Budd v. Brooke

3 Gill 198 | Md. | 1845

Dorsey, J.,

delivered the opinion of this court.

The court below was right in rejecting the appellant’s prayer in the first bill of exceptions. Instead of its specifying the parts of the testimony, to which the objection was intended to apply, the court was called upon to reject it in mass. If any pait of it, therefore, was admissible, for the purpose for which it was offered, the court, in overruling the prayer, committed no error. Where an entire prayer, made to the court, is good in part, and bad in part, that is, which the court ought to grant in part, and in like manner refuse, had the subject matter been properly divided, and a distinct prayer made on each subdivision, the court is not bound to assume, what appropriately belongs to counsel, the duty of analyzing the subject matter of the prayer, and admitting that which ought to be granted, and rejecting that which ought not; but the court may content itself in granting or rejecting the prayer, according to its merits, as presented in its entirety. There is no error, therefore, in the court’s opinion complained of in the first bill of exceptions; some of the evidence, objected to, being undeniably admissible. See Elliot et al. vs. Peirsol et al., 1 Peters, 338, and Moore vs. The Bank of Metropolis, 13 Peters, 310.

The appellees prayer, in the second bill of exceptions, which was granted by the court, was “to instruct the jury, that upon the true construction of the patent of Allansons Folly, its first line must run from the true beginning thereof, as found by the jury, so as to bind on Chickamuxon creek, to the place where the jury shall find the second boundary of Allansons Folly stood; and if the jury shall find the said first and second boundaries of Allansons Folly, or either of them, do not stand on Chickamuxon creek, then it is lawful to supply a course from the point of said creek nearest to said boundaries, or either of them, respectively.” If there are binding expressions in the patent of Allansons Folly, which bind its first line on Chiclea_ muxon creek, the granting of that part of the prayer which relates to the first boundary,'would follow as a matter of course, according to the settled principles of locations, in actions of ejectment in Maryland, as established by the decisions of its highest judicial tribunals. But not so as to the second boundary. Instead of the line, supplied to reach that boundary, being run from the point on the creek nearest to it, the line must be run from the point on the creek where the two hundred perches, (the distance expressed in the patent,) expended on the meanders of the creek, terminate. The line from that point to the second boundary, is the line to be supplied to connect that boundary with the binding call of the first line of Allansons Folly, with the creek. In determining on the correctness of the remaining portion of the court’s decision in this bill of exceptions, all we have to do is to ascertain, from an inspection of the patent of Allansons Folly, whether, from the true construction of the calls and expressions in the grant, its first line does imperatively bind on the creek. Allansons Folly is described in the patent as tying “on the south side of a creek called Chincomuxon creek, beginning at a marked white oak, standing on the west side of a little creek called St. Katharine's creek, and running east north east up Chincomuxon, for breadth the length of two hundred perches toa marked oak.” Had no other more binding expression, in relation to this line, been used in the patent, the line must be run in a straight direction from boundary to boundary: the words, “running up a creek,” not being a binding call, but merely indicating the general direction of the line referred to. This, however, is not the only binding expression in the patent, in relation to this line, as one of the bounds of the entire tract, which has four sides to it. The patent, after stating how the tract of land is “bounded” on the east, how it is “bounded” on the south, and how it is “bounded” on the west, states, that it is bounded on the north, (where its first line runs,) with Chincomuxon. In arriving at the true construction of this patent, it is a matter of no moment that this binding expression is used after all the other lines and bounds of the tract of land had been given. Appearing where it does, it as much controls the location of the first line as if it had immediately preceded it in the patent. By adopting this construction, we reconcile all its parts, and gratify the full import and meaning of every word in the patent, except the course of the line, which in all cases is held to interpose no obstacle to the gratification of a conflicting, binding call; but disregard this binding call, and there are virtually expunged from the patent, the words, “on the north, with Chincomuxon, ’ ’ words so emphatically inserted to declare, and establish the northern bounds of the land granted. Thus reversing one of the most just and sound principles of the law, that deeds are to be construed most strongly against the grantor, for the benefit of the grantee. And this reversal, will be made after this rule of construction has been adopted and proclaimed, in, perhaps every land trial in the State, where its influence could have been felt. Nothing but the error of the county court, in fixing the place of the beginning of the supplied line to reach the second boundary, prevents our giving to its granting the prayer of the appellees in this bill of exceptions, our entire concurrence.

