Page:Federal Reporter, 1st Series, Volume 6.djvu/692

 ^80 FEDERAL REPORTBB. �their favor, if by any fair construction of the evidence the verdict can be sustained." This was an action oi ejectaient, brought by the defendants in error to recover 50,000 acres of land, part of which was in the occupancy of the defendants in the court below. The defendants in that court disclaimed as to part of the land, and went to trial as to the residue. The original plaintiffs had the oldest title, and the case depended on the question 'whether their grant covered the land in dis- pute. According to the courses and distances given in the plaintiff's patent, a survey excluded the land in dispute, At the trial in the court below the plaintiffs read the deposition of one Wilson, who made the survey of the 60,000 acres. He testified that the line -which formed the western boundary of the lq.nd intended to be granted was never run or marked. In his office he assumed a course and distance, and terminated the line in his mind at two small chestnut oaks in the wilder- ness, without indicating in his survey just where the two chestnut oaks might be found. No natural objects were given in the survey by which the course and distance might be con- trolled. Wilson had marked two small chestnut oaks as the corner of Eobert Young's tract, and it was these two trees whiph he had in his mind, without indicating his intention on his survey. �The defendants demurred to the plaintiffs' testimony, and the jury found a verdict for the plaintiffs, subject to the judg- ment of the court on the demurrer. The court overruled the demurrer and gave judgment for the plaintiffs. This ruling was reversed on writ of error, the supreme court holding that the defendants in error were not entitled to the lands in pos- session of the plaintiffs in error, beoause neither the patent nor the face of the plat furnished any information by which the corner ealled for in the patent could be controUed. This decision was in effect that the testimony of Wilson was inad- missible to eontrol the grant, and, that testimony out of the record, there was nothing to sustain the claim of the plaintiffs below to the land in dispute. There being no legal evidence in support of the affirmative of the issue in the court below as to the land in dispute, of course the demurrer should have ��� �