Rogers' Lessee v. Raborg , 2 G. & J. 54 ( 1829 )

Buchanan, Ch. J.,

delivered the opinion of the Court.

This case is brought before us on three bills of exception taken at the trial; the first of which is to the refusal of the Court to permit a deposition, which was offered in evidence, to be read to the jury.

It is a settled rule of evidence in this State, that if a person who has been regularly sworn, and examined on the ground, upon a survey executed in an action of ejectment, dies before the cause is tried, or leaves the State, and goes to parts unknown, and without the reach of the process of the State, so that his attendance as a witness cannot be procured, his deposition so taken and returned with the plots, may be read in evidence at the trial from necessity, and being taken too by authority, and with the privilege and advantage of cross examination extended to the opposite party. Here the foundation laid for letting in the deposition of the witness, which appears to have been regularly taken on the survey, and returned with the plots, was, that he had since become paralytic, and though regularly summoned as a witness, was unable to leave his house, or to speak so as to be understood. He was not indeed dead, nor had he gone out of the State, beyond the reach of the process of Baltimore County Court, in which the action was depending; but he was dead to all the purposes of giving evidence in a court of justice, and the benefit of his oral testimony at the bar, was as much lost to the party, as if he had, in fact, been dead, or liad left the State.

The necessity, therefore, of resorting to his deposition, was the same as if he had been dead, and the reason being the same, we think it ought to have been admitted. And more strongly than if he had left the State; his inability to give evidence being produced by the act of God, leaving to the party requiring the benefit of it, no means of obtaining it, and without any negligence or fault on his part, which may not always he strictly the case, in relation to a witness who has left the State.

We differ, loo, with the Court below, in the opinion presented by the second exception, and think that Court erred in not permitting the appellant to give in evidence to the jury, the locations made by Alexander Frasier, in an action of Ejectment brought by him against. Cornelius Howard and Henrietta .Rogers, tor the tract of land called Deep Point, as, and for, his claim and pretensions.

Henrietta Rogers was the patentee of the tract called WidouAs As.sistow.ce, for which this suit was brought, and Philip Rogers, the lessor of the plaintiff, (who is the appellant,) is her son and heir-at-law, and claims under her. John Frasier, under whom Alexander Frasier claimed, was the (patentee of Deep Point, and Raborg and Red-ding, the defendants, (who are the appellees,) claim under Alexander Frazier. The location of Deep Point, as made by Alexander Frasier, as and for his claim and pretension on the plats returned in the action, brought by him for that tract of land, against Howard and Henrietta Rogers, is transferred from those plots, to the plots returned in this cause. Deep Point being the elder tract, the right of the appellant to recover, depends, as that of Alexander Frasier did, in his action against Howard and Henrietta Rogers, upon the true location of that tract. And if that suit had proceeded to trial and verdict, and this was a case between Henrietta Rogers and Alexander Frazier, it cannot be doubted that the plots returned in that case, and the location thereon by Frazier of Deep Point, might be given in evidence against him; it is the every day practice. And as little can it be doubted that the same evidence might be given by the heir-at-law of Henrietta Rogers, against those claiming under Alexander Frazier. But it seems to have been thought inadmissible, because Alexander Frazier did not prosecute jhis suit against Howard and Henrietta Rogers to a trial, but suffered a non-suit to be entered. The force of this objection we do not distinctly perceive; the evidence offered was not as a judgment on the merits against Frazier, but only to show his own views, in relation to the true location of the land he claimed. The declarations, or admissions of a party to a suit, may always be given in evidence against him; why then may not his more solemn acts, such as a deliberate location of a fract of land, claimed by him, upon plots returned in a suit brought for the recovery of it, showing his own opinion of its true location, with which he may be supposed to be acquainted? We do not say it would be conclusive evidence against him, or those claiming under him, in any, subsequent suit involving the location of the same land; it certainly would not. But we think it clearly admissible, as a fact evincing his sense at the time, touching the proper location, as much so as any other act, declaration, or, admission of his could be.

The question presented by the third exception, arises on the construction of the patent for the tract of land called Deep Point. The expressions in the patent, to which we are called upon to give a construction, are “lying in the county aforesaid, on the head of the north west branch of Patapsco river, and joining the south west side of Baltimore town, and on a tract of land called Lunn’s Lot, beginning at a bounded red oak tree, standing near a bounded locust post, which post is the beginning boundary of Baltimore town, and running thence, &c.” the different lines, courses and distances without calls. It is contended, that the expressions used must be understood to mean “ joining on Dunn’s Lot” and that the patent for Deep Point must ho so construed, as that by force of the word joining, Deep Point cannot be located so as to run into Dunn’s Lot, but that the first line must, to its whole extent, run with, and adjoining to, an out line of .Dunn’s Lot; and it was so adjudged by Baltimore County Court.

But we do not perceive any thing in the language of the patent that we think will sustain such a construction. Where boundaries called for in a grant can be established, it is a settled principle of construction, that the courses and distances expressed, are to be disregarded, and the lines run to the boundaries, according to the calls. But what boundaries are called for here? Neither the first, nor any other line of Deep Point, has a call to the first or any other line of Dunn’s Lot, but each is expressed to run a certain course and distance, without any call; and if it be admitted that Deep Point must he so located as to adjoin Dunn’s Lot, what is there to confine that junction to the first, more than any other line? Or with what line of Dunn’s Lot is the junction to be made? That, indeed, is not professed to he ascertained; but the argument is, that the first line of Deep Point must join, and run its entire length with some out line of Lunn’s Lot, which would seem to be entirely arbitrary. The part or line of Deep Point to join Lunn’s Lot, is no more designated than the part or line of Dunn’s Lot to he joined; and the expression joining in the patent, would be as fully gratified by a joining at one point, as at another. And if the tree called for as the beginning tree of Deep Point, does not stand on a line of Dunn’s Lot, it would be impossible to run the first line of Deep Point in its whole extent with, and adjoining a line of the latter tract; but a course would have to be shaped to strike it, which would be to add a line to Deep Point, and to change the course and distance of the first line, without any express call to authorise it, and to leave the point of termination of that line altogether uncertain, in the place of the course and distance clearly expressed, contrary to the ordinary office of calls, which are usually preferred for greater certainty. But we think the patent for Deep Point will not admit of such a construction; and that the word joining, as there used, is not of such imperative and binding force, as that, that tract of land must he so located as to join on Dunn’s Lot, and cannot run into it. It seems to us that the expression used, maltes no part of the description of the land itself, or of its metes and bounds, but was intended only as a general designatio loci, where it was supposed to lie; and that the beginning tree being ascertained, the location of the land from that tree, must be governed by the particular description given by courses and distances, they having no calls or binding expressions to control them.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.