Were the county court right in oven'uling, as it did, the appellants objection to the location of the first line of Wicksall, as terminating at the extremity of the point at the mouth of the creek, is the only question for our consideration under the third bill of exceptions?

The boundary being lost, and no evidence being adduced of the place where it stood, the appellees, disregarding the course and distance, located the line as above mentioned, upon the ground, as we presume, that although no proof was offered as to the actual locality of the tree itself, yet that the patent, by binding the line on the creek, so identified the spot where it stood, that the course and distance are to be disregarded; and that by proving to what point the call referred, die termination of the line was established as at the extremity of the point. The first line of Wicksall calls to run southwest, down the creek, for breadth die length of one hundred perches, to a marked oak standing upon a point at the mouth of the said creek, and this line is made to bind on the creek, by language almost identical with that, which we have said binds the first line of AUansons .Folly on the creek. JBut, for this binding call, under the proofs in this cause, we think that the location of the first line of Wicksall, in disregard of its course and distance, would be manifestly erroneous. Where a bounded tree, called for as standing at the end of a line, cannot be found, nor the particular spot where it stood, be identified, to run the line by its course and distance, is the best means left of ascertaining its true location and terminus. The fact that the boundary called for is represented by the patent as standing upon a point at the mouth of a creek, is, in the event of its loss, too vague and indefinite to control the positive expressions of the grant, as to course and distance. By pursuing the course and distance, we have the fixed and specified means of obtaining the identity of the spot where the line is to terminate. To reject the course and distance, is to determine, that the particular spot, on which the boundary stood, is ascertained with reasonable certainty. The statement in the patent, that it stood on a point at the mouth of a creek, is not, of itself, sufficient evidence of its identical locality. Such a point may be ten feet long, or it may be a mile long, and it may be subject to the same uncertainty as to its breadth. There is no semblance of analogy between such points and mathematical points. The expression, standing on a point at the mouth of a creek, identifies no particular spot as that whereon the tree called for stood. The expression in the grant is equally gratified, whether you locate the tree on the north end. or the south end, the east • side, or the west side of the point. The call for a bounded tree, standing on a point at the mouth of a creek, where the tree, and spot where it stood, are lost, and are both incapable of ascertainment with a reasonable degree of certainty, ascertains with less certainty than the course and distance, the termination ■ of the line, and therefore, cannot control them; certainty being the controlling object in all locations. But the peremptory, binding call for the creek, in the patent of Wicksall, changes, in this case, the general rule, that a line calling for a lost boundary must be run by its course and distance. If the tree had not been lost, there would have been two imperative calls, both of which, if practicable, must have been gratified. The line must have terminated at the tree, and it must have been made to bind on the creek, until its distance (that is number of perches,) was exhausted at some spot on the margin of that projection of land at the mouth of the creek, called the point. And if the tree called for had stood at some distance from that spot, a line, not called for in the patent, must be run from it to such boundary. See Dorsey’s Ejectment, 69 and 70, and the diagram in the same book, 50. But if, as here, the bounded tree be lost, and the spot where it stood incapable of ascertainment with a reasonable degree of certainty, there can be no such interpolated line, and the line in question must terminate at the spot above mentioned. There is nothing in the calls in the patent of Wicksall, which terminates its first line at the extreme verge of Moss’ Point. In perfect consistence with those calls, it might have terminated at any other place upon the margin of that point. We, therefore, think the court below erred in assuming, as a matter of law, and so instructing the jury, that the termination of the first line of Wicksall was at the north western extremity of Moss’ Point.

In overruling the appellant’s objection to the testimony of the appellees in the fourth bill of exceptions, we think the county court erred, not only for the reasons we have stated, as to the second bill of exceptions, but upon another ground:— the testimony offered, had no tendency to prove,where the marked oak stood, and, therefore, should have been rejected on account of its immateriality.

