#### DUNCAN McCORMICK vs. CHRISTOPHER MONROE.

'Where there is an exception in, a grant, the onus of proof lies upon the. party who would take advantage of that exception.

In trespass q. c. f., the plaintiff, not in actual possession,must rely upon his, TITLE.

A grant obtained by fraud is voidable, when the land is the subjectol entry ;¡ when not the subject of entry, it; is void.,

(WAuen v. Richardson, 8 Ired.47,0, cited and approved.).

This is an action of trespass,, quare clausum ere&iT), tried before Ms Honor, Judge Settle, at the Eall Term, 1858, of Cumberland Superior Court.,' Plea:. general issue., The plaintiff declared upon a grant from the State, which includes the locus in quo — the grant contained the following' exception: “ Including two hundred and fifty acres previously granted, which is excepted in this grant.” $It was admitted, that the plaintiff was not in actual possession. The defendant’s counsel requested his Honor to charge that the plain*14tiff must prove that the locus in quo was within the grant, and without the exception. His Honor reserved the point; and on a verdict being found for the plaintiff, directed a - non-suit to be entered, from which the plaintiff appealed.

Beid, Banks and Kelly, for the plaintiff.

W. Winslow, for the defendant.

Nash, C. J.

It was well observed by the plaintiff’s counsel, that, unless the Court was disposed to over-rule their decision in the case of Waugh v. Richardson, 8th Ired. 470, there must be a venire de novo in this case. We concur with him. The only difference between the two cases, is in the nature of the actions, that of Waugh being an action of ejectment, and this trespass quare clausum fregit, —the principles governing the two cases being in some respects the same.

In ejectment, the lessor of the plaintiff must show a legal title to the premises in dispute. In trespass, the plaintiff, not in actual possession, must do the same ; and what will prove a sufficient title in the former, except in the case of possession under the act of ’77, will prove a good title in the latter. Hero it is admitted that the plaintiff is not in the actual possession of any part of the land covered by the grant under which he claims, and must rely, therefore, upon his title. If he has shown a legal title to the land in dispute, that title draws to it the possession, there being no adverse possession. In Waugh’s case, the grant to Kay, under which the lessor of the plaintiff claimed, embraced within its marks ajad boundaries eight thousand, six hundred and ninety-nine acres, — being a surplus of five thousand, six hundred and ninety-nine acres more than was apparently intended to be glinted. ' After describing the land, the grant contains these words, “including within its bounds 6,699 acres of land, which is excepted in this grant.” It was *15there insisted that the exception was inoperative, being vague and uncertain, in not specifying any particular portion as constituting the quantity reserved, and for that reason could not restrain the general terms of the grant of the land, according to the description in the patent.

The grant to McCormick, in this case, is for five hundred acres, under specified metes and boundaries, after which follows these words, “ Including two hundred and fifty acres previously granted,” which is excepted in this grant.” This exception is liable to the same objection as that contained in the grant to Kay, as being vague and uncertain, with the qualification that, in the patent, it is said to be of land previously granted. But there is nothing in the grant to show to whom the land had been previously granted,'nor in what part of the land within the boundaries it was located. It cannot, therefore, so far as this case is concerned, be permitted to restrain the general terms of the grant,, in which it is contained, and that, for the purposes of this action, the plaintiff has shown a legal title to all the land within the lines of his grant, and is entitled to maintain his action.

It was further xu-ged in this case, that it was incumbent on the plaintiff to show that the place on which the alleged trespass was committed, was within the boundaries of his grant, and without the boundaries of the 250 acres previously granted. We do not concur in the position. The plaintiff having shown a sufficient legal title to the whole of the land, within the boundaries of his grant, the possession was drawn to it by operation of law, and a trespass being committed on any portion of it, sustains this action.

But again : the plaintiff, having shown a sufficient legal title to the whole of the land covered by his grant, if there be a valid title to any portion of it in another person, it was the duty of the defendant to show it. The' grant referred to in the exception may be a good and valid one for aught that appears to us : with that question we have at present *16nothing to do. The defendant here is a mere tort-feasor, and must answer for his 'trespass, unless,, in a future trial, he can show a previous grant to himself, or to some third person, for the part of the land upon which the trespass was committed, — upon the principle “id cerium est quod cerium reddi potest,” whereby the vagueness of the exception will be cured»

There is error in the judgment below, and there must be ¡judgment for the plaintiff.,

Pearson, J.,

It is decided that an exception of “ 6699 acres, included within the bounds “of a grant for a large tract of land, which is described by metes and bounds, i& void, for vagueness and uncertainty.” Waugh v. Richardson, 8 Ired. 470. That case differs from the case now under consideration, in this.; here the exception is “two hundred and fifty acresj previously granted.” This would point to the means by which the description in the exception may be made sufficiently certain to avoid the objection of vagueness, by aid of the maxim “ id certwn est quod cerium reddi potest.” It may be done by proving that a part of the 500 acres, included in the plaintiff’s grant, had been previously granted, and what part; and if such part covers the l&cus in quo, the- defendant is not guilty of the trespass»

So,, the only question is, upon whom, does the onus lie 'l Clearly, upon the. defendant :• he relies upon the exception : it must fall, unless it is supported by proof of these facts ;; lie must, therefore, furnish ihe- proof which is required, ten bring it within the operation of' the maxim. This is but ait instance of the- familiar rule that the affirmative must be' proved.,

“ An exception is ever a part of the thing-granted.” Co. Litt. 47 a. The plaintiff’s grant covered the whole; a part was excepted. What part ? The defendant says it included the locust in quo. The plaintiff says it does not» The de--*17fendant, of course, must prove the affirmative. “ One makes ¿itle under a lease of a mannor, except the tenements late .xrgimts-, he' need hot aver that the 100 acres of pasture (the locus in quo) was not parcel of the exception.” Fulmenton v. Stewart, 1 Plow. 103.

One sets up a fine with proclamations as a bar; he need not aver that the plaintiff was not an infant or feme covert. Stowel v. Zouch, Id. 361. The Statute of Henry1 VII. makes a fine a bar to all strangers as well as privies, except infants, &c. So the Statute of Limitations, except •“ such accounts as concern the trade of merchandize, between merchant and merchant.” The .plea need not aver that the account is not such as .concerns the trade; that averment is to be made in the replication, and the onus is on the plaintiff. The proviso as to infants, ,&c., is in effect an exception: As to this the same remarks are applicable.

Another view of‘the subject may be taken. Suppose no part of the land had been previously granted: If the onus be on the plaintiff he can never recover an acre of it; yet, it is admitted that he is entitled to 250 acres of it.

Rut it is said .the plaintiff is estopped from saying that no part of the land had beeiT previously granted. The reply is, estoppels must be mutual, and bind only parties and privies: the defendant is neither a party or a privy to the grant.

Again : it is said, if in fact no part of the land had been previously granted, the plaintiff has beep guilty of a fraud, and Ms grant covers more land than he paid for: that may be true, and it may be the grant can be avoided by another proceeding; but it is not for that reason void, and the ob- ' jection cannot- be made in an action of ejectment, or of '¿trespass quaere clausum fregit.

It is settled, that where land is the subject of entry, the grant is voidable; where the land is not the subject of entry, the grant is void, and may be so treated in ejectment .or trespass.

*18Judgment reversed, and judgment for the plaintiff on the verdict.