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Clark v. Graham. 6 W.

consideration of the lands conveyed by the deed first mentioned to Smith. This evidence also was rejected by the court. A bill of exceptions was taken to these proceedings by the defendants; and the jury found a verdict for the plaintiff, upon which a judgment was entered for the plaintiff, and the present writ of error is brought by the defendants to revise that judgment.

The principal question before this court is, whether the deed so executed by Massie was sufficient to convey lands by the laws of Ohio. If not, it was properly rejected; if otherwise, the judgment should be reversed. Two objections have been taken to the *execution of this deed ; first, that the power of attorney [ * 579 1 was not duly acknowledged; as every deed is required to be in Ohio in order to convey lands; and if so, then the subsequent conveyance is void, for it is a general principle that a power to convey lands must possess the same requisites and observe the same solemnities, as are necessary in a deed directly conveying the lands. On this objection, which is apparently well founded, it is unnecessary to dwell, as another objection is fatal; that is, the deed of Massie was executed in the presence of one witness only, whereas the law of Ohio requires all deeds for land to be executed in the presence of two witnesses. It is perfectly clear that no title to lands can be acquired or passed, unless according to the laws of the State in which they are situate. The act of Ohio regulating the conveyance of lands, passed on the 14th of February, 1805, provides : “ That all deeds for the conveyance of lands, tenements, and hereditaments, situate, lying, and being within this State, shall be signed and sealed by the grantor in the presence of two witnesses, who shall subscribe the said deed or conveyance, attesting the acknowledgment of the signing and sealing thereof; and if executed within this State, shall be acknowledged by the party or parties, or proven by the subscribing witnesses, before a judge of the court of common pleas, or a justice of the peace in any county in this State." Although there are no negative words in this clause, declaring all deeds for the conveyance of lands executed in any other manner to be void, yet this must be necessarily inferred from the * clause in the absence [* 580 ] of all words indicating a different legislative intent; and in point of fact such is understood to be the uniform construction of the act in the courts of Ohio. The deed then, in this case, not being executed according to the laws of the State, the evidence was properly rejected by the circuit court.

The remaining point, as to the rejection of the evidence of the deed from Smith to Graham, and the proof to show that it was given in exchange for the land in controversy, has not been much

Preston's Heirs v. Bowmar. 6 W. relied on in this court. It is indeed too plain for argument, that if a deed imperfectly executed would not convey any estate or interest in the land, a parol exchange, or parol proof of an intention to convey the same in exchange, cannot be permitted to have any such effect.

Judgment affirmed, with costs.

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Preston's HEIRS v. BOWMAR.

6 W. 580. It is a universal rule that course and distance yield to natural and ascertained objects. But where these objects are wanting, and the course and distance cannot be reconciled,

there is no universal rule that obliges us to prefer the one to the other. Cases muy exist in which the one or the other may be preferred according to the circum

stances. In a case of doubtful construction, the claim of the party in actual possession ought to be

maintained, especially where it has been upheld by the decisions of the state tribunals. 1 * 581 * Error to the circuit court of Kentucky.

This was an ejectment brought in the court below, in which the lessor of the plaintiff claimed title under a patent, de. scribing the survey as “ beginning at an ash in the middle of a line of Glenn's land, and with it north 20 degrees, east 800 poles, crossing three branches to a hoop-wood and sugar-tree corner to Moffat's land, and with a line thereof north 70 degrees, west 100 poles, crossing the creek to a sugar-tree south 33 degrees, west 820 poles, crossing three forks of the creek to two sugar-trees, south 70 degrees, east 300 poles, to the beginning.” The question arising upon the construction of this patent, is stated in the opinion of the court.

This cause was argued by B. Hardin, for the plaintiff, and by Talbot, for the defendant.

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

Whatever might be our opinion (and we wish to be understood as expressing none) if the question in this case were entirely new, it cannot be affirmed that there has been such a clear mistake of con. struction, as that justice and law require us to depart from the decision of the local tribunals. The question here is, whether the third and fourth lines of this patent (following the order of the lines as they are given in the patent) are to be continued upon the courses called for by the patent until they intersect, or whether the fourth line

is to be extended from the beginning to the distance called [ 582 ) for by * the patent, and then the closing line is to be drawn,

so as to strike the termination of the second and fourth lines at the patent distances. In the former case, the fourth line will

Otis v. Walter. 6 W. be longer than the distance called for by the patent; in the latter, the third line will vary from the course called for by the patent. The counsel have stated that the question resolves itself into this, whether the course shall yield to distance, or distance to the course. It may be laid down as an universal rule that course and distance yield to natural and ascertained objects. But where these are wanting, and the course and distance cannot be reconciled, there is no universal rule that obliges us to prefer the one or the other. Cases may exist in which the one or the other may be preferred upon a minute examination of all the circumstances. In the present case, whichever construction is adopted, the plaintiffs will hold a larger portion of land than their patent calls for. We must consider that the construction of the patent is somewhat doubtful. That it is susceptible of two constructions, each of which has some reasons to support it. If it be doubtful, it would seem reasonable not to press the broadest construction against a party who is now in actual possession under a perfectly good legal title. That possession ought not to be ousted without a clear title in the other party, especially where it has been upheld by the state tribunals. This very case, between the same parties, has been already adjudicated in the court of appeals of Kentucky; and that court, upon full deliberation, * decided in favor of the defendant. It would be a [ * 583 ] great mischief for the same title to be in perpetual litigation from the conflict of opinion between the courts of the State and the federal courts; and we therefore acquiesce in the opinion of the court of appeals, upon the ground that the point is one of local law, has been fully considered in that court, and is a construction which cannot be pronounced unreasonable, or founded in clear mistake.

