Mr Justice M’Lean
delivered the opinion of the Court.
. An action of ejectment was brought by M’Call and others against Boardman and others, in the district court of the United States for the western district of Virginia, to recover eight thousand acres of land. On the trial, certain exceptions were taken to points adjudged by the court in behalf of the plaintiffs, and against the defendants; and these points are now ’ brought before this court by writ of error.
The first exception' taken by the plaintiffs in error, is found in the following statement in the bill of exceptions.
“ For
the purpose of showing that one of said marked trees was not a corner of one of said tracts, that is to say, was not the corner represented on the said draught by the letter A as a corner of .John Young’s four thousand acres, the defendants’ counsel offered to introduce a witness to prove that on the trial' of a former action of ejectment, brought by the present lessors of the plaintiffs, against some óf the defendants in the present action, to recover the. land now in controversy; a witness examined on that trial, who is since dead, swore that an anciently marked corner tree was fouiid by him at said point A of a different kind of .timber from that called for in Young’s patent;
but the evidence, as offered, was rejected by the court as inadmissible.”
No part of- the survey of Young is -involved in the present controversy; and with several other surveys, it was only laid down by the.surveyor, as by showing certain connexions, it might conduce to identify the land claimed by7 the plaintiffs.
• As the testimony of the witness referred to was not given between the same parties, his statement, if admissible, could only be received as hearsay.
That boundaries may be proved by hearsay testimony, is a rule well settled; and the necessity or propriety of which is not how questioned. Some difference of opinion may exist as to the application of this rule, but there can be none as tp its legal force.
Land marks are frequently formed of perishable' materials, which pass away with the generation in which they were made. By the improvement of the country, and from other causes, they are often destroyed. ' It is therefore important, in many cases, that hearsay or reputation should be received to establish ancient boundaries: but such testimony must be pertinent, and material to the issue' between the parties. If it have no relation to the subject, or if it refer to1 a fact which is immaterial to the point of inquiry, it ought not to be admitted.
In the present case, the plaintiffs supposed, that by exhibiting the plat of Young’s survey in connexion with others, it might tend, in some degree, to identify the land claimed by them; and the corner designated on the plat by the letter. A is one of the corners of Young’s survey. The official return of the surveyor, in which the' corner trees were specified and-the lines with which the corner is connected were laid down, being before the jury, was relied on by the plaintiffs to establish this as the corner .called for in Young’s survey:
- The - hearsay'testimony was Offered, not to contradict any fact stated in the return Of the surveyor, but to prove’ that .on a certain occasion, a person, in his lifetime, but deceased, at the trial, had said that he found an anciently marked corner tree at -the point A of a different kind of timber from that called for in Young’s patent. This individual did not say that he was acquainted with the lines claimed as Young’s survey, nor that this was his corner.
If the fact as to this tree had been- admitted, what effect could it have had in the cause. It did not disprove a single fact reliéd ón to establish the corner. How near this tree stood to the trees fiAmd by the surveyor, does not appear. It may Have been marked as pointing to the cortf&y as is often done by surveyors; or it may have been a corner to an adjoining or conflicting survey. The existence of this marked tree may be accounted for in various ways;, and its existence is in no respect, so far as appears from the bill of exceptions, incompatible with the facts proved by the plaintiffs. How then can the fact be considered as material. It sheds no light on the matter in controversy. Disconnected as ,the mere fact of 'a marked tree not called for in Young’s patent at the point A seems-to have been with the testimony in the cause; rt is not perceived how it could have tended to influence the verdict of the jury. From the isolated fact, the .jury could have drawn no.inferences against th 3, facts proved by the plaintiffs. There was, therefore,- no error in the rejection of the evidence offered.
The court instructed the jury that the grant to the plaintiffs, which wvas given in evidence, -was a complete appropriation of the land therein described, and vested in the patentee the title; and that any defects in the preliminary steps by which it was acquired, were cured by the grant.”
There can be no doubt of the correctness of this instruction. This court have repeatedly decided, that at law, no facts behind the patent can be investigated. A court of láw has concurrent jurisdiction with a.court of equity in matters of fraud; but the defects in an entry or survey cannot be taken advantage of .at law- The .patent appropriates the land, and gives the legal title .to the patentee. The district court said nothing more than this; and it w;as justified in giving the instruction by the uniform decisions of this court.
Titles acquired under sales for taxes, depend upon different principlesj.and these are the titles-to which some of the.authorities cited in the argument refer. Where an individual claim? land under a tax sale, he-must, show that the substantial requisites of the law have been observed; but this is never necessary when, the claim rests on a patent fr.om the commonwealth. The preliminary-steps may be investigated in chahcery, where
an elder equitable.right is asserted; but this cannot be doné at law.
