or any adverse possession , are ques tions to be decided by a jury, not by the judge.

*36Chief Justice Robertson

delivered the Opinion of the Court.

Samson Archer—having title—sold and conveyed to Moses Hawkins, a parcel of land supposed to contain about nine acres, and described by designated courses, distances and corners^-among which are the following, that is, *“thence*north, 73° *East,*50 poles, *to a large black*“ *ash and sugar tree on Paxton’s*line— *thence, idth Paxton’s*“ line, South, 17° *East*54 2-10 *poles, to the beginning.”*

Some time after the date of that deed, Hopkins, having, in the mean time, discovered that the ash and sugar tree corners were not on Paxton’s line, ahd that, between Paxton’s line and a line run, as described in the deed, from those trees to the beginning, there was about one acre of land—disclosed those facts to Archer, and requested him to correct, by another conveyance, what he represented as a mistake in the first deed; and thereupon, for the sum of five dollars, Archer conveyed to Hopkins the interjacent acre of land.

Between the dates of those two deeds, Paxton had enclosed the land between the two lines, and was in the actual and adverse possession of it at the date of the last conveyance!

After these facts had been proved, and after it had been also proved, by the testimony of Archer himself, that, although he had not, by the first deed, “conveyed” to Hopkins the acre in contest, yet he had intended to do so, and, supposing that the ash and sugar tree, were on Paxton’s line, had not doubted, until after the execution of that deed-, that he had done so, and that upon a representation ‘of the foregoing facts, he had, for five dollars, made the last deed—the circuit judge, being of the opinion, that this last conveyance was champertous and void. *37excluded it from the jury, and being also of the opinion, that the first deed does not include the land in contest, instructed the jury to find as in case of a non-suit, a verdict and judgment, having been accordingly rendered against Hopkins, he prosecutes this writ of error.

We are satisfied that the first deed does not, according to the true legal-effect, include the land claimed in this suit. But whether the last conveyance was void or not, depends on facts which the jury had a right to consider.

If, in fact, Archer had *sold*to Hopkins the slip of land (included in the last deed alone,) and had *intended*to convey it by the first deed, the last conveyance was not a violation of the law against champerty. This point was, virtually so decided by this Court, in the case of *Saund*ers’ *Heirs*vs. Groves, (2 *J. J. Mar.*408.) In that case, the Court said—“The object of the act was to prevent *“champerty:*It was not to prevent the fulfilment of preexisting *bona fide*contracts, nor the enforcement of “ equitable obligations.—-The act was framed to frustrate “ the *mischievous*schemes of the *litigious*and speculating, “ by proscribing contracts for purchasing pretended “ claims to land. It operates on the *motives*of men. It “ is addressed to those who are about to *buy*or *sell*for the “ *mere purpose of gain.*The parties to this deed have “neither bought nor sold; the one has only restored to “ the other that which he was under a clear, moral and “ equitable obligation to return to him.’V-“To apply “ the doctrine or the penalties ofehamparty to such a caso “would pervert its aim, from the prevention of mischief, “to the punishment of just and meritorious acts, which “ all laws should protect and encourage.”

If then there was such mistake in the first deed as Hopkins alleges and has tried to prove, the last deed for correcting that mistake and *effectuating the intentions*of the parties in a *-bona fide*contract of sale, made when there was no adverse possession, was not champertoüs, but valid and legal. Whether there were such a mistake and such an understanding when the first deed was made, and whether, at that time also, there was an adverse possession, are *facts*which, whatever may be the *38true effect of the evidence, the jury, and not the Court, had the right to decide.

Without intending to intimate any opinion as to the true effect of the testimony, we arc, therefore, of the opinion that the circuit judge erred in excluding the last deed, and in deciding peremptorily, as a matter of law, that it was champprtous and void. He ought only to. have instructed the jury as to the law on a hypothetical-state of fact, and have left them free to ascertain the. fact.

Wherefore, the judgment is reversed, and the causé remanded, for anew trial.