Staub v. Hampton

117 Tenn. 706

• Court: Tennessee Supreme Court
• Decided: September 15, 1906
• Status: Published

Opinion

Mr. Justice Heil,

after making the foregoing statement of facts, delivered the opinion of the Court.

It is true the description contained in the deed is perfectly clear upon its face; but one term in that description necessitates an inquiry into matter dehors for the purpose of applying the description — that is, an inquiry into the location of the C. Brown entry. Upon the opening of this matter by evidence, it appeared that the parties to the conveyance had with them, when the preparatory survey was made, a map or maps which placed the Brown entry in a certain position; that is, assuming this to be correct, they began their survey upon the east boundary line of that entry at a point forty-seven poles north of its southeast corner, then ran south of the southeast corner, then west with the south boundary line of that entry to a point beyond its southwest corner, then south a given number of poles, then east a given number, then north, then west to the beginning; that the beginning point, and the corners along these lines, except, perhaps, the east line, were marked with piles of stone, and indicated by trees marked as pointers; and that the deed, as a preliminary to the drafting of which the survey was made, was executed, embodying the results of that survey. The same inquiry disclosed the fact that, while the true location of the Brown entry was not by any means free from doubt, yet the weight of the evidence favored the conclusion that it was at a different place, further to the north than shown by the maps just referred to; so that, if complainants are compelled to apply the description contained in the deed to the newly ascertained or presently ascertained location of the Brown entry, the deed wholly fails to cover the land which they contracted for, and which they surveyed, but, on the contrary, embraces land far to the north of that land. Under the facts proven, there is no doubt that the minds of the parties met upon the sale and purchase of the tract which was surveyed and marked, and that they thought they were putting this land into their deed, and, further, that they did put this land into their deed, unless they are confined to what is shown now to be the trne location of the Brown entry.

Are they so bonnd? It is insisted that they are, because the evidence of the survey, and of the map used as a basis for it, and the attendant evidence supporting the conclusion that the minds of the parties met upon the surveyed tract, was incompetent, as tending to vary a written instrument. The rule is general, of course, that a written instrument cannot be varied by parol evidence. If that rule can be held applicable to the present controversy, still, evidence introduced for the purpose of clearing up a latent ambiguity does not fall within its inhibition. Do the facts shown in the present case exhibit an instance of such an ambiguity? We think they do. It is true that on the face of the deed alone, distinct and apart from the inquiries into facts which it implies and necessitates, no question arises; but, when these necessary inquiries are made, an ambiguity at once starts forth. It appears that S. B. Barren had very numerous grants, covering scores of thou-ands of acres of land; that the location of lands in the mountains, under grants, where the land in question lay, is often very difficult; that there was doubt and uncertainty concerning the location of the Brown grant or entry (one of the Barrell grants); that there were two locations current, one location that by which complainants and the Monroe heirs were guided when the survey was made and the deed was executed, and the other that one which is now shOAvn to be the correct one — the only one known at the time to the parties to the deed being the first mentioned, that by which they were guided. It was competent to introduce evidence of these facts to show what the parties meant when they referred to the Brown entry, and thereby to lay down upon the ground the description contained in the deed.