At the reauest of the plaintiffs, the -court also instructed the jury, “that a. grant is a title from its date, and conclusive against all claimants whose.rights aré not derived under a previous'grant to that of the lessors of the plaintiffs;” “and that it. does not affect the validity of said grant, if it appears that the entry, on which the survey upon which the grant purports to have been issued, contained other or different land. from that actually surveyed.” This instruction, involves the same principle as the one which precedes it! If the grant appropriate the land, it is only nécessary for the person who claims under it to identify the land called for.
Whether the entry was made in legal form, or the survey was executed agreéably to the calls of the entry, is not a matter which can be examined at law. Had the defendants relied on the statute of limitations, this instruction would have been erroneous; but no such defence was set up by them..
The defendants’counsel requested the court to give the following- instructions:-
1.
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Mr Justice M’Lean
delivered the opinion of the Court.
. An action of ejectment was brought by M’Call and others against Boardman and others, in the district court of the United States for the western district of Virginia, to recover eight thousand acres of land. On the trial, certain exceptions were taken to points adjudged by the court in behalf of the plaintiffs, and against the defendants; and these points are now ’ brought before this court by writ of error.
The first exception' taken by the plaintiffs in error, is found in the following statement in the bill of exceptions.
“ For
the purpose of showing that one of said marked trees was not a corner of one of said tracts, that is to say, was not the corner represented on the said draught by the letter A as a corner of .John Young’s four thousand acres, the defendants’ counsel offered to introduce a witness to prove that on the trial' of a former action of ejectment, brought by the present lessors of the plaintiffs, against some óf the defendants in the present action, to recover the. land now in controversy; a witness examined on that trial, who is since dead, swore that an anciently marked corner tree was fouiid by him at said point A of a different kind of .timber from that called for in Young’s patent;
but the evidence, as offered, was rejected by the court as inadmissible.”
No part of- the survey of Young is -involved in the present controversy; and with several other surveys, it was only laid down by the.surveyor, as by showing certain connexions, it might conduce to identify the land claimed by7 the plaintiffs.
• As the testimony of the witness referred to was not given between the same parties, his statement, if admissible, could only be received as hearsay.
That boundaries may be proved by hearsay testimony, is a rule well settled; and the necessity or propriety of which is not how questioned. Some difference of opinion may exist as to the application of this rule, but there can be none as tp its legal force.
Land marks are frequently formed of perishable' materials, which pass away with the generation in which they were made. By the improvement of the country, and from other causes, they are often destroyed. ' It is therefore important, in many cases, that hearsay or reputation should be received to establish ancient boundaries: but such testimony must be pertinent, and material to the issue' between the parties. If it have no relation to the subject, or if it refer to1 a fact which is immaterial to the point of inquiry, it ought not to be admitted.
In the present case, the plaintiffs supposed, that by exhibiting the plat of Young’s survey in connexion with others, it might tend, in some degree, to identify the land claimed by them; and the corner designated on the plat by the letter. A is one of the corners of Young’s survey. The official return of the surveyor, in which the' corner trees were specified and-the lines with which the corner is connected were laid down, being before the jury, was relied on by the plaintiffs to establish this as the corner .called for in Young’s survey:
- The - hearsay'testimony was Offered, not to contradict any fact stated in the return Of the surveyor, but to prove’ that .on a certain occasion, a person, in his lifetime, but deceased, at the trial, had said that he found an anciently marked corner tree at -the point A of a different kind of timber from that called for in Young’s patent. This individual did not say that he was acquainted with the lines claimed as Young’s survey, nor that this was his corner.
If the fact as to this tree had been- admitted, what effect could it have had in the cause. It did not disprove a single fact reliéd ón to establish the corner. How near this tree stood to the trees fiAmd by the surveyor, does not appear. It may Have been marked as pointing to the cortf&y as is often done by surveyors; or it may have been a corner to an adjoining or conflicting survey. The existence of this marked tree may be accounted for in various ways;, and its existence is in no respect, so far as appears from the bill of exceptions, incompatible with the facts proved by the plaintiffs. How then can the fact be considered as material. It sheds no light on the matter in controversy. Disconnected as ,the mere fact of 'a marked tree not called for in Young’s patent at the point A seems-to have been with the testimony in the cause; rt is not perceived how it could have tended to influence the verdict of the jury. From the isolated fact, the .jury could have drawn no.inferences against th 3, facts proved by the plaintiffs. There was, therefore,- no error in the rejection of the evidence offered.
The court instructed the jury that the grant to the plaintiffs, which wvas given in evidence, -was a complete appropriation of the land therein described, and vested in the patentee the title; and that any defects in the preliminary steps by which it was acquired, were cured by the grant.”
