Wales, J.,
delivered the opinion of the Court.
The questions suggested by the assignment of errors and to be decided by us, may be comprised in the simple inquiry, did the Superior Court err in instructing the
jury that in determining the length of the front line on Shipley Street, they must be restricted by the number of feet specified in the return and decree in partition ? The substance of the charge to the jury on this point, as set out in the bill of exceptions, is in these
words—“
For the designation and definition of the line as to the length and extent of it on the street referred to, as fixed and ascertained by the partition and decree in the Court of Chancery, was not only material, but was final and conclusive as to that matter in the present action, and could not now be controverted or called in question here, or in any other collateral inquiry or proceeding between the parties to it, or those standing in the legal relation of privies in estate to them, provided they should find the facts proved to be such as the court had before stated to them.” This was, in effect, the statement of the law of estoppel by record, leaving the jury to apply the same to the facts proved in the case.
Henry S. McComb and his co-defendants below, having put in the plea of
liberum, tenementum
of Martha McComb, thereby admitted Schoen’s possession of the
locus in quo,
and also the commission of the acts complained of as a trespass, thus raising the only question whether the small strip of land in controversy belonged to the said Martha or not, and making it incumbent on them to prove her title either by deed or other documentary evidence, or by an actual adverse and exclusive possession of twenty years; inasmuch as under this issue they undertook to show a title in her, which should do away with the presumption arising from the possession of the plaintiff below. 2
Greenleaf on Ev.
626. 2
Selwin’s Nisi Prius
1337.
Besting their defense on the construction of the title papers, it became the duty of the court to inform the jury what was the legal effect of the conveyances and judicial records which had been submitted to them; and this we think was correctly done by the learned judge who delivered the charge.
There is a patent discrepancy between the description contained in the deed of Ferris’ executors and that in the Chancery record of the Shipley Street property. Each gives the courses and distances and the metes and bounds of the lot. The deed describes a line of seventy-one feet and three inches on the street, while the record calls for a line of seventy feet and sixteen hundredths of a foot. There is nothing in the record sent here, or in the title papers, to show that as a matter of fact one description was more accurate-than the other. How then were the jury to determine the true measurement? It does not appear that Martha McComb, or those under whom she claimed, had ever occupied or held actual possession of the land in dispute, or that Schoen, the plaintiff below, or his predecessors, Hyde or Lamborn, had encroached upon it without warrant or authority. It was only, therefore, by the application of the doctrine that the judgment or decree of a court of competent jurisdiction is conclusive on the parties to it and their privies, that a satisfactory result could be reached. In
Stean v. Anderson
4
Harr.
214, it was held that the proceedings and judgment in partition are final and conclusive between the parties and all claiming under them, as to the title to the lands allotted to the several parties. An order of the Orphans’ Court directing a sale of land for the payment of debts, is conclusive as to every matter necessary to the making of such order, and such matter cannot be inquired into collaterally in any other proceeding.
Martin’s Lessee v.
Roach, 1
Harr.
548. See also 1
Houston
334,
Lessee of Short et al. v. Prettyman et al.
This rule can rarely, if ever, work injustice, for it is laid down as a corollary to the principal of estoppel by record, that it is no hardship on any one that he shall be bound by that which would have bound those under whom he claims as to the same subject matter. The reason and policy of the rule are also expressed in the familiar maxim
“interest reipublieae ui sit-finis litium.
