marking of lines between Mead and Dudley in 1800 or 1801, which are unquestionably lines of the deed from Ryan, and it not being pretended that those lines were marked twice, the witnesses fell into the error of deposing that Dudley's deed from Ryan was subsequent to his purchase from Mead, and called for the same division line. I am aware of no principle or authority to prevent the Appellate Court from rejecting so much of the parol evidence for the appellees as is disproved by their own title papers; and cannot doubt, for obvious reasons, the propriety of our doing so. At the same time, I presume, the jury being the proper judges of the credit and weight due to the testimony of the witnesses, that so far as it is not so disproved, it must be taken as true. How, then, does the case stand upon the appellees' own evidence? There has been no attempt on the part of the appellees to prove that the land in controversy is embraced by any calls of the deed from Mead to Dudley, under which they claim. All the lines of that deed, without exception, are therein described by courses, distances and corner trees, and some of them also call for adjacent lines. Without reference to the courses, distances and monuments so called for, the appellees undertake to prove, by the testimony of witnesses, the running and marking of a line or lines of division about the date of the deed; but without any evidence, by blocking the marked trees, or otherwise, that the marks correspond with the date of the deed, though the lines so contended for are the identical boundaries called for by a different conveyance. I shall not question the veracity of the witnesses, nor attempt to weigh their testimony: but I think it clear, that the evidence is not sufficient in law to shew title in the person under whom the appellees claim. 1848. July Term. Pasley V. English & als. 1848. July Term. Pasley 2. English & als. It is obvious that a person claiming property by deed Upon questions of boundary, where the particulars of 1 to control course and distance must be called for in the instrument: but others assert that where a deed describes the land by courses and distances only, and old marks are found on the ground corresponding in age, as nearly as can be ascertained, with the date of the deed, and so nearly agreeing with courses and distances, that they may well be supposed to have been made for its boundaries, the marks shall be taken as the termini of the land. See the cases cited in 4 Phil. Ev. 2 American edit. p. 1379. The Virginia cases seem to have gone still further, and to have given much weight to marked lines of such a description, found on the ground, though corner trees, not to be found or ascertained by evidence, are called for in the instrument, or though inconsistent with points in a plat referred to, especially if comporting with natural objects mentioned. See Shaw v. Clements, 1 Call 429; Herbert v. Wise, 3 Call 239; Baker v. Seekright, 1 Hen. & Munf. 177; Dogan v. Seekright, 4 Hen. & Munf. 125. It will thus be seen that the common law rule, requiring the monuments relied on to be mentioned in the deed, has with us been a good deal relaxed; and the relaxation may probably be attributed to the provision of our land law, directing surveyors, in making surveys of lands to be patented by the Commonwealth, to bound the same by marked trees, where a water course or ancient marked line shall not be the boundary. It thus being made part of the surveyor's duty to mark the lines, if such marked lines are found on the ground, his omission to notice them in his report, or noticing their termini inaccurately, may be placed on the same footing with other omissions or inaccuracies of description in regard to courses, distances, &c., introduced into the patent from the certificate of survey. And this relaxation in regard to patents would naturally extend to deeds consequent upon, or growing out of them, as is the case with all other conveyances. 1848. July Term. Pasley V. English & als. 1848. July Term. Pasley V. English & als. But there are no cases decided by this Court to countenance the idea, that a claimant of the legal title to land under a deed of conveyance, can disregard the calls of his deed, and rely merely upon parol evidence, that at or about the time of his purchase, a division line was run by and between him and his vendor, without any evidence to prove that the marks are found upon the ground and correspond reasonably with the date of the deed, survey or division, or that they were once so found, and have been lost by decay or destruction. I do not mean that such evidence is inadmissible, or merely secondary, (for considerable latitude must be allowed to the evidence adduced in such controversies,) but that it is sufficient in point of law to establish the title claimed; for the law dispenses with corresponding calls in the deed only under the circumstances I have mentioned; and if a recovery were warranted by such defective evidence, the result would be to impair the security of land titles, and the efficacy of the statute against frauds and perjuries. Nor must we lose sight of the distinction between mistakes in the description of the property conveyed by the instrument, and a mistake in the omission to convey all that the parties may have contemplated by a previous executory contract; for though the former may be sometimes corrected, or rather disregarded, the latter is always fatal in a legal forum. And here the evidence of the appellees' witnesses proves, at most, an intention at one time to convey the land in controversy by deed, but the calls of the deed shew that it was omitted, whether by design or mistake is immaterial. As to the other ground of the appellees' claim, that of an adversary possession on the part of Dudley, without title, the evidence of their witnesses tends only to the proof of a brief and fleeting possession of the land in controversy, far short of the prescriptive period derived from the statute of limitations; and the posses sion of Dudley, and of those claiming under him, of other parts of the land, could not divest the legal possession of the part in controversy, derived by Mead, and those claiming under him, from the Commonwealth's patent. Taylor v. Burnsides, 1 Gratt. 165; Overton v. Davidson, Id. 211. In regard to the question presented by the first bill of exceptions, to wit, the admissibility as evidence for the appellant, of the paper found amongst Mead's papers, purporting to be a survey made for him of a tract of land, embracing the land in controversy, I deem it unnecessary to express an opinion. The paper was offered merely to prove that Mead claimed the land in controversy, in order to rebut evidence which the bill states the appellees had previously introduced, tending to prove that Mead had acquiesced in the possession of Dudley, and abandoned any claim to the land in controversy. What the evidence was, which the appellees had so introduced, is not stated. The other bill of exceptions— to the decision of the Court overruling the appellant's motion for a new trial-sets forth all the evidence in the cause; and I think, therefore, we are at liberty to look into it, for the purpose of ascertaining whether the appellant was prejudiced by the rejection of the paper; and it is clear that he could not have been thereby prejudiced, for the appellees' evidence of Dudley's possession was utterly worthless; and in truth, there was no evidence of acquiescence or abandonment on the part of Mead, if that could have availed the appellees any thing. The suggestion, therefore, in the bill of exceptions, of the only ground upon which the paper was offered by the appellant, seems to have been a mere surmise, without any real foundation. I think the Circuit Court erred in refusing to grant the appellant a new trial, and that the judgment ought, therefore, to be reversed. VOL. V.-20 1848. July Term. Pasley 2'. English & als. |