There can be no doubt of the correctness of this instruction. This court have repeatedly decided, that at law, no facts behind the patent can be investigated. A court of láw has concurrent jurisdiction with a.court of equity in matters of fraud; but the defects in an entry or survey cannot be taken advantage of .at law- The .patent appropriates the land, and gives the legal title .to the patentee. The district court said nothing more than this; and it w;as justified in giving the instruction by the uniform decisions of this court.
Titles acquired under sales for taxes, depend upon different principlesj.and these are the titles-to which some of the.authorities cited in the argument refer. Where an individual claim? land under a tax sale, he-must, show that the substantial requisites of the law have been observed; but this is never necessary when, the claim rests on a patent fr.om the commonwealth. The preliminary-steps may be investigated in chahcery, where
an elder equitable.right is asserted; but this cannot be doné at law.
At the reauest of the plaintiffs, the -court also instructed the jury, “that a. grant is a title from its date, and conclusive against all claimants whose.rights aré not derived under a previous'grant to that of the lessors of the plaintiffs;” “and that it. does not affect the validity of said grant, if it appears that the entry, on which the survey upon which the grant purports to have been issued, contained other or different land. from that actually surveyed.” This instruction, involves the same principle as the one which precedes it! If the grant appropriate the land, it is only nécessary for the person who claims under it to identify the land called for.
Whether the entry was made in legal form, or the survey was executed agreéably to the calls of the entry, is not a matter which can be examined at law. Had the defendants relied on the statute of limitations, this instruction would have been erroneous; but no such defence was set up by them..
The defendants’counsel requested the court to give the following- instructions:-
1. “ The name of the county being mentioned in the aforesaid patent, as that in which the land thereby granted was situated, the píaintiffs are not at liberty to prove by parol that the land lies in a different county.” ■
2. “ As the said patent states the land granted to lie-in the county of Monongalia, the patentees, and those deriving title from-them, can only jecov.er land in that county; and cannot, by force of the other'term's of description • used in the patent, recover land in the county -of Harrison at the date of the patent.”
3. “ It appéaring from said plat and certificate of survey, upon wh;ch the patent is-founded, th.at the survey was made in the county of Monongalia, and it appearing from the evidence introduced on the part of the plaintiffs to identify the land, that it did lie, at the time of the survey, in the county of Hárrison; the patent is void, because the survey was made without authority.”
4. “If various-marked.llnes are found corresponding with the same call of the patent, the mere coincidence of any one’
of those marked lines with the call off the patent, does not establish that lin.e, as a line called for in the patent.”
The point's raised by these instructions, having been substantially decided by this court in the case of Stringer’s Lessee v. Young, 3 Peters, 320, they are abandoned by the counsel for the plaintiffs in error. In that case, these questions were •fully investigated, and they need not be again examined.
The following instructions were also requested of the court by the defendants’ counsel, and refused.
5.
“
If there are no calls in the patent justifying the location off the land granted, as contended for by the plaintiffs, they cannot succeed in establishing -their claim, by relying on extrinsic evidence. ”
This instruction was refused, and this court think rightfully. It asked the court below to presume against the facts in the case, and to found an instruction upon the presumption thus raised. The calls of the patent, and the official survey and report of the surveyor were before the jury. By these it appears,“that corner trees were called for, and the land was stated to lie near a-large branch of French Creek, and, to adjoin lands of George Jackson on the south. The eourse.and distance from corner to corner were also laid down on the plat, and the trees called for as.corners. Was the district co.urt, then, bound, in opposition to these facts, to instruct the jury; hypothetically, that
“
iff there were no calls in the said patent, justifying the location of the land granted,” &c. There were'such cálls in the patent, and it was -in evidence, before the, jury; any in-' gtruction, therefore,, hypothecated on theabsehcéof such calls, could only tend to confuse or mislead the jury, and the court committed no error in refusing it.
Where, from the evidence, the existence.of certain facts may be doubtful, either from Want of certainty in the- proof, or by reason of conflicting evidence, a court may be called to give instructions, in reference to a supposed state of facts. But this a court is never bound to do, where the facts are clear and uncontradicted.
6; “ Proof that the land claimed in this action was surveyed for the patentees, by evidence contradicting the calls of the patent, does not establish the right of the patentees, and of those claiming under them. ”
This instruction, taken as an abstract proposition, may be true; and yet the court did not err in refusing to give it. The"' •contradiction supposed was in the admission of proof that the land covered by the patent is in the county of Harrison, when the patent calls for. it to lie in the county ’of Monongalia.
That certain calls in a patent may be explained or controlled by other calls was settled, and in reference to this very point, by this court, in the case of Stringer’s Lessee v. Young, before referred to. If .the point had not been so adjudged, it would be too clear,- oh general principles, to admit of serious doubt.