The title of McDowell and wife had its immediate ori
gin in the will of Boulden and the decree of partition. The property was conveyed to Boulden by Ferris’ executors whose deed, besides giving the line on Shipley Street in feet and in inches, describes it as ending at Lam-barn’s line on the North. Frances S. McDowell was one of the four devisees named in the will of Boulden, who took his real estate in undivided equal shares as tenants in common. Partition was applied for in Chancery in the usual manner, on the petition of Clark and wife, (the latter being a devisee), the other parties in interest were duly summoned and were represented in court by their solicitor. Commissioners appointed by the Chancellor to divide the real estate among the parties entitled according to their respective shares, made a return accompanied with a survey and plot, allotting to Frances S. McDowell and her heirs, in severalty, “No. 4,” being the lot on Shipley Street, and described in the return as having a front line on that street of a certain length in feet and the fraction of a foot, and terminating at its Northern extremity at the line of Hyde’s land. This return and allotment were approved by the Chancellor, and “ ordered and adjudged to be and remain firm and stable forever.” It is evident from an examination of the title papers at this point, that McDowell and wife took no greater quantity of land in severalty, than was allotted to Frances S. McDowell. The object and purpose of the partition was to divide the whole of Boulden’s real estate among the parties entitled, in equal proportions, so that each devisee might hold a part in severalty. This was done, or at least designed to be done. A surveyor was employed, a survey of each separate division and allotment was made, and the courses and distances, metes and bounds laid down on the plot annexed to the return of the Commissioners. McDowell and wife in the deed to H. S. McComb recite both the conveyance from Ferris’ executors to Boulden with the particular description of the lot therein contained, and also the proceedings in Chancery containing the description returned by the
Commissioners and approved by the Chancellor; and their deed further recites, “ whereas it is the intention of the said parties of the first part hereto by this indenture to convey all their interest in the said above described allotted one-fourtb part of the land and premises aforesaid, to the said Henry S. McComb, his heirs and assigns ;” and concludes by granting to the said Henry S. McComb “ all that the aforesaid described lot or parcel of land situate in the city of Wilmington, with the four substantial brick houses thereon erected.” The title of H. 8. McComb depends on that of his grantors and their deed to him, and he and those claiming under him are concluded from claiming title to any more land than was allotted to Frances 8.
Free access — add to your briefcase to read the full text and ask questions with AI
Wales, J.,
delivered the opinion of the Court.
The questions suggested by the assignment of errors and to be decided by us, may be comprised in the simple inquiry, did the Superior Court err in instructing the
jury that in determining the length of the front line on Shipley Street, they must be restricted by the number of feet specified in the return and decree in partition ? The substance of the charge to the jury on this point, as set out in the bill of exceptions, is in these
words—“
For the designation and definition of the line as to the length and extent of it on the street referred to, as fixed and ascertained by the partition and decree in the Court of Chancery, was not only material, but was final and conclusive as to that matter in the present action, and could not now be controverted or called in question here, or in any other collateral inquiry or proceeding between the parties to it, or those standing in the legal relation of privies in estate to them, provided they should find the facts proved to be such as the court had before stated to them.” This was, in effect, the statement of the law of estoppel by record, leaving the jury to apply the same to the facts proved in the case.
Henry S. McComb and his co-defendants below, having put in the plea of
liberum, tenementum
of Martha McComb, thereby admitted Schoen’s possession of the
locus in quo,
and also the commission of the acts complained of as a trespass, thus raising the only question whether the small strip of land in controversy belonged to the said Martha or not, and making it incumbent on them to prove her title either by deed or other documentary evidence, or by an actual adverse and exclusive possession of twenty years; inasmuch as under this issue they undertook to show a title in her, which should do away with the presumption arising from the possession of the plaintiff below. 2
Greenleaf on Ev.
626. 2
Selwin’s Nisi Prius
1337.
Besting their defense on the construction of the title papers, it became the duty of the court to inform the jury what was the legal effect of the conveyances and judicial records which had been submitted to them; and this we think was correctly done by the learned judge who delivered the charge.
There is a patent discrepancy between the description contained in the deed of Ferris’ executors and that in the Chancery record of the Shipley Street property. Each gives the courses and distances and the metes and bounds of the lot. The deed describes a line of seventy-one feet and three inches on the street, while the record calls for a line of seventy feet and sixteen hundredths of a foot. There is nothing in the record sent here, or in the title papers, to show that as a matter of fact one description was more accurate-than the other. How then were the jury to determine the true measurement? It does not appear that Martha McComb, or those under whom she claimed, had ever occupied or held actual possession of the land in dispute, or that Schoen, the plaintiff below, or his predecessors, Hyde or Lamborn, had encroached upon it without warrant or authority. It was only, therefore, by the application of the doctrine that the judgment or decree of a court of competent jurisdiction is conclusive on the parties to it and their privies, that a satisfactory result could be reached. In
Stean v. Anderson
4
Harr.
