Rogers v. Moore , 7 H. & J. 141 ( 1826 )

Stephen, J.

delivered the opinion of the court. The sole question in this case is as to the beginning of the tract of land called Carter’s Delight, which is stated in the patent to begin *‘at a bounded red oak, standing nineteen perches to the south ®f the main road, and at the end of the first.line of a tract of .land called Mountainess,” which tract is sometimes called Mount envy’s Neck. The appellant contends that the call is an imperative one, and that Carter’s Delight must begin at the end of that line, and that the jury are not at liberty to find from the evidence, the true beginning of that tract at any other place, although they should find the tree called for not to stand at the end of the first line of the tract of land called Mountainess.i as expressed in the patent. The question here presented for the consideration of the court is not now open for discussion, but.has long sinee been put to rest by several solemn adjudications of this tribunal. In the case of Carroll, et al. Lessee vs. Norwood, 5 Harr. & Johns. 155, after affirming the right and jurisdiction of the court to decide on the construction of grants and deeds, the court go on and declare it to be the exclusive right and province of the jury to ascertain and fix calls according to the evidence legally admissible for that purpose. So in the case of Rench vs. Beltzhoover, 3 Harr. & Johns. 469, the court express themselves in the following terms: “The court are of opinion, that it exclusively belongs to the power and jurisdiction of the court to determine on the. true construction and operation of grants, and whether a call in a certificate of survey is to be gratified or not, and in what manner; and that it exclusively appertains to the province of the jury to find facts, and ascertain the true place or point called for, according to evidence legally admissible by the court.” There are other decisions of this court establishing the same principles, particularly the case of Pennington vs. Bordley, et al. Lessee, 4 Harr. & Johns. 450 So that the relative power and jurisdiction of the court and the jury upon this subject may now be considered as solemnly settled.

The court are therefore of opinion, that the jury were not bound to find the tree called for at the end of the first line of the tract of land called Mountainess.

JUDGMENT AFFIRMED.