Daniel Boardman and Others, Plaintiffs In Error v. the Lessees of Reed and Ford Call and Others, Defendants In Error

• Decision Date: 01 January 1832
• Citation: 6 Pet. 328,31 U.S. 328,8 L.Ed. 415
• Parties: DANIEL BOARDMAN AND OTHERS, PLAINTIFFS IN ERROR v. THE LESSEES OF REED AND FORD, M'CALL AND OTHERS, DEFENDANTS IN ERROR
• Court: U.S. Supreme Court

31 U.S. 328

6 Pet. 328

8 L.Ed. 415

DANIEL BOARDMAN AND OTHERS, PLAINTIFFS IN ERROR v. THE LESSEES OF REED AND FORD, M'CALL AND OTHERS,

DEFENDANTS IN ERROR.

January Term, 1832

ERROR to the district court of the United States, for the western district of Virginia.

This was an ejectment brought in the district court of the United States for the western district of Virginia, by the defendants in error, against the plaintiffs in error, for the recovery of eight thousand acres of land in the now county of Lewis, within the said district. The premises in question, are parcel of a large connexion of surveys made together, for Reed and Ford, for Thomas Laidley and John Young, and others—some in the name of one, and some in the names of others of the owners. The whole connexion of surveys is represented by the connected diagram made out and reported by the surveyor of Harrison county, pursuant to an order made in the cause, and appearing in the record. On that diagram, the premises in question are particularly represented.

The plaintiffs below counted on a number of separate demises from the defendants in error; all of which were stated on the record as having been made by citizens of Pennsylvania, on the 1st of January 1820.

On the trial, the defendants below tendered the following bill of exceptions:

Upon the trial of this cause, a draft and report returned by a surveyor in obedience to an order of survey made in this cause, was given in evidence to the jury, which draft and report are in the words following, viz. (setting out the same). The plaintiff, in order to show the title of the lessors to the land in controversy, represented by the red lines on said draft, gave in evidence the patent under which they claim, in these words, viz. (setting out the same). This patent is dated the 9th of May 1786. It was issued to Messrs 'Reed and Ford,' and describes the lands thus: i. e. 'a certain tract or parcel of land containing eight thousand acres, by survey bearing date the 23d day of December 1784, lying and being in the county of Monongalia, near a large branch of French creek adjoining lands of George Jackson on the south side, and bounded as follows, to wit: beginning at a maple, and running thence S. 10 E. one thousand poles to a poplar; S. 80 W. one thousand two hundred and eighty poles to a W. oak; No. 10 E. one thousand poles to two white oaks; N. 80 S. one thousand two hundred and eighty poles to the beginning.' The bill of exceptions then states that the plaintiffs, for the purpose of showing the identity of the land in controversy with the land granted by said patent, gave in evidence a copy of the plat and certificate of survey on which the said patent is founded, and the plats and certificates of survey of the various other tracts represented on said draft. After the plat and certificates had been given in evidence, the copies of the entries on which the said surveys were founded, were also given in evidence.

It appeared from the parol evidence introduced in order to identify the land in controversy, that the same, at the date of the patent under which the lessors claim, and at the date of the said plat and certificate of survey on which the said patent is founded, was situate in the county of Harrison, and not in the county of Monongalia, as stated in the patent and certificate of survey, but that the said land, at the date of the entry on which the survey was founded, was in the county of Monongalia, and became part of the county of Harrison by virtue of the act of assembly establishing the county of Harrison. The act of assembly is dated 8th May 1784, and took effect the 20th of July of the same year.