214, it was held that the proceedings and judgment in partition are final and conclusive between the parties and all claiming under them, as to the title to the lands allotted to the several parties. An order of the Orphans’ Court directing a sale of land for the payment of debts, is conclusive as to every matter necessary to the making of such order, and such matter cannot be inquired into collaterally in any other proceeding.
Martin’s Lessee v.
Roach, 1
Harr.
548. See also 1
Houston
334,
Lessee of Short et al. v. Prettyman et al.
This rule can rarely, if ever, work injustice, for it is laid down as a corollary to the principal of estoppel by record, that it is no hardship on any one that he shall be bound by that which would have bound those under whom he claims as to the same subject matter. The reason and policy of the rule are also expressed in the familiar maxim
“interest reipublieae ui sit-finis litium.
The title of McDowell and wife had its immediate ori
gin in the will of Boulden and the decree of partition. The property was conveyed to Boulden by Ferris’ executors whose deed, besides giving the line on Shipley Street in feet and in inches, describes it as ending at Lam-barn’s line on the North. Frances S. McDowell was one of the four devisees named in the will of Boulden, who took his real estate in undivided equal shares as tenants in common. Partition was applied for in Chancery in the usual manner, on the petition of Clark and wife, (the latter being a devisee), the other parties in interest were duly summoned and were represented in court by their solicitor. Commissioners appointed by the Chancellor to divide the real estate among the parties entitled according to their respective shares, made a return accompanied with a survey and plot, allotting to Frances S. McDowell and her heirs, in severalty, “No. 4,” being the lot on Shipley Street, and described in the return as having a front line on that street of a certain length in feet and the fraction of a foot, and terminating at its Northern extremity at the line of Hyde’s land. This return and allotment were approved by the Chancellor, and “ ordered and adjudged to be and remain firm and stable forever.” It is evident from an examination of the title papers at this point, that McDowell and wife took no greater quantity of land in severalty, than was allotted to Frances S. McDowell. The object and purpose of the partition was to divide the whole of Boulden’s real estate among the parties entitled, in equal proportions, so that each devisee might hold a part in severalty. This was done, or at least designed to be done. A surveyor was employed, a survey of each separate division and allotment was made, and the courses and distances, metes and bounds laid down on the plot annexed to the return of the Commissioners. McDowell and wife in the deed to H. S. McComb recite both the conveyance from Ferris’ executors to Boulden with the particular description of the lot therein contained, and also the proceedings in Chancery containing the description returned by the
Commissioners and approved by the Chancellor; and their deed further recites, “ whereas it is the intention of the said parties of the first part hereto by this indenture to convey all their interest in the said above described allotted one-fourtb part of the land and premises aforesaid, to the said Henry S. McComb, his heirs and assigns ;” and concludes by granting to the said Henry S. McComb “ all that the aforesaid described lot or parcel of land situate in the city of Wilmington, with the four substantial brick houses thereon erected.” The title of H. 8. McComb depends on that of his grantors and their deed to him, and he and those claiming under him are concluded from claiming title to any more land than was allotted to Frances 8. McDowell by the decree in partition according to the courses and distances therein set out. The plaintiffs in error contend that the description in the deed from Ferris’ executors should prevail over that of the decree. To yield to such a demand would be to allow a deed between individuals to control or become paramount to the judgment of a court of competent jurisdiction, and would contravene the statute which provides—“ If upon the return of the commissioners it shall appear that partition of the premises has been made, as directed, and such partition be approved by the,.Ghancellor, he shall thereupon enter a final decree that the said partition shall remain firm and stable forever ; and such proceedings and decree shall be conclusive upon the parties and all claiming under them.”
M. S. Chap.
86,
See.
