#### DEN ON THE DEMISE OF JOHN LAUGHTER v. JOHNSTON BIDDY.

The rules of law, established for the ascertainment of boundary, are applicable in locating the lease formally set forth in a declaration of ejectment, so tha* where trees were marked originally by a surveyor, for the purpose of obtaining a grant, and are called for as such in the grant, and are mentioned as such in the lease set forth in the declaration, the lines in establishing such lease must be run to such marked and recognized trees, regardless oí other calls, depending merely on course and distance.

ActioN of Ejectment, tried before his Honor, Judge Caldwell, at the Fall Term, 1858, of Rutherford Superior Court.

The plaintiff’s declaration described the premises as “ a certain tract or parcel of land situate and lying in the county of Rutherford, on the South Branch of Walnut creek, beginning at a chestnut; thence South 16 poles, West 82 poles to a Spanish oak ; thence South 45 East 24 poles to a poplar on the South bank of the fourth branch of Walnut Creek; thence down the branch, &c., various calls to the beginning. He exhibited a grant from the State to Wiley Laughter, dated in 1884, corresponding in its calls with those in the declaration, except thattho third call was for a poplar on the South bank of the South branch of Walnut Creek. He then exhibited a deed from Wiley Laughter to himself, describing the boundaries of the land as “beginning at a chestnut, thence South 16 West 82 poles to a Spanish oak, thence South 45° East to a poplar to (on) the South bank of the South branch of Walnut Creek; thence, &c., purporting to include a much larger number of acres, and one or more tracts, besides the Wiley Laughter tract; the calls, too, above mentioned, were the same until after they passed the place where the trespass was alleged to have been committed. The plaintiff then called the surveyor, who testified that ho made the survey upon which the Wiley Laughter grant issued; that ho did not run as was set forth in the said grant, but that he began at the chestnut, and ran South 16°, West 82 poles to a *470Spanish oak, &c., corresponding with the calls of the deed from Wiley Laughter to the lessor of the plaintiff; that if the lines were run according to the courses called for in the declaration, or of the original grant to Wiley Laughter, the boundaries would not include the defendant’s possession; but if they were run according to the calls of the deed from Wiley Laughter to the lessor of the plaintiff, or according to the lines made by the surveyor originally, upon which the grant was issued, then the locus in quo would be included, tie further testified that he had been raised in that neighborhood, and was well acquainted with the country, and knew of no branch of Walnut Creek called fourth branch, but that the land laid on the south branch of Walnut Creek. He further testified that the deed of Wiley Laughter to the plaintiff’s lessor included other tracts besides the one described in the grant to Wiley Laughter. Plaintiff’s lessor showed a possession of seven years before the defendant’s entry.

DIAGRAM.

The defendant exhibited a grant to those under whom he claimed, dated in 1796, covering the land in controversy.

*471Defendant moved that the Court should order a non-suit, because of the variance between the deed and the declaration, which his Honor refused.

It,was contended by the defendant’s counsel, and the Court was called on to charge the jury, that the plaintiff was compelled to run according to the calls of the declaration, and not according to the deed or grant exhibited; and as, according to the calls in the declaration, the land on which the trespass was committed, was not within the boundaries, he could not recover ; that there was a variance between the deed and the declaration, and between that and the grant to Wiley Laughter, and that the one could not explain the other.

The Court instructed the jury that a variance between the declaration and the proof would be fatal to the plaintiff’s action; but in ascertaining the boundaries of the land described’ in the plaintiff’s declaration, if there was a conflict between the courses called for, and natural objects, the latter being more certain, ought to control. And if they believed that the monuments of boundary made by the surveyor originally, and called for in the grant to Wiley Laughter were the same called for in the plaintiff’s declaration, and by running to these monuments the locus in quo would be included within the declaration, they ought, on this part of the case, to find in favor of the plaintiff. The other exceptions were abandoned in this Court. Under these and other instructions in the case, the jury found a verdict for the plaintiff.

Rule for the plaintiff to show cause why a venire de novo should not be granted for the matters above excepted to. Rule discharged, and judgment and appeal to the Supreme Court.

J. Baxter, for the plaintiffs.

Bynum, for the defendant.

PeaesoN, J.

In compliance with the rule, that in pleading, the commencement of every particular estate must be set out, the declaration recites the lease for years under which the plaintiff claims'. In doing so, it is usual to follow the description contain*472ed in tbe original grant on some one of the mesne conveyances. In this case, the description in the grant and that in the deed to the lessor differ, both in a general and in a particular point of view; in the general, in this the deed covers two or three other tracts of land, besides the tract described in the grant; in the particular, in this : both begin at a chestnut, and'then go to a Spanish oak corner, but in getting to the Spanish oak, the grant makes two steps, e. i., South 16 poles, West 82 poles, whereas, the deed gets there by one step, e. L, South 16 West (degrees omitted) 82 poles to a Spanish oak. The lease recited in the declaration shows an attempt to follow the description in the grant, as that covers, according to plaintiff’s allegation, the tract sued for, and it was unnecessary to encumber the case by the description which covers other tracts; but the attempt fails in this: the grant as well as the deed to the lessor, after leaving the Spanish oak, calls South 45° East to a a poplar on the South bank of the South branch of Walnut Creek. The lease calls South 4ii° East to a poplar on the South bank of the fourth branch of Walnut Creek.”

