[579]*579The opinion of the Court was drawn up by
Davis, J.
The land in controversy was in possession of the plaintiff from 1831 to 1836. It was supposed to be one half of the lot, which had previously been divided by his father, during his lifetime, one Harvey acting as surveyor, in running the dividing line. In 1836 the plaintiff sold it to John Stevens; and he conveyed it to the defendant in 1837. The plaintiff purchased the other half of the lot in 1851; and, in 1853, he discovered that the lot was not equally divided by his father. He thereupon claimed to set aside the Harvey line, as having been erroneously run; and, from that time until 1860, when this suit was commenced, there seems to have been a nixed possession of the strip in dispute, the grass having been cut upon it sometimes by the defendant, and sometimes by the plaintiff.
It is contended that the defendant and those under whom he claims were in the exclusive possession from 1831 to 1853, claiming title; and that the defendant made certain improvements by cultivation, and the erection of fences.
Some question seems to have been raised, whether, if the title is found not to have been in the defendant, he can recover compensation for the improvements made by him. But, as this is an action of trespass, the question is immaterial.
The defendant claimed title by disseizin. If he can establish such a claim, it must be on the ground that he was in possession from 1831, including the possession of those under whom he claims, to 1853. For, after that time, his possession was not exclusive.
While the owner of land is disseized, he cannot maintain an action of trespass against the disseizor. Allen v. Thayer, 17 Mass., 299; Bigelow v. Jones, 10 Pick., 161. But after reentry, he can maintain such an action for subsequent trespasses. Putney v. Dresser, 2 Met., 583. And if both parties, as in the case at bar, can be considered in any sense in possession, such mixed possession enures to the benefit of the one having the legal title. Leach v. Woods, 14 Pick., [580]*580461; Slater v. Rawson, 6 Met., 439. Therefore the right of the plaintiff to maintain this-suit, depends upon the question, whether he had any right of entry in 1853.
The plaintiff claims by deeds from Leonard and Sarah Abbott, in which the land is bounded on the west " by land owned by Moses Abbott,” the defendant. These deeds are therefore of no service in determining the locality o'f the dividing line.
In order to do this, by ascertaining what land was owned by Moses. Abbott, the plaintiff, at the trial,. resorted to his own deed to Stevens, and Stevens’ deed to the defendant, given in 1836, and 1837. In these deeds Moses Abbott’s land is described as " the west half of lot number two hundred eighty-four, as surveyed by Israel Johnson and Isaac Boynton, by order of the Court of Sessions.”
The plaintiff then proved that Johnson and Boynton never made any survey of the dividing line; and 'that the Harvey line, which had been the divisional line of occupation, was erroneous, not being in the centre. And he claimed- that, as there was never any such survey by the persons named in. the deed, the whole clause should be rejected, and the line be established by a new survey, giving him one half of the lot.
The defendant introduced evidence showing that there was never any survey of the dividing line, except by Harvey. And he contended that the words "as surveyed” should not be rejected from the deed; and that the parties intended to convey the west half of the lot as surveyed by Harvey, but made a mistake in the description.
The Court ruled that the words "as surveyed” could not be retained, and the other words rejected; but that the whole clause must be rejected,” whatever the intention or mistake might be;” and that "the other descriptive words in the deed must be resorted to alone, to ascertain what land was conveyed to the defendant.”
When the plaintiff conveyed to Stevens, and Stevens to the defendant, they were in possession to the dividing line [581]*581as surveyed by Harvey. And the language employed, if applied to the dividing line, and not to the former survey of the whole lot, would seem to indicate an intention to convey a particular part, as already divided, and not an undetermined part, yet lo he divided. And the intention of the parties, as apparent in'the deed, should govern its construction, if possible. The deed clearly refers to a dividing line, previously surveyed. If the line thus intended by tho parties can he ascertained, that must be conclusive.
What are the boundaries of land conveyed by a deed, is a question of law. Where the boundaries are, is a question of fact. An existing line of an adjoining tract may as well be a monument as any other object. And tho identity of a monument found upon the ground with one referred to in the deed, is always a question for the jury. These propositions have been so often applied in real actions, that no citation of authorities is necessary to sustain them.
And, upon this question of identity, parol evidence is always admissible. Waterman v. Johnson, 13 Pick., 261; Wing v. Burgis, 13 Maine, 111. The acts and declarations of the grantor are important in determining it. Patten v. Goldsborough, 9 S. & R., 47. Subsequent occupation by the parties is generally decisive. Stone v. Clark, 1 Met., 378.