12. On this point the charge of the judge was “that if the jury were satisfied from the evidence before them that the said John McDowell and wife were parties to the said. proceedings in the Court of Chancery for the partition of the lands devised,” then the decree in that court would be conclusive upon them and their privies. The record discloses that they wore parties, specially summoned and represented by their solicitor at every stage of the proceedings.
It was maintained on the part of the plaintiffs in error
that if Martha McComb had not exclusive title to the whole of the land included in the description of the deed of Ferris’ executors by reason of the discrepancy between that description and the decree in Chancery, then that she was tenant in common with the other devisees of Boulden. This position is based on the assumption that there was an error in the measurement made and returned by the commissioners, and that the description in the deed of Ferris’ executors was the absolutely true and correct one, thus leaving an excess or surplus of land which remained undivided and still belonged to the devisees in common, and that McDowell and wife had conveyed all their right and title in such surplus to H. S. McComb. This objection is disposed of by the recital before mentioned, in the deed of McDowell and wife, to wit: that it was the intention of the grantors to convey all their interest in the said above described allotted one-fourth part of the lands and premises aforesaid,” and by the fact that they actually conveyed the portion which had been assigned to Frances S. McDowell in severalty, to H. S. McComb and nothing more. If there -was a surplus of land belonging to the Boulden estate, not included in the partition, it does not appear that any interest in such surplus had been transferred to H. S. McComb. The undivided estate, if there be any, must still belong to the devisees and is subject to their control. But it is hardly inferable from the facts that such is the case. The Shipley Street property was in one body, and is so described, in the petition on which the proceedings in Chancery were instituted.
The last point assigned for error is that the jury were not permitted to go beyond the number of feet specified in the Chancery record, in determining the length of the front line, notwithstanding there were other boundaries mentioned in the record from which the jury might have drawn a different conclusion. It is true, and was not denied in the argument, that fixed and permanent boundaries where they are known and referred to in a deed, or
decree, will prevail over courses and distances.
Hunter v. Lank.
1
Harr.
10. But no visible monuments or objects are named in any- of these title papers or documents as marking or limiting the northern end of the front line. All the proof demonstrates that where the line of McDowell ends on the North, the line of Lamborn and Hyde begins. In other words, the Northern boundary of McComb’s lot and the Southern boundary of Hyde’s lot is an identical but invisible line. Schoen’s fence had to be torn down— the very act complained of as a trespass—to make room for the extension of the line as claimed by the defendants below, very properly, therefore, the jury was not left at liberty to infer that there might have been a mistake in the commissioners’ return. On the contrary they were permitted to infer that a line of precisely the length mentioned in the return terminated at Hyde’s corner. The Superior Court could not go outside of the Chancery record, to reconcile the difference in measurement. It is familiar law that a record imports such absolute verity that no person against whom it is producible shall be permitted to aver against it. In
R. v. Carlile, 2 Bar. Adol.,
Lord Tenterden said, ‘‘the authorities are clear that a party cannot be received to aver as error in fact a matter contrary to the record.” There are exceptions to this rule, but none of them cover the case before us. The Court below rightly instructed the jury to be guided by the description in the Chancery record in locating the Shipley Street line; and under all the circumstances it was the only safe instruction to give, for if matters that have been once solemnly decided, were to be again drawn into controversy there would be no end of litigation and confusion. The authorities cited and relied upon by the counsel for the plaintiffs in error, do not conflict with the foregoing views. In
Bell v.
Woodward, 46
N. H.
315, the Court allowed the introduction of extrinsic evidence to remove a latent ambiguity, and to explain what lands were intended to be included in a deed by the parties to it. The case of
Park v.
Pratt, 38
Ver.
545, arose out of a dis
pute concerning a boundary line, and it was there decided that where there are two descriptions of the same line, one running by the compass, and the other with A’s line, and parallel with the highway, the former shall be considered as a false description, and the latter as the true line. In neither of these cases had there been a previous adjudication of the rights of the parties, or of those under whom they claimed, and the Court was not called upon, in a collateral proceeding to consider the effect of a judgment or decree of another Court of competent jurisdiction in relation to the same subject matter.
Judgment affirmed.