The entire description in-the patent must be taken, and the identity of the land ascertained, by a reasonable construction of the language used. If there be a repugnant call,- which by the other calls in the patent clearly appears to have befen made through mistake, that does not make void the patent. But if the land granted be so inaccurately described as to render its identity wholly, uncertain, it is admitted that the grant is void.' This, however, was not the case of the patent under consideration. Its calls áre specific, and,- taking them all together, no' doubt can exist as to. the land appropriated by it. The call for the county may be explained, either by showing that it was made through mistake, or that,.under'the circumstances which existed at the time of the survey, it was not inconsistent with the other calls of the patent.
This would not be going behind the patent to establish it, fqr its calls fully identify the land granted; but to explain an ambiguity or doubt which arises from á certain call in the patent. This principle applies, under some circumstances, to the construction of all written instruments. The meaning of the parties must be ascertained by the tenor of the writing, and not by looking at a part of it; and if a latent ambiguity arise from the language used, it may be explained by parol.
7. “ An entry in a county which is afterward-'^divided, does not, after the division, authorise a survey in the original county, if the land falls in the new county.’?
If this instruction laid- down. the.law correctly, yet it do.es not show that the plaintiffs below had no legal right to recover. The point raised by it is behind the patent; and that, as before, stated, cannot be investigated in an action of ejectment.' To
entitle the plaintiffs to a recovery in the action of ejectment, they had nothing to do but to identify the land called for in their patent. This being done, it is not competent for the defendants, by way of invalidating the plaintiffs’legal right, to .show irregularity in the entry or survey on which the,patent was issued. In the case of Stringer’s Lessee v. Young, the entry and survey were made as stated in this instruction, and yet this court sustained the patent.
The court below, it seems, did instruct the jury, that “if a land, warrant be entered in the office of the surveyor of a particular county, and,.before the. same be surveyed, the territory in which the land located lies shall be erected into a new county, and the survey and grant-afterwards effected describe the lands to be situated in the former county, the grant is not void; and the plaintiffs may show by parol evidence, extrinsic of the grant, and not inconsistent with'its other descriptive calls, that the land lies within the new county.”
This instruction is sustained substantially in the principles laid down by this court, in the case above cited. There are, indeed, very few points raised in this- cause, which were not -decided in the case of Stringer’s Lessee v. Young. The questions in that cause arose under Young’s patent; which was issued under precisely the same.circumstances as.the one under which the plaintiffs claim.
But if this point had not been settled in the case referred to, all dóubt-would be removed by a reference to an' act of the .Virginia legislature, passed in 1785, entitled an “actconcerning the location of certain warrants, upon' waste and unappropriated lands itv the counties of Greenbriar, Harrison and Monongalia.” _
In this-act it is provided, by the third ‘section, «“that all surveys heretofore made in either of the aforesaid counties, by virtue of the first location, shall be good and valid; ahy act to the contrary notwithstanding.”
In the, bill of exceptions it is stated, that evidence was relied on by the defendants, to “ prove that the various marked lines, represented by the draught and report of the surveyor, and claimed-bythe plaintiffs to belines of the land in controversy, and of .various other tracts désignated on the draught,, were not actually run or marked as lines of the land in controversy,-and
of the other tracts laid down, but had been run and marked by Henry Fink, a deputy surveyor of Monongalia, who then resided in the county of Harrison, with the view of laying off the greater part of the country represented on the plat into surveys of about one thousand acres each; and that he was employed and paid for that purpose by the persons for whom the said plats and certificates of survey were afterwards made; that after the said lines had been so marked and Seen, the said plats and certificates were made out by protraction; not-by the said Henry Fink, but by some other person or persons not authorised by law; that said plats and certificates of survey were never recorded in the surveyor’s office of Monongalia county, nor there filed; but were surreptitiously returned to-the register’s office and patents obtained thereon. ”
It does not appear from the .bill of exceptions, that any evidence was offered by the defendants which was rejected by the court, to sustain this, allegation of fraud. Nor does if appear that any specific instructions were asked of the court on any evidence before the jury, conducing to prove the facts here alleged. The statement can only be understood to refer to the course of argument which the defendants’ counsel in the court below deemed it their duty to. pursue, before the jury; and which forms no part of the case now before the court. Other parts of the bill-of exceptions contain a statement of various grounds taken in the defence below; but as no instructions to the jury were requested on the points thus made, they form no ground for a revision of the proceedings by'a writ of error.
On a careful consideration of the points made in the bill Of exceptions, this court are opinion that there is no error in the judgment of the court below; and that the judgment must, therefore, be affirmed, with costs.