JOHN ASHTON ) Caveat in the Land-office, against the
agt ) certificate of Hammond's Right,
PHILIP HAMMOND) February 17, 1795.
The allegation of the caveator is that Hammond's right,
surveyed for the defendant as vacancy, is contained within
the lines of an ancient patented tract in the seizin of the
caveator, called Ayno, granted for 400 acres.
The present case is not that of a man contending that the
land attempted to be taken up as vacancy, is comprehended by
the original running of an ancient grant, tho' now excluded
by the variation of the compass. He insists that the present
running of the course expressed comprehends all the
defendant's pretensions; he rests in the first place on what he
denominates a call in his grant, to carry the sixth line far beyond
the distance expressed; and, in the next place, he insists that
the seventh line shall run the course expressed in defiance of
the defendants evidence, produced to shew the former
running, and the general reputation concerning the termination
of the line.¾How far the call for the line of an elder tract
ought to be gratified has perhaps never been determined;
nor perhaps has the point ever been fairly debated or
understood. The chancellor conceives the following distinction to
be rational:¾Wherever there is such a call, and it appears to
correspond with the other expressions, and with the general
intention of the grant, it shall be gratified, notwithstanding
the line is thereby greatly lengthened, and the quantity of
land increased: But wherever the other expressions in the
grant are such as to induce an opinion that the call was
grounded on a mistake relative to the running of the elder
tract, the call is to be disregarded, and the party confined to
his course and distance. However, in the present case, not
only a line of " Whiteshall" is called for, but there is likewise
a call for a tree, which is also the boundary of an adjacent
grant, describing the very same course. This tree is expressly
proved. On the supposition of its being the true boundary, a
tract of land lying between " Ayno," and " Whiteshall" has
been taken up;—-possession has been held accordingly; and
it is remarkable that, by going to that tree, the sixth line of
" Ayno" is made at least 100 perches longer than the distance
expressed in the grant. If the caveator, notwithstanding,
should insist that both calls may be gratified, viz. that the line
may first go to the tree, and then be continued to the line of
" Whiteshall," it may be asked " wherefore was the tree
called for at all?"—-If that indeed be the true construction of
the grant, the expression ought to have been this " thence E
and by N, by a red oak, to the N. W. line of Whiteshall"—-
But who ever heard of such a call in a grant? The fact is,
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