It sometimes happens that the monument found upon the ground corresponds with the description of the monument in the deed in some particulars, and differs from it in others. In such case, the éhole description in the deed is not to be rejected ; and parol evidence is admissible to show whether the monument partially but erroneously described was the one intended. Parker v. Smith, 17 Mass., 413; Clark v. Munyan, 22 Pick., 410; Slater v. Rawson, 1 Met., 450. "It is well settled,” says Dewey, J., in Crafts v. Hibbard, 4 Met., 438, "that parol evidence cannot be introduced to contradict or'control the language o& a deed; but it is equally well settled that latent ambiguities may be explained by such evidence. Facts existing at the time of the [582]*582deed, and prior thereto, may be proved by parol evidence, with the view of establishing a particular line as the one contemplated by the parties, when such line is l^ft, by the terms of the deed, ambiguous and uncertain.”
Thus, if the premises are bounded by land of A on the north, and A’s land is on the south, it may be proved that it was intended as the southern boundary. White v. Eagan, 2 Bay, (S. C.,) 247. So, if bounded on "Broad river,” it may be proved that "Catawba river” was intended. Middleton v. Perry, 2 Bay, 539. Both these cases are cited with approbation in Linscott v. Fernald, 5 Greenl., 496. And the cases previously cited from Massachusetts are to the same effect.
The line, "as surveyed by Israel Johnson and Isaac Boynton,” was the eastern boundary of the laud conveyed.
Free access — add to your briefcase to read the full text and ask questions with AI
[579]*579The opinion of the Court was drawn up by
Davis, J.
The land in controversy was in possession of the plaintiff from 1831 to 1836. It was supposed to be one half of the lot, which had previously been divided by his father, during his lifetime, one Harvey acting as surveyor, in running the dividing line. In 1836 the plaintiff sold it to John Stevens; and he conveyed it to the defendant in 1837. The plaintiff purchased the other half of the lot in 1851; and, in 1853, he discovered that the lot was not equally divided by his father. He thereupon claimed to set aside the Harvey line, as having been erroneously run; and, from that time until 1860, when this suit was commenced, there seems to have been a nixed possession of the strip in dispute, the grass having been cut upon it sometimes by the defendant, and sometimes by the plaintiff.
It is contended that the defendant and those under whom he claims were in the exclusive possession from 1831 to 1853, claiming title; and that the defendant made certain improvements by cultivation, and the erection of fences.
Some question seems to have been raised, whether, if the title is found not to have been in the defendant, he can recover compensation for the improvements made by him. But, as this is an action of trespass, the question is immaterial.
The defendant claimed title by disseizin. If he can establish such a claim, it must be on the ground that he was in possession from 1831, including the possession of those under whom he claims, to 1853. For, after that time, his possession was not exclusive.
While the owner of land is disseized, he cannot maintain an action of trespass against the disseizor. Allen v. Thayer, 17 Mass., 299; Bigelow v. Jones, 10 Pick., 161. But after reentry, he can maintain such an action for subsequent trespasses. Putney v. Dresser, 2 Met., 583. And if both parties, as in the case at bar, can be considered in any sense in possession, such mixed possession enures to the benefit of the one having the legal title. Leach v. Woods, 14 Pick., [580]*580461; Slater v. Rawson, 6 Met., 439. Therefore the right of the plaintiff to maintain this-suit, depends upon the question, whether he had any right of entry in 1853.
The plaintiff claims by deeds from Leonard and Sarah Abbott, in which the land is bounded on the west " by land owned by Moses Abbott,” the defendant. These deeds are therefore of no service in determining the locality o'f the dividing line.
In order to do this, by ascertaining what land was owned by Moses. Abbott, the plaintiff, at the trial,. resorted to his own deed to Stevens, and Stevens’ deed to the defendant, given in 1836, and 1837. In these deeds Moses Abbott’s land is described as " the west half of lot number two hundred eighty-four, as surveyed by Israel Johnson and Isaac Boynton, by order of the Court of Sessions.”
The plaintiff then proved that Johnson and Boynton never made any survey of the dividing line; and 'that the Harvey line, which had been the divisional line of occupation, was erroneous, not being in the centre. And he claimed- that, as there was never any such survey by the persons named in. the deed, the whole clause should be rejected, and the line be established by a new survey, giving him one half of the lot.