There is error in the court’s opinion, overruling the appellant’s objection to the testimony offered in the fifth bill of exceptions. If for any reason, no matter whether it be for the reason assigned or not, the testimony objected to, be inadmissible for the purpose for which it is offered, it should be rejected by the court. The appellees having proved the beginning of Aspinall's Hope to be “at the point distinguished on the plots, by the words, Moss' Point,'' claimed to run the first line of Aspinall's Hope according to its courses and distances, as in the patent thereof, “with an allowance of thirty degrees of variation to the westward of said patent course, drawn with the usual allowance for variation, from the date of said patent,” so as to bind on the Potomac river; and for the purpose of sustaining said allowance for variation in the first line of ffspinall’s Hope, offered to prove, by James Bratoner, a competent surveyor, who made the plats and executed the surveys in this case, that he could ascertain to mathematical certainty, from the plots in this cause, and the locations made by him, according to his several surveys, the variation required in the patent course of the first line of Wicksall, (from the date of said patent of Wicksall,) so as to bind said first line of Wicksall on Chickamuxon creek, and that the variation required for that purpose, in said first line of Wicksall, over and above the variation usually allowed in similar- cases, is thirty-eight degrees to the westward. To this evidence the defendants objected; but the court overruled the objection, and permitted the evidence to go to the jury. In so doing, we think the county court was clearly in error. The testimony offered, had no connection with, or bearing upon the question, as to what correction ought to be allowed for the variation of the magnetic needle, to ascertain the true original location of lands held by courses and distances. To open the door to such proof, under the circumstances in which it was offered, would unsettle the rights of all land-holders, whose estates are held by courses and distances, and introduce a multiplicity of litigation and confusion in laud titles, of which the foresight of man can form tro estimate. It would unsettle the whole theory of allowance for variation in the surveying of lands, as practised under arid established in Maryland, and substitute in its place, a standard ever changing and utterly uncertain, and which had not the slightest relevancy to the allowance which ought to be made, according to the established principles and experience of ages, upon the subject. The first line of Wicksall, by the terms of its patent, binds on Chiclcamuxon creek, and in running it, therefore, its course is rejected, and the line run in conformity to the imperative call, in the same manner as if its course had not been expressed in the patent. In locating the first line of Wicksall, you do not run it the course expressed in the patent, corrected for variation by such a number of degrees, as will make it conform to the binding call imposed on it; but you reject altogether the course in the patent, and run the line the course which will gratify the call, in the same manner as if no course for the hue were expressed in the patent. You gratify the call, and shape your course by the point of the needle, and the question of variation has nothing to do with such a proceeding. If a due south line, with a binding expression in the patent, which takes it due north, is to be located, the surveyor must run the line due north by the point of the needle, and in such a case, he never dreams that he is doing what, if the testimony objected to be admissible, we assume that he has done, viz: corrected the course in the patent one hundred and eighty degrees, as an allowance for variation. In changing the course to gratify a call, the line is run accordingly, either to the east .orto the west, without regard to the fact, whether, from the date of the original survey to. the time of the location of the line, the variation of the needle has been to the east or to the west, and, consequenfiy, no - such fact could be deduced from it, as that for which such testimony has been offered in the case before us.

Of the opinion of the county court, in the sixth bill of exceptions, we think the appellant has equal cause to complain. The court ought to have rejected the testimony, for the purpose for which it was offered, as well for the reasons assigned in the preceding bill of exceptions, as on account of its immateriality and irrelevancy to the subject matter, which was designed to be deduced from it. It had not the slightest tendency to prove, that an allowance of thirty degrees, over and above the usual allowances, ought to be made, for the purpose of binding on the Potomac river, the first line of AspinalPs Hope. What was the testimony offered in this bill of exceptions, to establish this unnatural and irrational allowance for variation? First, the patent of AspmalPs Hope, which gave not the slightest countenance to such a deduction; and secondly, the oral proofs that the tenants of Walter Brooke, and those claiming under him, had possessed the land lying between the first and second line of AspinalPs Hope and the Potomac river; but that the witness never knew or heard, that the land so possessed was called AspinalPs Hope; on the contrary, that he always heard and understood, that it was called and known as “Nonesuch,” a tract of land located in this cause, as containing the land in question. How this proof had any tendency to establish this extraordinary allowance for variation, we are unable to discover.

