did not sit in the cause, being disqualified by the Act of Assembly.

NOTE — It will be seen by reference to this same case, 5 Hay., 101, that Judge Roane afterwards concurred with Judge Haywood in his opinion, that the tenant was estopped to set up title against his landlord. — ED.

except as to the estoppel of the tenant to set up a title against his landlord, and upon this point he took time to advise.

The grant of Phillips relates to the date of the entry, 7179, if it be a special entry. If special, it is made so by reference to the entry, 7178. What is the meaning of the term opposite? Does it refer to the mouth of the creek, or to the land entered? It is to join Bushnell and Dobbins on the north. Would it be more precise to say, also, that the land entered should be opposite Shelby's tract, which is of greater extent than that of Bushnell and Dobbins? If referred to the land this term is of no use; because it creates no specification more pointed than was already made. If referred to the mouth of the creek, they have an operative influence in the description. It is too unsafe to say that any reliance ought to be placed on the locator and surveyor being the same person, for then his actions, and not the entry would be the standard. Nor can his plat and certificate be relied on, made soon after these entries, for These are not recorded in public books, which those concerned may resort to for information. Nor can Dougherty's possession avail anything; for that may cure an uncertainty, but not remove a certain entry from its proper place. Supposing it doubtful which of the two creeks were meant, these or such like circumstances might have fixed it to either. Of the same character is the recognition of the neighborhood. "Opposite to Isaac Shelby's 5000 acre tract," has also this advantage, which, though far from being decisive, weighs something; it refers grammatically to the creek, which is the last antecedent. That, however, ought *Page 157 not to prevail, if, by any certain sign, it can be perceived that in meaning it refers to the term land. Search, then, for that sign; it would not be rendered more precise, such reference would be of no use, it would impair the text. If referred to the creek, it has a plain and substantial meaning, very material in this cause. The latter construction ought to be adopted. Nothing is said in the exceptions concerning John's survey laid down in the plat. Perhaps it was an older entry than 1797, and was not known to the locator of 7178, when he made it. Again, the survey may as well on the upper creek join Bushnell and Dobbins in part, as that laid on the lower creek; also, by extending into John's tract, it may lie on both sides of the creek; and what evidence is there that that was not the intent of the entry? Who can say the locator knew of this claim when he made the entry? Again, the 1000 acres may adjoin the 640 laid on the upper creek, above it, and run off on both sides for complement. But, on the lower creek, which is the upper side; the north or east boundary? The creek does not cross either. Here is no creek on both sides of which the 1,000 acres centre. If the length was not known to the locator nor the mouth, neither might he have known of John's claim. If he knew both the length and mouth he could not have meant this creek. Dougherty's possession, what effect would it have? He was safe by a grant before the commencement of the conflicting claim. That would be the case whether his survey were made upon the right place or not. It does not prove that he was upon the right place. I am constrained to believe the survey is misplaced. The grant of the defendant, which came out before that of the plaintiff, is prior to and better than that of the plaintiff, which can not refer to an entry so as to relate to it unless that entry covers the place which also is covered by the grant. The entry, in order to be special, ought to be such as will, by inspection, show *Page 158 to one acquainted with that part of the country where it is intended to be that it does lie there. It need not be as exactly described as a survey will describe it; it is sufficient if the place of beginning be specified, or some spot to be included or touched, or which is to form its boundary or part of it, and the objects called for be found. The survey will ascertain the rest, running to the cardinal points where not obviated by elder claims, and taking the direction which the entry or some circumstance in it may point out. Not regarding the centrality of the object, nor laying; the lands equally on both sides of a watercourse, unless specially directed in the entry; and then, not so as to depart from the cardinal points. If there be a general call to He on both sides, there ought in the survey to be a substantial compliance, though there need not be an equality on both sides. The verdict, therefore, ought not to be set aside on any of the preceding grounds.

But is the defendant estopped by his former tenancy under the plaintiff from denying the title of the lessor of the plaintiff? One who has acted as tenant ought not to set up the title of a third person. For the tenant derives his title from the landlord. 1 Term E. 760, in a note. He can not question his landlord's title, but must give up the possession. 2 Caines, 215; 1 Caines, 444; 2 Peake, 318; 1 T. 4; 7 T. 491. A lessee shall not be suffered to defend in ejectment against his own landlord on a supposed defect of title, 2 Bl. 1261; 3 Johnston, 223. What is the reason of all this? The prevention of unfair dealing is the object of this rule. It is founded upon the anxious wish of the law to defeat the violations of good faith, and to preserve the confidence amongst men which faithless violations of engagements annihilates. The tenant, before he exerts any intermediate title to himself, not derived under his landlord, must place his landlord, as to the possession, in the state in which he found him. The verbal lease for five years, if not good in law to vest the term in the *Page 159 defendant, still was an agreement under which the defendant took possession. Such remnant of the contract remains good as is sufficient to prevent making any use of the possession not contemplated between the parties, or any use of it that will be detrimental to the landlord. He ought to restore the possession to his landlord, and place him instatu quo.

For this reason the verdict ought to be set aside, that this evidence may be received.