CLARKE v. WAGNER and others.

a true and direct line, from that point to the Post Oak, nothing else appearing, and plaintiff would be entitled to recover, and their verdict should be for plaintiff. But defendants further contend that if you find that the lower end of Island No. 2 is the second corner called for in the grant, that they have shown a line of marked trees extending from the Post Oak corner west to the river, and that the same was run and marked by the surveyor in making the survey for the Houston grant, and that that line has always been known and recognized as the dividing line between the respective owners until about 1872, and that said marked line is the true line, although not a direct line from the lower end of Island No. 2 to the post oak corner. And the court instructed the jury that if they should so find the facts, that as this was the location of a grant from the State, that said marked line would be the true line, and plaintiff would not be entitled to recover and their verdict should be for the defendant. But defendants also further contend that if you should find that the lower end of Island No. 2 was the second corner called for in the grant and should not find the marked line from the post oak to the white oak was the true line under the instructions as given you, that they have shown a sufficient advers possession to give them title and to defeat the plaintiff's right to And upon this the court instructed the jury, that as it was shown that this land had been granted by the State to either Houston or Kyles, that if they found as a fact that the defendants and those under whom they claim had had an actual advers possession of the land in dispute for twenty years, that this would defeat the plaintiff's right to recover the land so held in possession; and if they further found that those in possession were claiming up to the marked line from the post oak to the white oak, the law would presume possession up to that line and plaintiff would not be entitled to recover, although he might originally have had the title to the

recover.

CLANKE V. WAGNER and others.

same. That this possession must have been an actual possession of a part of the land in dispute-a possession of other land under the Kyles grant not in dispute would not do, neither would the occasional cutting board timber, &c., do. But it must be such a possession as farmers in that neighborhood usually have of land they cultivate. Plaintiffs excepted:

1st. That his Honor left it as a matter of fact to the jury to say whether the second corner of the land, included in the Houston grant, was at the lower end of Island No. 1, or lower end of Island No. 2, when he ought to have told them, as a matter of law, that it was at the lower end of Island No. 2.

2d. That his Honor told the jury, in effect, that if the line from the white oak to the post oak was the line actually run for the location of the Houston grant, it would be the true line, though seemingly located there by mistake, and differing from the actual call of said grant.

3d. That his Honor told the jury that as the defendants claim up to a known marked tree (the line from white oak to the post oak) if they had actual possession of a part of the land between the line from the white oak to the post oak, and true line from the lower end of Island No. 2, to the post oak, (supposing that to be the true line) the law would presume this possession to be a possession of all the land between the two lines aforesaid, sufficient if long enough to bar plaintiffs' claim to all the land between said lines.

Verdict and judgment for defendants.

Motion for a new trial. Motion disallowed. Appeal by plaintiff.

M. L. McCorkle, R. F. Armfield and Johnstone Jones, for the appellant.

Scott & Caldwell, contra.

PEARSON, C. J. The statement of the case does not set out with distinctness the locus in quo, but we learn from it and the plat and the statement of counsel at the bar, that it composes a slip of dry land lying between a direct line from

CLARKE . WAGNER and others.

the lower end of Island No. 2 to the post oak corner, and a line of marked trees from that corner to a white oak on the bank of the river, marked as a "fore and aft;" and also a parcel of land covered by water. In regard to the dry land, there was evidence of a long continued possession by those under whom defendant derives title, claiming up to the white oak and marked line to the post oak. There was conflicting evidence as to how long this possession had been abandoned, to which his Honor seems not to have called the attention of the jury; but supposing, as to this part of the locus in quo, there was evidence to be left to to the jury; in regard to the parcel covered by water, there was no evidence whatever of any possession or of any definite line up to which claim was made. It may have been from the white oak down the river bank, which was the extent of the possession, or from the white oak to the lower end of Island No. 2; or to the island, by an extension of a line from the post oak to the white oak, or from the white oak to the lower end of Island No. 1, which the case states was the point claimed by the defendant.

His Honor erred in allowing the jury to find for the defendant in respect to this part of the locus in quo. There will be a venire de novo. As the case goes back, it may be well observe that his Honor is very indefinite on the question of boundary, which is the main purpose of the action, and for this the plaintiff has a right to complain, as well as for error above referred to. The object is to locate the Houston grant-it begins at a stake at the upper end of the island, thence, &c., to a stake at the lower end of the island, thence, "including two small islands."

The difficulty arises out of the fact, that the grant does not designate which of the two islands is meant by the words, a stake at the upper end, and a stake at the lower end of "the island." This is the governing fact in the case, and ought to have been distinctly left to the jury, with instructions to consider all of the evidence and the surroundings of the case,

ETHERIDGE and others v. Vernor.

including the marked line trees and corners, and the plot annexed to the grant, the tradition of old persons, the land and the nature of the river; were the islands permanent or liable to change by washing away at one place and gaining at another, and other like matters.

How can you adopt
Can a solution of

His Honor was at liberty, by way of illustration and to aid the jury, to say the grant includes two islands. If you adopt No. 1, how can you include both islands? On the other hand, there are certain marked line trees that cannot be reconciled with a corner at the lower end of No. 2. No. 2? and he ought then to have added: this difficulty be found in the supposition that since 1790, the upper part of No. 2 has washed off and there has been an accretion at the lower end? If the jury find that No. 1 is the island meant, the verdict should be in favor of the defendant. If the jury find that No. 2 is the island meant, then the court instructs them: The beginning corner of the grant is at a point which was the upper end of the island at the date of the survey, 1790, and the second corner is at a point which was the lower end of the island at that date, and the line must be run from the second corner, wherever the jury may fix it, directly to the post oak, an agreed corner.

PER CURIAM.

Venire de novo.

JOSEPH H, ETHERIDGE and others v. MELFORD VERNOY.

A assigned to B a portion of a note, specifying the sum asssigned; subsequently A assigned to C another part of the same note, likewise designating the same: Held, that B took the sum assigned to him in severalty, and was entitled to be paid out of the proceeds of the note, before C. could claim any part thereof.

CIVIL ACTION in the nature of a Bill in Equity, heard upon exceptions to the report of the Clerk of this court, to whom the case was referred at the last (June) Term.