The only ground for an objection to the testimony offered in the seventh bill of exceptions, which we can discover, is, that the locations made of the plot offered in evidence, have been so unintelligibly represented on the plots and explanations in this cause, that, it was almost impossible for either the court or jury to say, whether the locations on the plot offered in evidence, were truly located on the plots filed in this cause. And upon no other principle, than its apparently correct location, could it be given in evidence, to support any of the locations made on the plots before us. It is true, that the surveyor has certified, in his explanations returned with the plots, that “the plaintiff locates a plot made out by Theophilus Hanson, in an ejectment suit, wherein the lessee of Waller Brooke was plaintiff, and James Davis was defendant, which said plot is endorsed, Tiled 28rd of October 1789.’ ” “All the locations made on said plots, are transferred or copied on the plots returned in this cause, and are to be taken and considered, to all intents and purposes, the same as original locations in this cause, as well as evidence of the locations made by Walter Brooke, in said ejectment suit; and will also be relied on by the plaintiff, as explanatory of the grounds of said ejectment, the finding of the jury, and (he possession delivered to said Walter Brooke, by judgment of the General Court of Maryland.” But how the lines thus located, are distinguishable from the other locations on the plots; where they commence or terminate; with what calls, or by what courses and distances they are ran, we are left to speculate on the wide ocean of conjecture and uncertainty, without chart or compass to guide us, on our hopeless voyage of discovery. If there be any case in which, on account of an almost infinitude of locations, and a failure of the surveyor to file with the plots returned, the explanations requisite to their comprehension by the court and jury, this court would be justified in reversing the judgment and remanding the case for a new trial,—the present is a fit case for the exercise of such a power.

Had the plots and explanations returned by the surveyor in this cause, identified, as they ought to have done, the lines to sustain the location, of which the plot .offered in evidence was adduced, and it had appeared that they had been truly located, then, would the plot offered in evidence have been clearly admissible. But, in consequence of tire defects of the plots and explanations of the surveyor, it not appearing affirmatively to the court, that the lines in question had been truly located, conformably to their location on the plot from which they were taken, on the objection raised to the plot offered in evidence, we think the court below ought to have rejected it.

In admitting, for the purpose for which it was offered, the testimony of the appellees, objected to by the appellant in her eighth bill of exception, we also impute error to the court below. The plaintiffs below, had not located Wichsall, AspinalPs Hope, and part of Allanson’s Folly, as a body of land, which had acquired the name of Nonesuch, by reputation. On the contrary, their location of Nonesuch, professed to have been made according to its patent; and the location of Nonesuch, as made by the appellant, and offered in evidence by the appellees, is also stated to have been made agreeably to the patent. There being, then, no location of Nonesuch, as a parcel of land which, by reputation, had acquired that name, there could have been no counter-location thereof, and consequently, the evidence offered to prove it, was out of tire issues in the cause.

In what We have said on this bill of exceptions, we are not to be understood as intimating any opinion, that, under the circumstances of this case, (if, indeed, under any circumstances it could be done,) the appellees could recover the lands in controversy, under the name of Nonesuch, as a name acquired by reputation.

