STANBERRY'S LESSEE v. NELSON, 1 Ohio Ch. 766

Wright, J. The witness is substantially a party to the record and liable for costs. The defendant’s counsel admits that if the witness had been called on the part of the plaintiff, he could object his interest. The interest is direct, the verdict could be used either for or against him. The defendant cannot compel the witness to testify, though if he wave the objection, and call him, he may testify if he please. Ruled out. O. Parish, now moved for anew trial for alleged error in ruling out the auditor’s proceedings.

The land is described on the- auditor’s books and maps in the same way, and the sections are numbered up to 40. The only evidence by the plaintiff, was the patent to Cazoue, and the tax proceedings showed the title in him. II. Stansberry, contra, cited Swan's L. Laws 35, 68. The defence then offered the proceedings of the auditor with a deed to make out a tax title. The land was described in these proceedings as one hundred and fifty-eight acres in r. 22, t. 5, sec. 12 and 17, north half. Objected to as insufficient description. Wright, J. The evidence is offered under the act of congress of 1801, (Swan’s L.

Laws 68.) That act only authorized the subdivision into half sections of three hundred and twenty acres, the fractional townships in the 16th, 17th, 18th, 19th, 20th, 21st, 22d ranges. The description here is the north half of sec. 12 and 17, in the 5 t. and 22 r. We may notice the township to be a fractional one, and one that might be subdivided, but can we take judicial notice that it has been divided, and how? We think not. The description of the land, as part of sec. 12 and 17, is too vague and! uncertain to pass any title — there would not probably be such a number as 12 and 17, or 12 ire 17.

We cannot tell which

section is meant. The evidence is ruled out. Verdict for defendant. Wright, J. The plaintiff relied on the demises of Cazoue and Stanberry. Cazoue’s patent was for three hundred and sixteen acres and twenty-four perches, being half

section No 17 west, in township No. 5, and r. 22, of the refugee lands. The defendant sought to make title to one hundred and fifty-eight acres under a tax sale, and offered the auditor’s deed and record. The record showed the land advertised by the following description: iRoswold Wilcox, range 22, township 5,

section 12, half

section 17, one hundred and fifty-eight acres,' and was so sold. This evidence was ruled out .as too vague to convey title to any particular land, though not then accurately presented to the court. The question now.is, was the evidence properly ruled out by the court? The act of congress of 1795, (Swan's L. L. 35) provided for the survey of lands into townships, and the subdivision of the alternate townships into sections of a mile square, or six hundred and forty acres, and for the designation of the sections by progressive numbers, beginning on number one at the northeast

section in the township, and progressing regularly west and east alternately across the township. The whole number of sections in each full township would: be thirty-six. There was no evidence that township b in the' 22d range was one of those divided into sections, but if it was, we are without evidence that the township was entire and contained sec. 12. The act of Feb. 1801, directs the subdivision of the fractional townships in range 22, into half sections of three hundred and twenty acres, and that a plat of the same be returned to the secretary of the treasury. There is no evidence that this was done, except the description in the patent to Cazoue, for half

section 17. How it was subdivided, does not appear. The defendant insists that the defect, if any, affects the plaintiff’s title-as well as the defendant’s. That would be true if it were not for the fact, that the defendants admitted themselves in possession- of the land described in the patent. Without that admission the plaintiff would have been compelled to prove the land covered by his patent, possessed by the defendant, which would have included the subdivision, numbers, &c. Cazoue’s tract was always entered for taxation as r. 22, t. 5, half

section 17, until 1828, when the description was changed to r. 22, t. 5. sec. 12, half

section 17. The patent description is half

section 17 west, which most probably conforms to the law,if run into sections first, and subdivided into halves by central lines north and south; and leads to the impression that the halves retained the number of the section, and were designated as east or west of the division line. The auditor’s description in the sale is ¿half

section 17 in

section 12, and rejects the original numbering of the section, and supposes another progressive numbering of the half sections. This we cannot presume without proof, and none is offered. If the township was so numbered, the land office furnishes the evidence of it, and the fact can be shown — what evidence we have, the patent, the early entries for taxation, are opposed to the defendant’s presumption. But if the half

section were identified, certainty would not still be attained to. One hundred and fifty-eight acres in sec. 17, of three hundred and sixteen acres and twenty-four poles. What part of the tract does the one hundred fifty-eight acres lie in? No one can tell, and therefore it is insufficient: (5 O. R. 458; 3 O. R. 569; 2 O. R. 287; 4Pet. R. 350. Motion overruled.