The defendant introduced evidence showing that there was never any survey of the dividing line, except by Harvey. And he contended that the words "as surveyed” should not be rejected from the deed; and that the parties intended to convey the west half of the lot as surveyed by Harvey, but made a mistake in the description.
The Court ruled that the words "as surveyed” could not be retained, and the other words rejected; but that the whole clause must be rejected,” whatever the intention or mistake might be;” and that "the other descriptive words in the deed must be resorted to alone, to ascertain what land was conveyed to the defendant.”
When the plaintiff conveyed to Stevens, and Stevens to the defendant, they were in possession to the dividing line [581]*581as surveyed by Harvey. And the language employed, if applied to the dividing line, and not to the former survey of the whole lot, would seem to indicate an intention to convey a particular part, as already divided, and not an undetermined part, yet lo he divided. And the intention of the parties, as apparent in'the deed, should govern its construction, if possible. The deed clearly refers to a dividing line, previously surveyed. If the line thus intended by tho parties can he ascertained, that must be conclusive.
What are the boundaries of land conveyed by a deed, is a question of law. Where the boundaries are, is a question of fact. An existing line of an adjoining tract may as well be a monument as any other object. And tho identity of a monument found upon the ground with one referred to in the deed, is always a question for the jury. These propositions have been so often applied in real actions, that no citation of authorities is necessary to sustain them.
And, upon this question of identity, parol evidence is always admissible. Waterman v. Johnson, 13 Pick., 261; Wing v. Burgis, 13 Maine, 111. The acts and declarations of the grantor are important in determining it. Patten v. Goldsborough, 9 S. & R., 47. Subsequent occupation by the parties is generally decisive. Stone v. Clark, 1 Met., 378.
It sometimes happens that the monument found upon the ground corresponds with the description of the monument in the deed in some particulars, and differs from it in others. In such case, the éhole description in the deed is not to be rejected ; and parol evidence is admissible to show whether the monument partially but erroneously described was the one intended. Parker v. Smith, 17 Mass., 413; Clark v. Munyan, 22 Pick., 410; Slater v. Rawson, 1 Met., 450. "It is well settled,” says Dewey, J., in Crafts v. Hibbard, 4 Met., 438, "that parol evidence cannot be introduced to contradict or'control the language o& a deed; but it is equally well settled that latent ambiguities may be explained by such evidence. Facts existing at the time of the [582]*582deed, and prior thereto, may be proved by parol evidence, with the view of establishing a particular line as the one contemplated by the parties, when such line is l^ft, by the terms of the deed, ambiguous and uncertain.”
Thus, if the premises are bounded by land of A on the north, and A’s land is on the south, it may be proved that it was intended as the southern boundary. White v. Eagan, 2 Bay, (S. C.,) 247. So, if bounded on "Broad river,” it may be proved that "Catawba river” was intended. Middleton v. Perry, 2 Bay, 539. Both these cases are cited with approbation in Linscott v. Fernald, 5 Greenl., 496. And the cases previously cited from Massachusetts are to the same effect.
The line, "as surveyed by Israel Johnson and Isaac Boynton,” was the eastern boundary of the laud conveyed. If Johnson and Boynton never made any survey, there was a' latent ambiguity in the deed. If it should appear that they surveyed the whole lot, on some former occasion, then the words "as surveyed” would be applied to the whole, and would not affect the dividing line, but would leave it to be determined by subsequent occupation. But, if they never made any survey, then the words "as surveyed” might appropriately be applied to the dividing liue ; and, if that line was never surveyed by any one except Harvey, whether the. parties to the deed must have referred to his survey was not a question of law. Because the existing line, as a monument, was, in part, erroneously described, it was not for the Oourt to say that no monument existed to which the description was intended to apply. The question was one of fact, which should have heen submitted to the jury.
Upon the question of disseizin for twenty years or more, claimed by the defendant, from 1831 to 1853, the evidence is. not fully reported. The jury were correctly instructed that such a disseizin would be a defence to the action.
The jury were instructed that, if the defendant had been in possession six years, "and had improved and cultivated the land, this action could not be maintained, unless, before [583]*583the alleged trespass, the plaintiff had entered upon the land but, if the plaintiff, "within six years from the discovery that the line was not in the centre of the lot, entered upon the land, .he might maintain an action for cutting the grass after such entry.”