Had the county court, in the ninth bill of exceptions, as it did in the first, have contented itself with simply overruling the general objection raised to all the testimony offered, and leaving it, as being no otherwise objected to, to go to the jury, for the reasons assigned by us in the examination of the first bill of exceptions, the course pursued by the county court would have been sustained by this court. But such was not the course pursued by the court below. It did not content itself with overruling the objection made, and permitting the testimony to pass to the jury as otherwise unobjected to, but it proceeded to analyse the proof, and to pronounce its opinion to the jury upon the admissibility of several portions of it, and asserted all the evidence offered, to be admissible, and gave thereon an instruction as to its legal effect and operation. In doing so, the court did not, as in the first bill of exceptions, assume a mere passive attitude by permitting testimony to go to the jury, to which no valid objection had been urged; but its action was positive; it decided, that not only were certain enumerated portions of the testimony competent to go to the jury, but that all of it was admissible before them. If then, any portion of the testimony offered in this bill of exceptions (material to the issues on the trial before the jury,) was incompetent, the judgment of the county court must be reversed. The duty, therefore, to some extent, devolves upon us, of examining the several parts of the evidence submitted to the jrny, to see how far each and every portion of it is admissible. The first part of the testimony, the admissibility of which is sanctioned by the county court, is the copy of the deed from Humphrey S. Aspinall to Elizabeth Swinburne, and the copy of the deed from William, Moss to George Mason, and the copy of George Mason’s will. To render an exemplified copy of a deed, admissible in evidence, to prove title to the land which the deed professes to convey, it must appear to have been executed with all the essential forms required to warrant its enrolment under the laws of this State, In 1684, (the date of the alleged deed from Humphrey S. Aspinall to Elizabeth Sioinburne,) the act of Assembly required that such a deed should be acknowledged before some of the judicial tribunals or public officers, enumerated, and recorded within one year. From the copy before us, it does not appear that this deed had been acknowledged pursuant to the provisions of the act of 1674, ch. 2. The recording of it, therefore, not being authorised by the act of Assembly, gave to it no additional validity, and the record thus made, or the exemplified copy therefrom, is no more evidence of the existence of the deed, than would be a copy of such deed certified by any private individual. This objection to the admissibility of the copy, has been attempted to be obviated by the assertion, that the act of 1674, ch. 2, did not require the recording of the certificate of the acknowledgment of a deed for lands. It is a sufficient answer to this assertion to state, that it is sustained by no judicial sanction in this State. That none of the various acts of Assembly prescribing the mode in which conveyances of land are to be made, direct the certificate of the acknowledgment of a deed to be recorded, except the certificate of the acknowledgment of a feme covert. Yet, from the passage of the act of 1674 to the present day, it has been the uniform custom of all recording officers to record such acknowledgments; and their authentications of such recording, have, in all the judicial tribunals of the State, been received as sufficient evidence of those acknowledgments. Such efficacy could not have been given by courts of justice to such authentications, unless they regarded such recording, as a compliance with the requisitions of our system of registration. The ruinous consequences to land holders resulting from this novel suggestion, are too obvious and alarming to permit its receiving, for a moment, the sanction of this court.

The deed from Aspinall to Swinburne, derives no validity from the confirmatory or curing provisions in the acts of 1692, ch. 30; 1699, ch. 42; and 1715, ch. 39; or either of them: those provisions only curing such defective conveyances, as had been recorded within the year. That deed bears date on the first day of March 1684, and by an indorsement upon it, properly recorded with it, it is apparent that it could not have been recorded prior to the 10th day of December 1705, and, therefore, can derive no aid from the confirmatory enactments of 1692, 1699, and 1715. It would have been otherwise, had the deed appeared to have been recorded within the year. That is, it would have been admissible to sustain any locations made according to its courses, distances, and calls, upon the plots in the cause. To that extent it was admissible to shew tide, or sustain the correct locations of Wicksall and AspinalPs Hope, but not to shew title to, or sustain the appellees locations of part of AUansorPs Folly, because the deed professes to convey “part of a parcel of land called Allanson’s Folly,” and in giving its description by courses and distances, it has but two straight lines, which can embrace no deed, or any part of the tract of land called “Allanson’s Folly.”

But it is alleged, that the time of the recording of a deed is a matter of fact to be determined by the jury, and not a matter of law, resting in the decision of the court. To this, as an universal proposition, we cannot give our assent. The time of the recording of a deed is, sometimes, a matter to be determined by the court, and sometimes a question to be submitted to the finding of a jury. If it plainly appears, from indorsements officially made upon a deed, or its exemplification, that it has not been recorded within the time prescribed bylaw; and there is no admissible evidence in contravention of such indorsements, then the admissibility of the deed, or its exemplification in evidence, is determined by the court without any reference on the subject, to the jury. But if there be such admissible contravening testimony, as to the time of the recording of the deed, legally sufficient to be left to the jury to warrant them in finding that the deed was recorded in due time, then is the question, as to the time of recording of the deed, to be submitted with an hypothetical instruction from the court to the jury. As to the exemplification before us, there is no such contravening testimony, and the objection taken to its admissibility ought to have been sustained by the court.

