Wilde, J. *
The Rail Road Corporation, demandants in the first of these actions, derive their title to the demanded premises by a deed from Robert P. Tolman and Mary his wife, in her right, bearing date May 7th 1833, who, as was proved or admitted at the trial, were lawfully seized in fee of a parcel of upland on Washington Street, and of the flats legally appurtenant thereto, prior to the year 1822 ; which, according to former decisions of this court, included the demanded premises. But it was proved at the trial, that on the 24th of August in that year, Johnson Jackson, (the father of Mrs. Sparhawk, one of the tenants,) E. Tuckerman, T. Brewer and Robert P. Tolman, agreed to run out the divisional lines of their lots over the flats, and that they were so run as to include the demanded premises within the flats belonging to the said Johnson Jackson ; that these lines were agreed to by the parties ; and that stakes were driven down in the mud, as the boundaries of their respective lots. There was no evidence to prove that these conventional lines were ever questioned previously to the conveyance from the said Tolman and wife to the demandants.
Upon these facts, the tenants contend that nothing passed by the deed of Tolman and wife to the demandants ; the grantors not being in possession of the premises at the time of the grant. And we are of opinion, that this ground of defence is clearly sustained by the evidence reported. By the agreement of the parties, the conventional lines were established as the true divisional lines of their lots, so far as they could by law be established by a parol agreement. From the time of that agreement, the possession of [475] the flats demanded must be considered as being and continuing in Jackson and his heirs. And their possession was clearly adverse to the claim of Tolman and his wife. And they acquiesced in this adverse possession. They were therefore dispossessed and disseized ; and although this was in consequence of their own consent, yet they had no right in the premises besides a right of entry, or a right of action, which could not he legally conveyed to a purchaser.
Judgment Jor the tenants.
In the case of Mary Tolman against the same tenants, the same flats are demanded ; and the first question is, whether the conventional line of August 1822 is not conclusive as to the title, by way of estoppel. This question has been much discussed in the State of New York, and was very fully considered by the court of errors, in the case of Mams v. Rockwell, 16 Wend. 285. And the judgment of the supreme court was reversed by the concurring opinions of all the members of the court, (twenty-one being present,) with but one dissenting voice. In that case, it was decided, that where lands are described in a deed conveying the same, so that the location of the tract can be ascertained with certainty, the owner may assert his right to hold according to the true boundaries of his lands, although an encroachment has been made upon him by the owner of an adjoining tract, and though a line has been maintained by the occupant, in pursuance of such encroachment, and has been acquiesced in by the party encroached upon, for eleven years, if the lands in dispute are in a state of nature, and no other occupation has been had of them than the cutting down and carrying away of trees and timber ; but that if, during such acquiescence, expensive improvements have been made by the occupant upon the premises in dispute, the owner would be estopped from setting up the true line.
In several cases, however, the supreme court in New York have decided, that where the owners of two adjoining lots expressly agree to settle an uncertain or disputed line between their respective lots, the parties having full knowledge of their rights, [476] and the agreement being followed by occupation for a long time, and valuable improvements having been made on the land in dispute, such an agreement, under such circumstances, will conclude the parties, although it may be clearly shown that the conventional line did not conform to the true line. But in almost all the cases in which this principle is recognized, there had been an occupation, in pursuance of the agreement, for more than twenty years. And although these decisions are not overruled by the final decision of the case of Adams v. Rockwell, yet the principle on which some of them were decided is certainly questioned in the opinions delivered by the chancellor and another member of the court of errors. In this Commonwealth and in Maine, such a parol agreement, not followed by valuable improvements, has been held to be evidence of the accuracy of the line thereby established; though it is not conclusive to prevent either party from showing that it was settled erroneously. It was so decided in Whitney v. Holmes, 15 Mass. 152, and in Gove v. Richardson, 4 Greenl. 327. And the same doctrine was laid down by Story, J. in Wakefield v. Ross, 5 Mason, 16. In the latter case, it appeared that the owners of two adjoining lots of land had agreed to erect a fence on what was supposed to be the true boundary, and that the possession continued according to that line for twenty years ; and it was held, that in the absence of all counter proof of any other actual boundary, that line ought to be deemed the true one.