Judgment affirmed. 9 H. 451.

Otis v. WALTER.

6 W. 583. Under the Embargo Act of the 25th April, 1808, (2 Stats. at Large, 499,) if a vessel, not actually

arriving at her port of original destination, excites an honest suspicion in the mind of the collector that her demand of a permit to land the cargo was merely colorable, this is not

& termination of the voyage so as to preclude the right of detention. During the detention of the vessel, if the collector actually believes that the cargo can be

best preserved by landing it, and will do it at his own expense, such a landing is not neces. sarily a conversion.

This cause was argued by
The Attorney-General, for the plaintiff in error.

Otis v. Walter. 6 W.

Webster and Wheaton, for the defendant in error.

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[ *584) * Livingston, J., delivered the opinion of the court,

This is an action of trover brought by the defendant in error against the plaintiff and others, in the court of common pleas, held at Boston, within and for the county of Suffolk, to recover the value of eighty-six barrels of flour, and sundry other articles, in which judgment was recovered against the plaintiff in error, from which judgment there was an appeal to the supreme judicial court, which is the highest court of law in the commonwealth of Massachusetts, in which judgment was rendered against the plaintiffs in error, for the sum of $2,488.75, and costs of suit, and in favor of the other de. fendants. On the judgment, the defendant below, William Otis, has prosecuted a writ of error to this court, under the 25th section of the Judiciary Act of the United States; 1 and we are now to decide whether there was any error in the direction given by the judge before whom this action was tried, and which appears on the bill of exceptions attached to the record in this cause.

The property in question had been seized by William Otis, as deputy collector of the customs for the port and district of Barnstable, in the commonwealth of Massachusetts, under the 11th section of an act in addition to the act, entitled, “ An act laying an embargo on all ships and vessels in the ports and harbors of the United States;" and the several acts supplementary thereto, and for other purposes,

passed the 25th April, 1808. On the bill of exceptions the [ 585 * ] following facts appear. On the part of the * plaintiff, Lynde

Walter, it was proved that the goods mentioned in the declaration were his property ; that they were put on board of the sloop Ten Sisters, at Ipswich, in Massachusetts, bound for the port of Yarmouth; that it was agreed or understood between Walter and Hallett, who was master of the sloop, that the latter was to carry said goods to Barnstable, or to a place called Bass River, in Yarmouth, with orders to sell the same, provided he could obtain a certain price fixed by Walter, otherwise to deliver them to Freeman Baker, of Yannouth; that said sloop, on the 19th November, 1808, cleared out at Ipswich, to proceed to the port of Yarmouth, as expressed in the clearance obtained from the collector at that place; that said sloop proceeded round Cape Cod to Hyannis, in the town and district of Barnstable, and the master applied to William Otis, a deputy collector for that port and district, for a permit to land the cargo, which he refused to give, but ordered him not to discharge any thing from the sloop until he should have a permit so to do. That in a day or two

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1 i Stats. at Large, 85.

Otis v. Walter. 6 W. afterwards Otis came on board the sloop with four men, and seized sloop and cargo, and putting a pilot and crew on board, he sent her to Falmouth, in the district of Barnstable, where Otis had the cargo discharged and stored, in and under a dwelling-house in Falmouth; the master forbidding Otis to meddle with the sloop or cargo. The mas. ter also exhibited to Otis his manifest, and swore to the correctness of the same.

On the part of Otis, it was proved that he was deputy collector for Barnstable — that on the 29th * November, [ * 586 ) 1808, he duly reported to the President of the United States the detention of this sloop and her cargo, under and by virtue of the act above mentioned, which detention was confirmed and approved by the President, on the 8th of December, 1808. That the sloop, when seized, lay at anchor about half a mile from the shore or beach, which is in the town or port of Barnstable, near the centre thereof, six miles distant from Bass River, on which Freeman Baker's house and store are situated, and about five miles from the harbor of Yarmouth. That Freeman Baker's landing is situated above a quarter of a mile from the mouth of Bass River, on said river, in the town of Yarmouth, about six miles and a half by water from where the sloop was seized, and lies to the eastward of Point Gammon. Hyannis, where the vessel was seized, is westward of Point Gammon, and in the town of Barnstable. That the sloop, when seized, had not arrived at the harbor of Yarmouth, but was lying in the port or harbor of Barnstable, about three miles from the harbor of Yarmouth, which lies east northeast from the port of Barnstable, and the sloop, on her way from Ipswich to the place where she was seized, passed the place for which she was cleared, because the weather would not permit the master to get her either into the harbors of Bass River, or Gage wharf, and because he lived near Hyannis, and wished to see his family, and to lay his vessel in a safe place, and to land certain articles of bedding, &c., from the vessel, as it was his intention to strip the vessel when she arrived at Yarmouth. After the master arrived in * Hyannis Bay, it was his intention to land his [ * 587 ] cargo at Gage wharf, which is in the town of Yarmouth; about three rods distant from the line of Barnstable, and about six miles and a half from the place where the sloop was anchored when seized. Between Yarmouth harbor or Bass River harbor, and Hyannis, or Barnstable harbor, where the vessel was seized, is a long point of land, called Point Gammon, extending several miles into the sea, and the distance by the nearest course of the ship-channel, or deep water, from Bass River to Hyannis, is ten miles, and in going from Ipswich to Hyannis, the sloop passed Bass River harbor, or Yarmouth

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