In regard to the exemplified copy of the deed from William Moss to George Mason, the facts upon which its admissibility depends, are somewhat variant from those connected with the deed from Humphrey S. Aspinall to Elizabeth Swinburne. As to the former deed, it does not appear by any endorsements upon it, whether it was recorded in time or out of time. If in time, though unacknowledged and not indented, by the curing influence of the act of 1715, ch. 47, it would have been admissible to prove title to Wicksall and AspinalVs Hope, or to sustain locations made in conformity to it. In 1705, the date of the conveyance from Moss to Mason, a deed to be effectual for the conveyance of land, must have been recorded in one year. He who asserts title under such a conveyance, must prove its enrolment within the period prescribed by law. The onusprobandi, in that respect, rests on him. The deed, it is true, is proven to have been recorded; but as to the time of its enrolment, there is not a shadow of proof. Why such proof, so accessible to both parties, was not produced, it is difficult to imagine. Had it been adduced, its sufficiency, in point of fact, to establish the enrolment of the deed within the requisite period, was a matter for the determination of the juiy, not of the court. The county court, therefore, we think was in error, in assuming the jurisdiction which appropriately belongs to the jury. And the error is apparent, when we advert to the circumstance, that the court drew its conclusion, that the deed was enrolled in time, without any proof sustaining such an inference.

As respects the copy of George Mason’s will, offered in evidence by the appellees, we cannot entertain a momentary doubt of its inadmissibility. Of wills of land in Maryland, our own courts, only, are authorised to take probate. If a title to lands in this State, is derived under Mason’s will, its existence and validity must be proved by other testimony, than a mere exemplified copy of its probate, in a court in the State of Virginia.

From the instruction given by the court to the jury, in this bill of exceptions, we also dissent. This court having determined, that the copies of the deeds from Aspinall and Moss, and of the will of Mason, were inadmissible, as evidence under the circumstances in which they were offered; and the appellees having shewn by their own testimony, that Sarah Mason was not an heir at. law of George Mason, and as such, entitled to the lands in controversy, her possession not being lawfully derived from him, cannot be so connected with his, that from the long continuance of the possession by the two, (till 1824,) regular conveyances, from the patentees of Wicksall and AspinalPs Hope, might be presumed to the said George Mason. The possession of Sarah Mason being out of the question, the only possession on whicli this presumption of “regular conveyances from the original patentees” of Wicksall and AspinalVs Hope, is founded, is that of George Mason. And what is the proof of possession of these two tracts of land, and of its continuance by George Mason 9 The only evidence of his possession, is an extract of an entry from old rent roll, No. 1, for St. Mary’s and Gharles counties, which states Col. Mason, of Virginia, to be the possessor. But when that entry was made, or for how many years it was continued; whether the possession lasted for one year or twenty years, the admissible evidence in the cause, furnishes us with no means of ascertaining. For aught, that we can know, Col. Mason may have been an intruder, and possessor for one year only. To make the presumption required in support of such possession, as that, proved to have been in Col. Mason, cannot, meet the approval •of this court. Nor can we readily perceive how the county court, after sustaining the validity of the deeds from Humphrey S. Aspinatt to Elizabeth Swinburne, and from William Moss to George Mason, could, in opposition to those deeds, and to their utter exclusion, direct the jury to presume regular conveyances from the original patentees of Wicksall and AspinalVs Hope, to George Mason, if the deeds of Humphrey S. Aspinall and William Moss were sanctioned by the court, they repelled the idea of conveyances from the original patentees to George Mason; and the only presumption of grants that could, consistently with its own decision, be raised by the county court, was from the patentees of Wicksall and AspinalVs Hope to Humphrey S. AspmaU.

Having, already, stated sufficient grounds for the reversal of the judgment of the county court upon the ninth bill of exceptions, we forbear to scrutinize other portions of the testimony therein detailed, to ascertain if they be not obnoxious to the objection taken to their admissibility.