I.i these cases, the question of estoppel was not discussed and considered, and whether, if considered, it would have altered the decisions, it is not necessary to decide.
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Wilde, J. *
The Rail Road Corporation, demandants in the first of these actions, derive their title to the demanded premises by a deed from Robert P. Tolman and Mary his wife, in her right, bearing date May 7th 1833, who, as was proved or admitted at the trial, were lawfully seized in fee of a parcel of upland on Washington Street, and of the flats legally appurtenant thereto, prior to the year 1822 ; which, according to former decisions of this court, included the demanded premises. But it was proved at the trial, that on the 24th of August in that year, Johnson Jackson, (the father of Mrs. Sparhawk, one of the tenants,) E. Tuckerman, T. Brewer and Robert P. Tolman, agreed to run out the divisional lines of their lots over the flats, and that they were so run as to include the demanded premises within the flats belonging to the said Johnson Jackson ; that these lines were agreed to by the parties ; and that stakes were driven down in the mud, as the boundaries of their respective lots. There was no evidence to prove that these conventional lines were ever questioned previously to the conveyance from the said Tolman and wife to the demandants.
Upon these facts, the tenants contend that nothing passed by the deed of Tolman and wife to the demandants ; the grantors not being in possession of the premises at the time of the grant. And we are of opinion, that this ground of defence is clearly sustained by the evidence reported. By the agreement of the parties, the conventional lines were established as the true divisional lines of their lots, so far as they could by law be established by a parol agreement. From the time of that agreement, the possession of [475] the flats demanded must be considered as being and continuing in Jackson and his heirs. And their possession was clearly adverse to the claim of Tolman and his wife. And they acquiesced in this adverse possession. They were therefore dispossessed and disseized ; and although this was in consequence of their own consent, yet they had no right in the premises besides a right of entry, or a right of action, which could not he legally conveyed to a purchaser.
Judgment Jor the tenants.
In the case of Mary Tolman against the same tenants, the same flats are demanded ; and the first question is, whether the conventional line of August 1822 is not conclusive as to the title, by way of estoppel. This question has been much discussed in the State of New York, and was very fully considered by the court of errors, in the case of Mams v. Rockwell, 16 Wend. 285. And the judgment of the supreme court was reversed by the concurring opinions of all the members of the court, (twenty-one being present,) with but one dissenting voice. In that case, it was decided, that where lands are described in a deed conveying the same, so that the location of the tract can be ascertained with certainty, the owner may assert his right to hold according to the true boundaries of his lands, although an encroachment has been made upon him by the owner of an adjoining tract, and though a line has been maintained by the occupant, in pursuance of such encroachment, and has been acquiesced in by the party encroached upon, for eleven years, if the lands in dispute are in a state of nature, and no other occupation has been had of them than the cutting down and carrying away of trees and timber ; but that if, during such acquiescence, expensive improvements have been made by the occupant upon the premises in dispute, the owner would be estopped from setting up the true line.
In several cases, however, the supreme court in New York have decided, that where the owners of two adjoining lots expressly agree to settle an uncertain or disputed line between their respective lots, the parties having full knowledge of their rights, [476] and the agreement being followed by occupation for a long time, and valuable improvements having been made on the land in dispute, such an agreement, under such circumstances, will conclude the parties, although it may be clearly shown that the conventional line did not conform to the true line. But in almost all the cases in which this principle is recognized, there had been an occupation, in pursuance of the agreement, for more than twenty years. And although these decisions are not overruled by the final decision of the case of Adams v. Rockwell, yet the principle on which some of them were decided is certainly questioned in the opinions delivered by the chancellor and another member of the court of errors. In this Commonwealth and in Maine, such a parol agreement, not followed by valuable improvements, has been held to be evidence of the accuracy of the line thereby established; though it is not conclusive to prevent either party from showing that it was settled erroneously. It was so decided in Whitney v. Holmes, 15 Mass. 152, and in Gove v. Richardson, 4 Greenl. 327. And the same doctrine was laid down by Story, J. in Wakefield v. Ross, 5 Mason, 16. In the latter case, it appeared that the owners of two adjoining lots of land had agreed to erect a fence on what was supposed to be the true boundary, and that the possession continued according to that line for twenty years ; and it was held, that in the absence of all counter proof of any other actual boundary, that line ought to be deemed the true one.
