1825.

The counsel for the plaintiff has cited many

M'Dowell cases, in which entries have been sustained, although the whole description they contain has not been precisely accurate. .

V.

Peyton.

The Court has examined these cases, and is of opinion, that in all of them, although the description may be in part defective and uncertain, such defect and uncertainty have been cured by other calls, which afford all the information that could be reasonably required. An example of this is furnished by the case of Taylor v. Kincaid, (Hardin, 82.) The entry was made "on the head of Willis Lee's branch, four miles from Leesburg," and was sustained, although the head of the branch was, in truth, eleven miles from Leesburg. In this case, however, the mistake in the distance was corrected by the notoriety of the object itself. Willis Lee's branch, at the time, and before the location was made, was so notorious that the inquirer could not be misled by the mistake in the distance. That a part of the description which is erroneous, may be discarded, if the object called for is itself so notorious that it requires no aid from description, and cannot be mistaken; and that such part will not vitiate the entry, may be admitted, without impugning the judgment in the case of Couchman v. Thomas. Tabb's entry contains no descriptive call, which would conduct the inquirer to the white-ash saplings he is in search of, and the saplings themselves were not objects of sufficient notoriety to cure the defects in the general description.

Decree affirmed.

1825.

Darby

V.

[LOCAL LAW.]

DARBY'S Lessee v. MAYER and another.

Quære, How far a will of lands, duly proved and recorded in one State, so as to be evidence in the Courts of that State, is thereby rendered evidence in the Courts of another State, (provided the record on its face shows that it possesses all the solemnities required by the laws of the State where the land lies,) under the 4th art. sec. 1. of the constitution of the United States?

The local law of Maryland, as to the effect of evidence of the probate of a will of lands, in an action of ejectment, is the same with the common law.

A duly certified copy of a will of lands, and the probate thereof, in the Orphan's Court of Maryland, is not evidence in an action of ejectment, of a devise of lands in Tennessee.

ERROR to the Circuit Court of West Ten

nessee.

Mayer.

This cause was argued by Mr. Bibb and Mr. March 1st. Isaacs for the plaintiff in error, and by Mr. White and Mr. D. Hoffman for the defendants in error. But as the judgment turned only on a single point, and does not finally dispose of the cause, it has not been thought necessary to report the argument.

Mr. Justice JOHNSON delivered the opinion of March 17th. the Court.

This was an action of ejectment, in which the present plaintiff was plaintiff in the Court below. His title is derived through a patent to one John Rice, and successive conveyances down to him

Darby

V.

Mayer.

1825. self, which it is immaterial to recapitulate, since no question arises upon this part of the evidence. The defence set up was the statute of limitations, and in order to bring himself within its provisions, the defendant received the patent under which the plaintiff claims, as the patent for his own land, and undertakes to connect himself with it. This gave rise to a variety of exceptions taken by the plaintiff to the evidence offered by the defendant for this purpose, to which the defendant replies, that should he have failed in establishing a connexion by a chain of title, he has complied with the statute notwithstanding, by proving his possession within the patent issued to Rice, which, he contends, is all the connexion with a patent which the law requires.

One of the grounds of exception made by the plaintiff is, that the evidence of the defendant proves his possession to be upon a tract of land essentially different from that which the patent covers. And not a little difficulty has existed on this part of the case, to understand the counsel when discussing the question of identity. All this has arisen from omitting to have the locus in quo established by a survey; an omission to which the Court takes this opportunity to express its disapprobation. It is true, that the case upon this bill of exceptions can be disposed of without such a survey, but great facility would have been afforded by a survey, in understanding the discussion, which, without it, was scarcely intelligible. It is very obvious, when we refer to the patent to Rice under which the plaintiff claims,

Darby

V.

and the entry to Ramsay through which the de- 1825. fendant deduces title, both of which are made parts of the bill of exceptions, that they do not describe the same land. On the contrary, that to Rice, calling for the entry to Ramsay as its eastern boundary, must necessarily lie without it.

However, we are of opinion, that we are not now at liberty to notice this inconsistency. The bill of exceptions states, that the plaintiff proved the defendant in possession of the land granted to Rice, and the defendant proved himself in possession of the land entered to Ramsay, both concurring in the fact that the land in the defendant's possession was the land in controversy; from which it certainly results that Rice held a patent for Ramsay's entry. But the defendant having no patent, the other has, of course, the legal estate in him, which may be barred by the defendant's possession, if he brings himself within the provisions of the statute.

In order to connect himself with the patent, the defendant proved a sale of the inchoate interest of John Rice to one Solomon Kitts, and the next link in his title depended upon the will of Solomon Kitts. To prove that Kitts devised the land to the trustees through whom defendant made title, a copy and probate of the will of Kitts was produced in evidence, duly certified from the Orphan's Court of Baltimore county, Maryland, in which, it seems, the will had been recently proved and recorded. This evidence was excepted to, but the Court overruled the exception, and it went to the jury.

Mayer.

1325. Darby

V.

Mayer.

probate of a

at

law.

common

The question is, whether the evidence thus offered was legal evidence of a devise of land?

The common law doctrine on this subject no one contests; the ordinary's probate was no evidence of the execution of the will in ejectment. Effect of the Where the will itself was in existence, and could will of lands be produced, it was necessary to produce it; when the will was lost, or could not be procured to be produced in evidence, secondary evidence was necessarily resorted to, according to the nature of the case. But whatever proof was made, was required to be made before the Court that tried the cause; the proof before the ordinary being ex parte, and the heir at law having had no opportunity to cross-examine the witnesses; neither were the same solemnities required to admit the will to probate as were indispensable to give it validity as a devise of real estate. first it was a question of controversy between the common law and ecclesiastical Courts, whether a will, containing a devise of lands, should not be precluded from probate, although containing a bequest of personalty also. And the question was one of serious import, since the common law Courts required the production of the original, whereas the consequence of probate was, that the original should be consigned to the archives of the Court that proved it. This was at length compromised, and the practice introduced of delivering out the will, when necessary, upon security to return it.

At

Upon general principles, there is no question, that lands in Tennessee must, in all respects, be