The bill of exceptions further states, that evidence was relied on, on the part of the defendants, for the purpose of proving that the various marked lines represented by the said draft and report of the surveyor, and claimed by the plaintiff to be lines of the land in controversy, and of various other tracts designated on the said draft, were not actually run or marked as lines of the land in controversy, and of the other tracts aforesaid; but had been run and marked by Henry Fink, a deputy surveyor of Monongalia, but who then resided in the county of Harrison, with a view of laying off the greater part of the country represented on said draft into surveys of about one thousand acres each; that he was employed and paid for that purpose, by the persons for whom the said plats and certificates of survey were afterwards made; that after said lines had been so marked and run, the said plats and certificates were made out by protraction; not by the said Henry Fink, but by some other person or persons, not authorised by law; that said plats and cretificates of survey were never recorded in the surveyor's office of Monongalia county, nor there filed, but were surreptitiously returned to the register's office and patents obtained thereon. It was contended on the part of the defendants, that the marked lines represented on said draft, as lines of the lands in controversy, were not the lines thereof, and that the evidence in the cause did not justify the jury in regarding them as such in preference to other marked lines represented on said draft. Evidence was given on the part of the plaintiffs, that the marked lines aforesaid were actually run, and marked by said Fink as lines of the said eight thousand acres, and of the various other tracts represented upon said draft; and that plats and certificates of survey were made out by him in conformity with the lines so run and marked, and were by him delivered to the agent of the patentees, who gave them to the principal surveyor to be recorded, who afterwards delivered the same to the patentees, who returned them to the land office, on which plats and certificates, so returned, patents issued, and copies of which are before recited. It was further contended on the part of the defendants, that the land in controversy was not embraced within the calls of the patent under which the lessors claim; that the natural objects, lines and adjacent lands called for in said patent, were not those represented on said draft, in designating thereupon the land in controversy, and that the marked lines represented on said draft as the lines, of the land in controversy, were, in fact, the lines, not of the plat and certificate of survey on which the plaintiffs' patent issued, but of other plats and certificates of survey; and that there are no calls in said patent justifying the locating said patent on the lands in controversy, as contended for by the plaintiffs. For the purpose of identifying the said land in controversy with that granted by the said patent, parol and other evidence was introduced by the plaintiffs, in order to establish several marked trees as corners of other tracts represented on said draft—the boundaries of which tracts, it was contended, tended to establish the identity of the lands in controversy, with that granted by said patent. For the purpose of showing that one of said marked trees was not a corner of one of said tracts; that is to say, was not the corner on the said draft represented by the letter A, as a corner of John Young's four thousand acres: the counsel of the defendants offered to introduce a witness to prove, that on the trial of a former action of ejectment, brought by the present lessors of the plaintiff against some of the present defendants, to recover the lands now in controversy, a witness, who is since dead, swore that an ancient marked corner tree was found by him at said point A, of a different kind of timber form that called for in Young's patent: but the evidence aforesaid was rejected by the court as inadmissible.

After the evidence had been closed, and the cause had been argued before the jury, the plaintiffs' counsel moved the court to give the following instructions to the jury, to wit: that the grant aforesaid was a complete appropriation of the land therein described, and vested in the patentee the title; and that any defects in the preliminary steps by which it was acquired, were cured by the emanation of the said patent. The said counsel further moved the court to instruct the jury, that the said grant is a title from its date, and is conclusive against all the world, except those deriving title under a previous grant; and further, that it does not affect the validity of the patent, if it should appear that the entry on which the plaintiffs' survey was made, contained other or different lands from that actually surveyed.

After the above instructions had been moved for by the plaintiffs' counsel, the counsel for the defendants moved the court to give to the jury the following instructions, to wit:

1. The name of the county being mentioned in the plaintiffs' patent, as that in which the lands thereby granted were situated, the plaintiff is not at liberty to prove by parol that the land was, in fact, in a different county.

2. As the patent states the lands to lie in the county of Monongalia, the patentees and those claiming title under them, can only recover lands in that county, and cannot, by force of the other terms of description contained in the patent, recover lands lying in the county of Harrison at the date of the patent.

3. It appearing from the plat and certificate of survey on which the patent is founded, that the survey thereby evidenced was made in the county of Monongalia, and it appearing, from the evidence introduced on the part of the plaintiffs to identify the said land, that it was situated, at the time of the survey, in the county of Harrison; the patent is void because the survey was made without lawful authority.

4. If various marked lines are found corresponding with the same calls in the patent, the mere coincidence of any one of those marked lines with the calls of the patent, does not establish that line as one of the lines called for in the patent.

5. If there are no calls in the patent,...