I.i these cases, the question of estoppel was not discussed and considered, and whether, if considered, it would have altered the decisions, it is not necessary to decide.
That a parol agreement not in writing is valid, so as to pass any title to lands, cannot be maintained under any circumstances. It may justify the occupation of the lands by the respective parties, in pursuance of the agreement; and by such an occupation under a claim of right, if long enough continued, a legal title may be acquired. And such an agreement and occupation under it, though not continued twenty years, may perhaps, under certain circumstances, operate as an estoppel, according to some of the decisions in the New York cases. Under what circum[477] stances such an agreement would he held to operate in that State, by way of estoppel, seems to be left doubtful by the decision of the court of errors in Adams v. Rockwell. But however this may be, we are well satisfied, that on principles of law well established, it cannot so operate, where the agreement to establish an erroneous line is founded on a mistake ; the parties supposing the line agreed upon to be the true boundary ; nor unless the occupant shall have made improvements on the premises, between the true and the erroneous lines, exceeding in value the value of the land without such improvements ; nor even then, if the occupant making the improvements may be entitled to recover from the owner of the land the value of the improvements. To hold, that under such circumstances a party might be prevented from asserting his title to his land, by the doctrine of estoppel, would be an evasion of the statute of frauds, and against manifest justice. And we think the present case falls within the distinction stated. We have good reasons to believe that the parties, who run out these erroneous lines, supposed them to be the true lines of their respective lots, and that they had no knowledge that they would intersect the lines of other lots further to the northward, belonging to owners who were not parties to the agreement. Mr. Sparhawk has attempted, at great expense, to maintain these conventional lines, which were eventually found to be erroneous, and were so adjudged by the court in several cases ; so that the parties to the agreement in question cannot hold their lands according to the agreement; and to hold them nevertheless bound by the agreement inter sese would be manifestly unjust.
In the second place, whatever improvements have been made by the tenants, they will be entitled to receive the value of them from the demandant, unless she should elect to relinquish her estate according to the provisions of the Rev. Sts. c. 101, §§ 29—34. And thus equal justice will be done to both parties.
This case differs essentially from that of Goodridge v. Dustin (ante, 363). In that case, the divisional line between the lands of the parties was uncertain, and it was submitted to referees, by a rule of court, to settle the line, and their award [478] was held to be conclusive on the parties. That reference was not founded on any mistake as to the true divisional line, and consequently the decision as to the conclusive effect of the award is not applicable to the present case.
Another ground of defence on which the tenants rely is, that the demandant’s right of entry has been tolled by the descent cast upon the children of Johnson Jackson, on his death. By the common law of England, the demandant’s right of entry would be thus tolled, if Johnson Jackson is to be considered as a disseizor. But by St. 32 H. 8, c. 33, it is enacted, that where one person disseizes or turns another out of possession, no descent to the heir of the disseizor shall take away the entry of him who has the right to the land, unless the disseizor has had peaceable possession by the space of five years next after the disseizin, without either entry or claim. The common law, thus amended before the emigration of our ancestors, undoubtedly became afterwards the common law of this Commonwealth. Putney v. Dresser, 2 Met. 585. And as Johnson Jackson died in 1824, less than five years after the making of the conventional line and the occupation conformably thereto, this ground of defence fails.
It was argued, that the St. of H. 8 embraced only disseizins by actual expulsion ; but we think there is no ground for this distinction. The statute was clearly intended to alter and amend the common law, and extended to all disseizins whereby on the death of the disseizor a descent in fee was cast on the heir.