The defendant’s counsel moved to nonsuit the plaintiff, because of the variance of the deed and declaration; the motion was refused; for this, the defendant excepts; there is no error. There is, of course, no variance between the lease recited in the declaration, and the lease under which the plaintiff claims; for, by the common rule, the defendant admits a lease to have been made as set out in the declaration; so the point of the objection is, that the lease varies from the deed to the lessor and also from the grant under which he derives his title. In regard to the deed, the variance, in a general point of view, between it and the grant, as well as the lease, is immaterial, for the fact that the deed includes other tracts, besides the one in controversy, can make no difference. The variance, in a particular point of view, is made the ground of a second exception, and will bo noticed below. In regard to the grant, there was no fatal variance between it and the lease; for the plaintiff was at liberty to explain it on the ground of a misprision in the draughtsman, by mistaking south, as writ *473ten, and supposing it to be fourth branch of Walnut Creek; or, by rejecting that part of the description in the lease as surplus-age, upon its appearing in the proof that there was no such water course as the fourth branch of Walnut Creek. By rejecting it, the only difference is that the description in the grant is more full than that in the lease; but, if the latter is sufficient to bring: the lease to the poplar corner, it answers every purpose; for the-proof is that the other part of the description will then cover the-locus in quo. It is by no means true that the lease must follow either the grant or the mesne conveyance under which the defendant makes title. A general description in the lease is sufficient, provided it covers ihe locus in quo, e. g., “a certain tract off land in the county of —--,■ upon which C. D., (the tenant in possession) then lived.” Eor the true question is, does the description in the lease and the description in the grant and deeds under which the lessor makes title, cover the locus in quo ?

This brings us to the second exception. It is admitted that the deed to the lessor covered the iocus in quo; it is also admitted, that the grant, if run according to the rules, applicable to questions of boundary, covers it; but the defendant’s counsel insisted-that the plaintiff was ^compelled to run according to the calls-of the declaration, and not according to the calls in the deed, or grant; and as, according to the calls in the declaration, the-locus in quo was not covered, he eould not recover.” His Honor refused so to charge, but held that in locating the lease, the lines-were to be run according to the rules applicable to questions of boundary, which he explained to the jury with clearness and accuracy. The defendant excepts, because the Court held that the plaintiff was not compelled to run “ according to the calls of the declaration,” but was entitled, in locating the lease, to the benefit of the rules applicable to questions of boundary; e. i., that a natural object, or a tree marked as a corner in the original survey, and called for,would control course and distance. There-is no error.

The defendant’s counsel puts his exception upon the ground, that there is- a distinction between a question of pleading, and » *474question of boundary; in the latter, certain rules are applicable, as laid down by the Court below; but, in the former, these rules are not applicable, and a defective declaration cannot be aided by them. The distinction is a sound one, and is recognized by this Court. President of the Deaf and Dumb Institute v. Norwood, Bus. Eq. 65; Mayor of Linn regis, 10 Rep. 128: “If the name of a corporation be mistaken in a writ, a new writ may be purchased of common right; but if it were fatal in leases and obligations, the benefit of them would be wholly lost; and therefore one ought to be supported, and not the other.” It may be conceded further, that the reason of the distinction extends to “ the thing ” sued for, as well as the person or corporation sued; and yet, we think it clear that the distinction does not apply to the case under consideration. The location of the lease, under which the plaintiff claims, is no more a question of pleading, than the location of the grant or deed under which the lessor claims, and if the rules in regard to boundary are necessary and proper, in the location of a grant or deed in fee simple, they must be equally so in the location of a lease or deed for an estate less than a fee, and the plaintiff is not to be prejudiced in the slightest degree by the fact that, instead of taking an actual lease on the premises, he is allowed, by the course of the Court, to suppose that a lease was made to him, and the defendant is required to admit that such is the fact. Now, if there had been an actual lease for years, describ-ng the land, as it is in the lease recited, by the declaration, there can be no sort of question, but that the rules in regard to boundary would be applicable; of course they are applicable to the lease for years, which the declaration supposes and the defandant admits to have been made. Consequently, it was proper to instruct the jury, that, in locating the lease, a natural object, or a tree marked and called for as a corner, would control the course and distance, and that the plaintiff was not compelled to locate the lease according to the calls of the declaration, (by which we understand the courses and distances of the lease recited in the declaration;) and that the jury should extend *475the lines, disregarding course and distance, to the Spanish oak and poplar; if they were satisfied that these were the trees originally run to and marked by the surveyor, and called for as % corner, by the grant and lease, you must go to it, and it made1 no difference whether you get' there by one step, South, 16* degrees West, 82 poles, or two, South, 16 poles, West, 82 poles, (the locus not being in the triangle thus made,) and, after" getting to the Spanish oak, you must run to the poplar, if that tree-was originally run to and marked by the surveyor,- and-was the tree called for as a corner by. the grant and the lease,, and the fact, that it was described in the lease,- as' stand ing on the South bank of the fourth branch of Walnut creek (there being no water course of that name) made no difference.These are well settled rules of boundary, applicable as well'to-leases for years, as to deeds for an estate for life or in fee, and the facts of this case show conclusively that the rules are founded in good sense, because, by their aid, the lease is located, so as to correspond with the grant, which it was clearly the intention to follow, notwithstanding the mistake in taking' South, as. written, to be fourth, and the mistake in filling up the:granfr so as to call from the- chesnut, “thence South 16 “poles ” West, 82 poles, to a Spanish oak, thence South 45 degrees East, 24 poles to a poplar, thence,” &c., instead of pursuing the survey, and calling thence South, 16 degrees West, 82 poles to a Spanish oak : a mistake originating by the omission of degrees after* 16, and supposing it tobe IQ poles, instead of degrees: whereas, it is evident, that it was not the intention to make a corner before getting to the Spanish oak, the making of a corner being followed throughout the grant as far as it is’set forth by the word “thence.”

Peb Cubiam. Judgment affirmed.