Stimmel vs. Underwood.-1831. bly have mistaken his legal obligations, or viewing the declarations of the witness, as referring to a mere honorary obligation, whether such declarations, will exclude him from testifying? Now, if these declarations, when made by the witness on the stand, under oath, would not, and ought not, to exclude him, a fortiori, his statements and declarations, not under oath, ought not to exclude him; and even, if at the trial, his belief of his legal or honorary obligations rendered him incompetent, it would not follow that his declarations of such obligations, anterior to the trial, would, or ought to have the same effect: for his notions of his obligations may have undergone a change between the time of the making of such declarations and the trial—and at the time of the trial his mind might be free from all bias, which such belief might be calculated to produce; besides, the establishment of such a principle, would seem to lead to consequences subversive of justice in many cases, for the doctrine assumes, as has been well observed, the truth of uns worn statements, and enables an unwilling witness, ad libitum, to deprive a party of his testimony. In conformity with these views, the cases of 5 Massa. 261, and 8 Massa. 487, were decided. The court are aware of the case of Colston vs. Nichols, decided by the Court of Appeals, under its former organization, 1 Harr, and Johns. 105, in which the decision of the General Court, that evidence of unsworn declarations of a witness were inadmissible to impeach his competency, was overruled but this court cannot accede to the doctrine, that the adduction of such evidence, although it might be calculated to affect the credit of the witness, went to his competency. The first exception having been waived by the appellant's counsel, it does not become necessary for us to express any opinion upon it. JUDGMENT AFFIRMED. VOL. III.-37 Blessing vs. House's Lessee.-1831. PHILIP BLESSING US. JOHN HOUSE'S LESSEE.-December, 1831. In an action of ejectment where defence was taken on warrant, and plots were returned, the defendant offered in evidence a deed for "all that part or parcel of land lying and being in, &c. as has been willed by the said W, (the grantor) to his said daughter, (the grantee) as will more fully show by reference to the said last will and testament, bearing date, &c. for 100 acres, it being designated by the Old Cabin Farm, it being likewise to be taken from that part or parcel of land the said W bought of H, to be laid off by the said W's executors, at his death, for 100 acres ;" and also offered in evidence another deed betweer. the same partics, which purported to confirm the first deed. The second deed described the land by metes and bounds. The two deeds were offered as constituting one valid deed. The first deed was not located on the plots, the second deed was. The will of W was not produced, nor did it appear that his executors had laid off any land for the grantee. HELD, that the first deed was void for uncertainty-could not be read because not located, and that the second deed could not operate as a confirmation of the first. No title paper in an ejectment, where defence is taken on warrant, can be read in evidence, unless it is located. It is an essential attribute of a tenancy in common, that there should be a unity of possession; wherever, therefore, the tenure of the estate intended to be conveyed indicates a holding in severalty, or by particular or specific description, a tenancy in common cannot exist. It is the office and operation of a deed of confirmation, to corroborate and give legal effect to a voidable, and not a void estate. It cannot work upon an estate void at law. APPEAL from Frederick County Court. Ejectment for a tract of land lying in Frederick County, called More Bad than Good, containing 265 acres. The defendant (the present appellant) took defence on warrant, and plots were returned. Issue was joined upon the plea of not guilty. At the trial, the plaintiff offered in evidence the patent for the tract of land called More Bad than Good, granted to William House for 265 acres on the 27th October, 1795. And then proved that the land is duly located on the plots by the plaintiff, agreeably to the courses and distances contained in the patent; that the tract of land called Blessing vs. House's Lessee.-1831. More Bad than Good, has acquired by reputation, and is known in the county as and by the name of The resurvey on More Bad than Good. He then offered in evidence a deed duly acknowledged and recorded from William House, (the patentee) to John House the lessor of the plaintiff, for 76 acres and 25 perches of land, bearing date on the 9th August, 1817; and proved that the said deed is duly located on the plots. The defendant then offered in evidence a deed from Archibald Edmonson to John Holland, dated 19th Dec'r, 1771, for 200 acres of land, called Part of the resurvey on Drunkards not Mistaken; and also for another tract called Grog, containing 54 acres of land, and then offered the deed from John Holland to William House, dated the 2d November, 1793, for the same lands called The resurvey on Drunkards not Mistaken, containing 200 acres, and Grog, containing 54 acres, and