If the plaintiff was the owner of the land, and had been disseized less than twenty years, he might, after reentry, maintain an action for subsequent trespasses. In such case, it is not easy to perceive how the defendant’s rights in this action could be enlarged by his having " improved and cultivated the land,” before such reentry. And the plaintiff’s right of reentry could not extend " six years from his discovery that the line was not in the centre of the lot,” if before such reentry he had been disseized for twenty years. Nor could he acquire any rights by reentry after the twenty years had expired. School District v. Benson, 31 Maine, 381. If he was disseized, the time when he discovered it was immaterial; as it was immaterial whether he had discovered it at all, if not in season to reenter and purge the disseizin. Poignard v. Smith, 6 Pick., 172.
The defendant requested the Court to instruct the jury, "that if, through an agreement, and occupation under an agreement, between the devisees, and those claiming under them, for more than twenty years, according to the Harvey line, that was the dividing line between the east and west part of the lot, it would be binding on the plaintiff.”
If such agreement and occupation made the line binding, either by disseizin, or by way of estoppel, the requested instruction should have been given.
The question is not, whether it would have been binding upon both of the adjoining owners. If one who is in open, visible occupation, to a known and agreed boundary, sells to a stranger, and afterwards himself purchases the adjoining lot, he may be estopped, as against such stranger, from denying the correctness of such boundary, though his grant- or of the adjoining lot would not have been. See Merriwether v. Larmon, 3 Sneed, (Tenn.,) 345.
[584]*584But if such occupation ivas a disseizin, it was binding on all the parties, after continuing twenty years or more.
Mere occupation, by inadvertence, or mistake, Avithout any intention to claim title, may not be a disseizin ;• as where a fence is erroneously erected not on the dividing line. Lincoln v. Edgecomb, 31 Maine, 345; Brown v. Gay, 3 Greenl., 126. But if, in such case, there is an intention to claim title to the land occupied, though the line is fixed by mistake, it is a disseizin. Otis v. Moulton, 20 Maine, 205. In the case of French v. Pearce, 8 Conn., 439, in'an elaborate opinion by Hosmer, .G. J., it was held, that actual occupation, under claim of OAvnership, though resulting from a misapprehension of the place of the dividing line, Avas a disseizin, sufficient, if continued, to establish a title in the possessor. That case was sustained, and quoted with approval, in Spaulding v. Warren, 25 Vt., 316. The authorities upon this question are collected in 1 Greenl. Cruise, 53, note.)
The intention which is necessary to constitute a disseizin is an intention to claim title. Such intention is no't presumed on the part of a tenant, against his landlord. It. is presumed, even beyond the extent of occupation, if it is under a recorded deed. An intention to commit a wrong, against the lawful owner, implying a knowledge that the disseizor has no right, is never necessary. In nearly all the reported cases of disseizin, the disseizor appears to have occupied, if Avithout legal right, by mistake, either of law, or fact. And if the mistake is of the boundary line, it does not vary the result. Melvin v. Prop. of Locks, &c., 5 Met., 15.
But if this were otherwise, there can be no doubt that exclusive occupation, under a mutual agreement upon a boundary line, though it be erroneous, is such possession as is requisite to constitute a disseizin.
In some of the states, such an agreement is held to be binding and conclusive at once, on the ground of estoppel. Carlton v. Redington, 1 Foster, 291; Kip v. Norton, 12 Wend., 127; Lindsay v. Springer, 4 Har. (Del.) 547; [585]*585Orr v. Foote, 10 B. Monroe, 387; Dudley v. Elkins, 39 N. H., 78.
This doctrine is questioned in other States. But it seems to be everywhere conceded that exclusive possession, under such an agreement, twenty years, or long enough to bar an entry, will establish a title in the possessor, by disseizin, if not by estoppel. Boyd v. Graves, 4 Wheat., 513; Smith v. McAllister, 14 Barb., 434; Wilson v. Gibbs, 28 Penn., 149; Clark v. Tabor, 28 Vt., 222; Holton v. Whitney, 30 Vt., 405. Such was declared to be the law by Judge Story, in Wakefield v. Ross, 5 Mason, 16. And the same doctrine was sustained, upon full consideration, in an opinion by Wilde, J., in B. & W. Railroad Co., v. Sparhawk, 5 Met., 469.
Whether the devisees, of whom the plaintiff was one, made such an agreement, and occupied according to it for twenty years or more, was for the jury to determine, upon the evidence in the case. The question should have been submitted to them, with the instruction requested by the defendant. Exceptions sustained. — Hew trial granted.
Appleton, C. J., Kent, Walton and Barrows, JJ., concurred.
Dickerson, J., concurred in the result.