The appellees, in the tenth bill of exceptions, “prayed the court to instruct the jury, that, according to the true construction of the patent of Nonesuch, aforesaid, the said Sarah, Richard and Walter Brooke, the grantees therein, were j oint-tenants, in fee-simple, of the land granted by the patent; and that if the jury find, that said Walter survived said Sarah and Richard, the other patentees, then the fee-simple in said lands so granted, devolved upon the said Walter.” This instruction the court granted, and the correctness of their so doing, is the question we must decide, under the tenth bill of exceptions. In construing a grant, it is the duty of the court, first, to ascertain what the parties intended should be effected by it. And that intention being collected from an inspection of the grant itself, it is the duty of the court to give to it such an interpretation as will effectuate that intention, provided the terms and expressions used in the grant, will admit of such a construction. Looking to the premises only in this grant, we think that its design, and the intention of the parties-to it, are too clearly and fully expressed, to admit of any reasonable doubt as to what they were. It states, in substance, that the grantees had applied for the grant to be issued to them, agreeably to the devise or “bequest’ ’ in the last will and testament of Thomas Brooke, and that the grantor had consented to make the grant accordingly. And it proceeds to state, that “therefore, in consideration thereof;” that is, in pursuance of such intent and agreement, the grantor did “give, grant and confirm unto the grantees, the aforesaid tracts or parcels of escheat land, now re-surveyed, with the vacancy added, reduced into one entire tract, and called Nonesuch, and bounded as follows,” &c. If this grant had issued without the “habendum,” could a serious doubt have been urged, but that it would have fully effectuated the design and intention of both the grantor and grantees; and that the tract of land called “Nonesuch,” would have vested in tlie grantees, agreeably to the recited clause in the last will and testament of Thomas Brooke? We think not. It matters not that it is given to the grantees, without any express words of inheritance. The terms used in the granting clause itself, sufficiently declare the intenlion of the grantor, to transfer to the grantees tire same interests and estates in the lands granted, with which it was designed to invest them, by the last will and testament of Thomas Brooke; and whether such declared intent preceded or succeeded the words, give, grant, <fcc., our construction of this clause of the grant, would be in nowise changed thereby.

“The technical meaning of the word, premises, in a deed of conveyance, is everything which precedes the habendum;” “and it is in the premises of a deed, that the thing is really granted,” The premises of the grant before us, passing, as we conceive, the lands granted in conformity to the last will and testament of Thomas Brooke, and the declared intent of both grantor and grantees, the next enquiry to he answered is, has the habendum such controlling influence over the grant as to defeat the estates created by the premises, and substitute, in their places, entirely different estates, contrary to the manifest intent of the parties to the grant. According to our construction of the grant, made by the premises, it is in direct conflict with that contained in the habendum. Both cannot prevail. One must overrule the other. Which takes precedence, is the question? In our opinion, the limitation contained in the habendum must be rejected, and the estates given in the premises must prevail, in 2 Lomax's Dig., 188, it is stated, that “where there are two clauses in a deed, of which the latter is contradictory to the former, there the former shall stand.” And in page 215, of the same hook, it is said, that “where the Imbendum is repugnant and contrary to the premises, it is void, and the grantee shall take the estate given in the premises. This is a consequence of the rule already stated, that deeds shall be construed most strongly against the grantor; therefore he shall not be allowed to contradict or retract, by any subsequent, part of the deed, the gift made in the premises.”

It follows from the views we have expressed, that we think the county court en-ed in granting the appellees prayer in the tenth bill of exceptions.

It is, we think, apparent, that the prayer of the defendant below, in the eleventh bill of exceptions, has not been correctly transcribed in the record trarrsmitted to this court, it being, in a great measure, unintelligible. We, however, have no alternative but to assume, that the county court acted upon it in the form in which it appears before us; and, therefore, on account of its unintelligibility, properly rejected it.

We, also, concur with the county court in its refusal to grant the defendants prayer in the twelfth bill of exceptions, hut for very different reasons from those which influenced the action of that tribunal. Under the act of 1825, ch. 117, the only point, decided by the court below, was the insufficiency of the cause assigned, in bar of the appellees right to recover. The prayer was, “that the plaintiffs cannot claim title to the lands in controversy, and maintain an action of ejectment for (he same, in virtue of the grant from the Lord Proprietary to Sarah Brooke, Walter Brooke, and Richard Brooke, because said grant is repugnant to, and in violation of the express terms of the will of Thomas Brooke, and is a fraud upon his devisees.” In responding to this prayer, the county court was bound to give its true construction to this grant, so far as concerns the objection urged against it. That construction, this court have said, so far from being repugnant to, is in perfect consonance with the will of Thomas Brooke, and is, consequently, no fraud upon his devisees. In this view of the question we must say, that the court below committed no error in its refusal of the appellants prayer in her twelfth bill of exceptions.

We concur with the county court in its rejection of the appellants prayers in the first, eleventh and twelfth bills of exceptions; but dissenting from its instruction to the jury in tire second and third bills of exceptions, and from its overruling the appellants objections to the evidence offered in the fourth, fifth, sixth, seventh, eighth and ninth bills of exceptions, and from its granting the appellees prayer in the tenth bill of exceptions, we reverse its judgment.

JUDGMENT REVERSED.