Oral testimony is admissible to identify land described in a conveyance. Murray v. Hobson, 10 Colo., 66, 13 Pac., 921; Greeley v. Weaver (Me.), 13 Atl., 575; Bulkley v. Devine, 127 Ill., 406, 20 N. E., 16, 3 L. R. A., 330. And see Finlavson v. Finlavson, 3 L. R. A., 803, note, and Bulkley v. Devine, 3 L. R. A., 330, note; Curtis v. Aaronson, 49 N. J. Law, 68, 71, 7 Atl., 886, 60 Am. Rep., 584. A written lease purported to demise “all the right to quarry marble on the farm of Henderson Fudge, known as Rose Hill.” It was held that parol evidence was admissible to show that there was a farm of Henderson Fudge known as “Rose Hill.” Dougherty v. Chesnutt, 86 Tenn., 1, 5 S. W., 444. The same principle is recognized in Snodgrass v. Ward, 3 Hayw., 40; Weatherhead v. Sewell, 9 Humph., 289; Dobson v. Litton, 5 Cold., 619. Land conveyed by deed was described only by the number of the section, township, and range, not stating the county or district. It was held that, nothing further appearing, a case of patent ambiguity was presented, which rendered the deed void, hut that the addition of the words, “all that part lying south of Black creek,” removed the patent ambiguity, and rendered parol evidence admissible for the purpose of identifying tlie particular tract. Black v. Pratt Coal & C. Co., 85 Ala., 504, 509, 510, 5 South.., 89. De Witt sold to Miles certain land in the northeast corner of survey 323, in Tom Green county, Texas, and executed to him a deed. But the evidence on the trial clearly showed that the north boundary line of survey No. 323 was several hundred yards further south than it was supposed to he when the deed from De Witt to Miles was executed. The defendant Miles pleaded in reeonvention, and set up claim to the tract of land in the true northeast corner of survey No. 323, which corresponded to the boundaries in his deed, which land was also claimed by plaintiff Koenigheim. The defendant’s plea contained the statutory elements of an action to try title. Testimony was introduced by the plaintiff to show that the land conveyed in. the deed made by De Witt do Miles was situated in the northeast corner of the survey, as it was then supposed to be, and not in the ' northeast corner ■ of the survey as subsequently established; and it was satisfactorily proven that the tract had been surveyed upon the ground, and its corners marked, and that the description in the deed correspond-eed accurately with these marks. The agent through whom the purchase was made testified that this was the land actually sold and intended to be conveyed, and Miles himself testified that he went into possession of it and built a house on it.

“Now,” said the court, after reciting the foregoing facts, “the appellant in. the cross-appeal claims, that by reason of the fact that the deed called for the northeast corner of survey No. 823, he has the right to claim the land in the northeast corner of the true survey, embraced by lines running the course and distance called for in the deed, or, at least, all of that tract which is included in the conveyance from De Witt to plaintiff, and that it was error to admit the evidence showing that the land described in his deed was not a part of the true survey. But the law does not sustain his claim. Having bought a well-defined tract, marked upon the ground, he acquired such title as his grantor had in this, and no right to any other land. If the call for the northeast corner of survey No. 323 was false (and the evidence showed that this was a fact), this call must be rejected and disregarded. The rule is general that the boundaries of a grant, as actually surveyed, are the limits of the grantee’s right, and will control calls for the unascertained boundaries of existing surveys. These appellants cannot shift the locality of their grant from the ground iipon which it was originally laid out and designated to another place, merely because it is shown that its corner is not the true corner of the original survey called for. The court did not err in admitting evidence to show the true location of the land described in the deed under which these appellants claimed; and it being found that the deed of the plaintiff, in the court below, which was older than that last mentioned, embraced all the land in controversy lying south of the true north boundary line of survey No. 323, it did not err in giving him judgment for the land extending to that line.” Koenigheim v. Miles, 67 Tex., 113, 123, 2 S. W., 81, 87.

In a deed to land, a portion of the premises conveyed was described as “the horse shed on the west side of the north and sonth highway, .... together with the land conveyed by the same, . . . the grantee to have the right and privilege to go on land of grantors around said shed for the purpose of repairing the same.” It was held that the land conveyed was that actually covered by the horse shed as it then stood, and that the line of the highway referred to was the apparent highway, and not the line of the highway as subsequently found upon actual survey to cross the land further to the west than the east line of the shed. Bristol Mfg. v. Barnes, 54 Conn., 53, 55, 57, 5 Atl., 593.

A deed, and the plat with reference to which the deed was made, called for the south line of a certain street as a boundary. This south line had been established and acquiesced in for more than thirty years. Other lots had been sold and improvements erected on the assumption of the accuracy of this line. A more recent survey tended to show that the line was wrong. It was held that the grantee must be confined to the limits of the- old survey. Wilmarth v. Woodcock, 33 N. W., 400, 66 Mich., 331; 9 West, 895. And see O’Brien v. King, 49 N. J. Law, 79, 85, 7 Atl., 34; McShane v. Main, 62 N. H., 4.

