Newman v. Jackson. 12 W.

THIS cause was argued by Key, for the plaintiff in error, and by Swann, for the defendant in error.

TRIMBLE, J., delivered the opinion of the court.

This was an action of ejectment, brought to recover lot No. 99, in Threlkeld's addition to Georgetown, with the improvements thereon, fronting 60 feet on Fayette street, and 120 feet on Second street.

The plaintiff in error was tenant in possession of the premises, appeared to the action, and, upon entering into the common consent rule, was admitted to defend, and pleaded not guilty, upon which issue was joined.

Upon the trial in the court below the plaintiff gave in evidence a deed from John W. Bronaugh to Thomas G. Moncure, conveying to him in trust, for the payment of certain enumerated creditors: "A lot on Fayette street, and Second street, in Georgetown, fronting 60 feet

on Fayette street, and 120 feet on Second street, with the [* 571] buildings, *improvements, and privileges," in trust, to secure the payment of the enumerated debts within thirty days; and, if not then paid, the property conveyed in trust to be sold, "after a week's notice in the Messenger," &c.

The plaintiff gave in evidence the notice published in the Messenger, under and in pursuance of which the property was sold at public auction, in these words, to wit: "By virtue of a deed of trust to the subscriber, for the securing certain moneys therein mentioned, wil be exposed to public sale, on Thursday, the 4th of March next, for ready money, the following described property, namely, lot No. 99, in Peter, Beatty, Threlkeld, and Deakins's addition to Georgetown, fronting 60 feet on Fayette street, and 120 feet on Second street, with a two story brick dwelling-house, in excellent repair thereon. The sale to take place on the premises.

"THOMAS G. MONCURE, Trustee.

"The above sale postponed until the 4th day of May next, when it will certainly take place. March 24, 1819."

The plaintiff proved that the lot conveyed by the deed of trust had been sold on the premises, at public auction, by Moncure, the trustee, on the day mentioned in the notice, and that Jackson became the highest bidder and purchaser; and the plaintiff gave in evidence the deed of conveyance made by the trustee to Jackson, for lot No. 99, &c., in pursuance of the public sale. It was proved that the plaintiff in error had entered upon the premises as tenant to John W. Bronaugh, and that he was in possession at the commencement ɔf the suit; and the town plats were also given in evidence.

Newman v. Jackson. 12 W.

A verdict was taken for the plaintiff, subject to the opinion of the court, as to the law arising upon the case, and the court below thereupon gave judgment for the plaintiff in that court.

It is contended for the plaintiff in error that the judgment of the court below is erroneous, and should be reversed:

*1. Because no valid sale could be made of the premises [* 572] in question without the aid of a court of equity.

2. Because the trustee's "proceedings were irregular, and no title passed to the appellee, by Moncure's deed of the 14th of June, 1819." We do not think there is any thing in the first ground assumed by the counsel for the plaintiff in error. Whether the conveyance from Bronaugh to Moncure be regarded as a mortgage, as contended for by the counsel, or as a deed of trust, in the usual and technical sense of the term, there can be no doubt it vested in Moncure the legal title to the premises; and his conveyance of the premises by deed to the appellee, if regularly made, must necessarily be regarded in a court of law as investing the appellee with the legal title. How the matter might be regarded by a court of equity is not for this court here to say. But it is perfectly clear that the conveyance of the trustee was a sufficient title at law to enable his alienee to recover in the action of ejectment, unless the second objection is maintainable. The second ground of argument proceeds upon an objection to the notice of sale. It turns out, upon an inspection of the town plats, that the premises in question do not lie in "Peter, Beatty, Threlkeld, and Deakins's addition to Georgetown," as described in the notice, but in "Threlkeld's" addition to Georgetown. And this mistake in the description of the premises, it is insisted, wholly vitiates the notice, and must render the sale made under it void. We think the objection ought not to be sustained. The law has prescribed no particular form for a notice of this description. It is sufficient if, upon the whole matter, it appears calculated reasonably to apprise the public of the property intended to be sold. We think the notice sufficient for that purpose, notwithstanding the inaccuracy of describing the property as being in "Peter, Beatty, Threlkeld, and Deakins's addition," instead of "Threlkeld's addition." It could not mislead those who did not know the precise limits of these respective additions, and they were, to those who might wish to purchase, of so little consequence as scarcely to form a subject of inquiry. That part of the description, all must have known, did not and could

not *point out the particular lot intended to be sold. That [* 573 ] could only be arrived at by the more certain and specific description of its locality; namely, "lot No. 99, fronting 60 feet on Fayette street, and 120 on Second street." To those who knew

Newman v. Jackson. 12 W.

the precise limits of the several additions, the notice furnished, upon its face, not only sufficient evidence of the mistake, but a sufficient corrective of that mistake. They could not be ignorant that Fayette street and Second street were not in the addition described, but in the adjoining addition, in the name of Threlkeld. As the lot is described as fronting 60 feet on one of those streets, and 120 on the other, it must have been obvious, at once, that as these streets crossed each other at right angles, and the lots were laid off in rightangled parallelograms, the lot intended lay in the angle formed by these two streets. The streets of a town are its public highways, and must be presumed to be well known to or easily found by all those who have an interest in knowing them, or inquiring for them. They are, indeed, the most prominent and notorious landmarks and guides by which the lots are to be sought for, found, and known.

It cannot be believed that any one wishing to find or know lot No. 99, fronting 60 feet on Fayette street, and 120 feet on Second street, or to purchase, could be for one moment misguided by the inaccurate and palpably mistaken description of its being in "Peter, Beatty, Threlkeld, and Deakins's addition."