proved that said lands are properly located on the plots in this cause. The defendant then offered in evidence the following deed from William House to Mary Harvey: "This indenture made this 9th July, 1817, between William House of, &c., of the one part, and Mary Harvey, daughter of the said W. H. of the other part, witnesseth: that the said W. H. as well for and in consideration of the natural love and affection which he, the said W. H. hath and beareth unto the said M. H., as also for the better maintenance, support, livelihood, and preferment, of her, the said M. H., hath given, granted, &c., and by these presents doth give, grant, &c., unto the said M. H., her heirs and assigns, all that part or parcel of land, lying and being in, &c., as has been willed by the said W. H. to his said daughter M. H., as will more fully show by reference to the said last will and testament, bearing date the 4th July, in the year of our Lord, 1817, for 100 acres of land, it being designated by the Old Cabin Farm, it being likewise to be taken from that part or parcel of land the said W. H. bought of Holland, to be laid off by the said W. H's executors at his death, for 100 acres Blessing vs. House's Lessee.-1831. "This of land, together with all and singular the houses, buildings, &c., unto the said M. H. as aforesaid, or any part or parcel thereof belonging, or in any wise appertaining or therewith commonly held, used, occupied, enjoyed or accepted, reported, taken or known, as part or parcel of, or belonging to the same, and the reversion, and reversions, remainder, and remainders, rents, issues, and profits, of all and singular the said premises with their appurtenances, and all the estate, right, title, interest, property, claim, and demand whatsoever, of him the said W. H. of, in, and to, the said part or parcel of land and premises, and of, in, and to, every part and parcel thereof, with their, and every of their appurtenances. To have and to hold," &c. &c. And also the following deed between the same parties. indenture made the 4th September, 1818, between William House, of &c., of the one part, and Mary Harvey, daughter of the said W. H. of the other part. Whereas the said W. H. did, by deed bearing date on or about the 9th July, in the year 1817, duly executed and recorded, convey or intended to convey to the said M. H. the land and premises hereinafter described and conveyed, and there appearing to be considerable defects in the said deed, from whence doubts have arisen, whether the same be sufficient in law to convey the said land to the said M. H. as thereby intended; to correct all errors and mistakes therein, and confirm the title of the said land in her the said M. H., the said W. H. hath given this deed of confirmation. Now this indenture witnesseth, that the said W. H. as well for the causes above recited, and the natural affection and love, which he, the said W. H. hath, and beareth unto her the said M. H., as for and in consideration of the sum of one dollar, current money, to him in hand paid by the said M. H. at or before the sealing and delivering these presents, the receipt whereof he, the said W. H., doth hereby acknowledge, hath given, granted, &c. and by these presents, doth give, grant, &c. unto her, the said M. H., her heirs and assigns, all that tract or parcel of land lying and Blessing vs. House's Lessee.-1831. being in the county aforesaid, within the following metes. and bounds, it being part of a tract of land called and known by the name of More Bad than Good; beginning for the same, at a white oak tree, standing to the westward of the house where the said W. H. now lives, marked for the end of the eighth line of a tract of land, called The resurvey on House's new design, it being also at the end of the thirty-first line of the said tract of land called More Bad than Good, and running thence, &c.-describing the land by metes and bounds, courses and distances-containing 98 acres of land, more or less, together with all and singular the improvements, &c.; to have and to hold the said tract or part of a tract or parcel of land, and every part and parcel thereof, unto the said M. H. her heirs and assigns, to the only proper use and behoof of her the said Mary Harvey, her heirs and assigns forever." The plaintiff objected to the admissibility of the first deed from William House to Mary Harvey, and the court sustained the objection, and refused to permit the same to be read to the jury. The defendant excepted, and the verdict and judgment being against him, he prosecuted the present appeal. The cause was argued before STEPHEN, ARCHER, and DORSEY, J. Palmer for the appellant, contended, 1. That the court below erred in rejecting the deed of the 9th of July, 1817, when offered in connexion with the deed of September 4th, 1818, both constituting one deed. The question then is, as to the admisability of the first deed-if it was evidence for any purpose, the judgment must be reversed; it can be affirmed only upon the ground of its being an absolute nullity. He insisted that the deed operated as a covenant to stand seised to the use of the grantee, and that a Court of Chancery need not be resorted to for the purpose of enforcing the covenant. The grantor |