Middleton v. Dyer , 2 H. & G. 461 ( 1828 )

Buchanan, Ch. J.

at this term, delivered the opinion of the court. This case is not without difficulty, and rests upon the intention oí John Smith, to be collected from his will; in which the land devised to his son John Smith, is described a,s beginning at the first bounded tree of the devisor’s land, and running thence “down Zachia Swamp to a branch called Jordan’s Branch, and so up the branch,” &c. The land so devised, is part of an original tract then owned by the devisor, called Jordan. The opinion of the court below seems to have gone on the ground, that by “Zachia Swamp” was meant “Zachia Branch,” treating them as synonimous terms; and that as the tract of land called Jordan, is expressed in the patent to run down and with, and to be bounded by the branch, the part devised to John Smith, should receive a corresponding location from the beginning tree of Jordan, to the mouth of Jordan’s Branch. To accomplish which, departing from the expressions in the will, “running down Zachia Swamp,” the court assumed a course, from the beginning tree, across the swamp to the branch, which appears to us to have been wrong.

Apart from the ordinary acceptation of the terms, the grant of Jordan takes a clear distinction between the swamp generally, and the particular object called for in designating it as “the main Branch of Zachia Sioamp;” and though it may be necessary, in the location of Jordan, to shape a course from the beginning tree, across the swamp, to the main branch for which it calls, in order to gratify the binding expressions of the grant, “bounded on the east with the said main branch, and running down and with the said main branch,” &c. Yet the will of John Smith has no such expressions or binding calls, but merely directs that the part of Jordan, devised tN his son John Smith, shall begin at the beginning tree of the original tract, and run down Zachia Swamp to Jordan’s Branch. And in locating the devise, we can perceive no authority in the will for running from .the beginning tree, directly across the Swamp, to the main branch, and then down the branch to the mouth of Jordan’s Branch, according to the instruction of the court, to which this exception was taken, instead of running down Zachia Swamp to Jordan’s Branch, as-directed by the will. There being no particular point on Jordan’s Branch called for, the principal difficulty has been in determining what point of intersection was intended by the devisor; but taking the different parts of the will together, we think it sufficiently apparent that he meant the mouth of that, stream.

The devise to his daughter, Sarah Smith, is of three hundred acres of land, “lying on the south side of Jordan’s Branch, and running from Zachia up with the branch” to the out line of Jordan; thus constituting Jordan’s Branch, from its mouth, the northern boundary of that devise throughout its whole extent on that side. The land devised to John Smith, is made to bind upon the opposite side of the same stream upwards from the point of intersection, by the provision authorising him, if he should not have three hundred acres on that side, to run over the branch, so as to make up the quantity of three hundred acres. From which it would seem to have been the intention of the devisor, if John should have his quantity of three hundred acres without running over Jordan’s Branch, that that stream should be the boundary, not only of Sarah’s land from the mouth upwards, but co-extensively the boundary between the lands of Sarah and John, We, therefore, think that the devise to John Smith ought to be located from the beginning tree, by a course running down the general direction of Zachia Swamp to the mouth of Jordan’s Branch, wherever that may be found to be.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.