Common sense would dictate to every one who read the notice, that the less important, obscure, and indefinite part of the description which, whether true or false, did not fix and give locality to the lot intended to be described, ought to yield to that palpable and notorious description, in reference to the public streets and highways of the town, which gave it positive locality.

It has been said that the No. 99 did not appear on the recorded plat of the town, upon which the square only is laid down, without divisional lines and numbers designating the lots of each square; but it is admitted it was numbered on the plat made out by order of the corporation, and lodged with the register, but not recorded.

[ * 574 ]

It is believed no purchaser would have ventured to buy without first inspecting the title deeds, and both the plats. But be this as it may, and even if any should have been so careless as not to examine the latter plat, still, it would clearly appear from the recorded plat that the lot described did not lie in the addition supposed by the notice, but in Threlkeld's addition, which was al that was necessary to correct the mistake; and it would also appear, it must necessarily lie in the angle made by Fayette street and Second street.

A purchaser or any one inclined to be a purchaser, of property upon those streets, could not have failed to have ascertained the particular lot intended by the notice.

Dunlap v. Dunlap. 12 W.

We all think the notice was, notwithstanding the mistake in part of the description, certain to a common and reasonable extent, and that is sufficient. Judgment affirmed, with costs.

DUNLAP and another, Appellants, v. DUNLAP and others, Respondents.

12 W. 574.

It being a general custom on the sale of entries in a military tract, for the vendee to take his chance of a surplus or deficiency in quantity, the vendor must show a special con tract in writing to entitle himself to such surplus.

THIS cause was argued by Scott, for the appellants, and by Doddridge, for the respondents.

MARSHALL, C. J., delivered the opinion of the court.

*This suit was brought originally by John Dunlap, the [*575 ] appellee, in the circuit court of the United States, sitting in the district of Ohio, to obtain a conveyance of one moiety of a tract of land in the State of Ohio, which was purchased, as is alleged in the bill, on the joint account of the plaintiff and his uncle Alexander, one of the defendants in the circuit court. Alexander, who made the contract, obtained the conveyance to himself, and afterwards conveyed the land to his son James. Both Alexander and James were made defendants.

Some time about the year 1792 or 1793, Alexander Dunlap purchased from John Fowler an entry of 1,000 acres of land on the Scioto River, in the Virginia military district, at the price of £100 Virginia currency. An agreement was entered into at the time, between the plaintiff and the defendant, Alexander, that this purchase should be made in partnership, the plaintiff says, with himself, the defendant says, with John Dunlap, senior, his father. The testimony, however, proves incontestably that, though the moiety of the purchase-money was paid by the father, it was paid for the plaintiff, whom he always considered as the rightful proprietor of the land. The purchase will, therefore, be treated, as being made on the joint account of the plaintiff and Alexander Dunlap. James Dunlap claims as a volunteer under Alexander, and his title is dependent on that of his father.

The original entry was made the 7th of August, 1787. It was withdrawn and reëntered on the 22d of April, 1796, and this entry was again withdrawn and reëntered on the 25th of July, 1796. The warrant was reëntered on nearly the same land. The changes were such as might probably be caused by a more perfect knowledge of the country; and the last entry, as surveyed on the 20th of Octo

Dunlap v. Dunlap. 12 W.

ber, 1796, contains about 300 acres of surplus land. The plat of the surveyor, however, on which the patent issued, specifies only 1,000 acres. The right to this surplus constitutes the chief subject of controversy between the parties. The plaintiffs contend that the whole entry was purchased, and that in such contracts the whole entry passes to the purchaser. The defendants insist that [576] the original contract was for only 1,000 acres, and that the surplus land belonged to Fowler. That he afterwards purchased this surplus, not on joint account, but for himself. In 1802 he obtained a grant for the whole tract, in his own name, and now claims the whole surplus as his separate property.

The entry is for 1,000 acres of land. The survey made on the entry purports to be for 1,000 acres of land. The plat and certificate of survey were transferred by John Fowler to Alexander Dunlap, by an indorsement in the following words: "I do hereby assign all my right, title, and interest to the within land to Alexander Dunlap, and request a grant may issue accordingly."

This is the only written evidence of the contract, and purports to be a transfer of the whole entry and survey.

The defendant, Alexander, alleges in his answer, that the original contract was 66 only for 1,000 acres of land," that after the survey he discovered the surplus and mentioned it to Fowler, who said that he had contracted to sell but 1,000 acres, and should require additional compensation for the excess. The respondent agreed to give him $300 for the surplus, and Fowler's receipt for that sum, dated the 17th of October, 1800, is annexed to the answer. Though the defendant introduces into his answer the allegation that he purchased only 1,000 acres of land, yet it is remarkable, that in the first part of the same answer he states himself to have purchased the entry, and also says that the surplus was not discovered until many years afterwards, when the survey was made. The reservation of a surplus, when no surplus existed, in a contract which purported to be made for the entire tract, at a time when the purchase of entries was a common transaction, and the probability that an entry might be so surveyed as to comprehend more land than it called for, or so as to interfere with other entries and lose a part of the land it covered, was a matter of general notoriety, is so extraordinary a circumstance as to justify a critical examination of the testimony by which it is supported.

Alexander Dunlap, in the first instance, states the contract to have been, in fact, what it purports to be, a purchase of the entry, 577] that is, of the entire entry. To reconcile this with the subsequent declaration, that "the purchase was only of