Land conveyed in a deed was described therein by the ' number of the lot and the range in a town, according to the plan of a certain surveyor named, who had surveyed the part of the town including the land into- lots and ranges, and made a plan of th¿ surveys of the whole town. It was held that the lines run by him upon the surface of the earth, as and for the boundaries of that lot, would Still be its boundaries, if their locality could be found, rather than the lines indicated on the plan. Bean v. Bachelder, 78 Me., 184, 186, 187, 3 Atl., 279. When a line has been actually run; and a corner marked, this will determine the boundary, though in a deed of the land the line is described as following the run of a creek not reached by such line. Baxter v. Wilson, 95 N. C., 137. The deed, under which a defendant in ejectment claimed, called for a line of a certain length. The fact was that, in a survey made by the parties to the deed, that line was marked upon the ground of a shorter length, and the deed was afterward drawn with the difference unobserved. It was held that the line of the deed must be controlled by the line as marked on the survey. Morse v. Rollins, 121 Pa., 537, 542, 543, 15 Atl. 645. When land is described in a deed by reference to a survey, and also to a map thereof, it is to be presumed, in the absence of contrary proof, that the map correctly represents the survey and the latter need not be looked to; but, if a discrepancy between the two he shown to exist, the survey itself must control. Whiting v. Gardner, 80 Cal., 78, 80, 22 Pac., 71. When a deed of a city lot refers to an official map of the city, and also to stakes at the corners of the lot, parol testimony is admissible to show that the official map is inaccurate, and was com.piled from other maps without actual survey; that the stakes referred to were set by another surveyor, who located the lot when it was granted by the city trustees, as the basis of their grant; and that the tract which the city intended to sell and the grantee intended to buy was then staked off and definitely located by such surveyors. Cleveland v. Choate, 77 Cal., 73, 78, 18 Pac., 875. In deeds of adjoining lands, the boundary was described by varying courses, which would make a difference of several feet in the location of a corner common to both. It was held that a stake marking the corner, placed without dispute, would control, as a known, fixed monument. Beaudry v. Doyle, 68 Cal., 105, 8 Pac., 694. Other authorities in the same line are Brown v. Gay, 3 Me. (3 Greenl.), 126; Ripley v. Berry, 5 Me. (5 Greenl.), 24, 17 Am. Dec., 201; Herrick v. Hopkins, 23 Me., 217; Knowles v. Toothaker, 58 Me., 172, 174, 175, 176; Hall v. Davis, 36 N. H., 569, 571; Richardson v. Chickering, 41 N. H., 380, 384, 75 Am. Dec., 769; Kellogg v. Smith, 7 Cush. (Mass.), 375; Peck v. Mallams, 10 K Y., 509, 532; Blasdell v. Bissell, 6 Pa., 258, 259; Thompson v. McFarland, 6 Pa., 478, 480; Banks v. Ammon, 27 Pa., 172, 174, 175; Dawson v. Mills, 32 Pa., 302, 306; Ogden v. Porterfield, 34 Pa., 191, 195, 196; Lodge v. Barnett, 46 Pa., 477, 484; Riddlesburg, etc., Coal Co. v. Rogers, 65 Pa., 416; Craft v. Yeaney, 66 Pa., 210, 214; Cherry v. Slade, 7 N. C., 82; Ring v. King, 20 N. C., 301; Kronenberger v. Hoffner, 44 Mo., 185, 192, 193.

In our own State we have the following cases: White’s Lessee v. Hembree, 1 Tenn. (Overt.), 529, 533, 534; Blount’s Lessee v. Medlin, 2 Tenn. (Overt.), 200; Heirs of Williams v. Buchanan, 2 Tenn. (Overt.), 279, 281, 282, 283, 284; Smith v. Buchanan, 2 Tenn. (Overt.), 307, 308; McNairy v. Hightour, 2 Tenn. (Overt.), 302, 304; Dallum v. Breckenridge, Cooke, 154, 158, Fed. Cas. No. 3547; Jordan v. Payne, Peck, 320; Roberts v. Cunningham, Mart. & Y., 73; Garner and Dixon v. Norris, 1 Yerg., 62, approving Person v. Roundtree, 2 N. C., 378, note; Massengill v. Boyles, 4 Humph., 205; Bell v. Hickman, 6 Humph., 401; Funa v. Manning, 11 Humph., 311; Tate v. Gray, 1 Swan, 74; Smith v. Jones, 3 Sneed, 533; Nolen v. Wilson, 5 Sneed, 337; Mayse v. Lafferty, 1 Head, 60; Martin v. Nance, 3 Head, 650; Dyer v. Yates, 1 Cold., 138; Disney v. Coal Creek Min. & Mfg. Co., II Lea, 612, 613, 614; Turnage v. Kenton, 102 Tenn., 332, 52 S. W., 174.

It is insisted for defendants that all of the foregoing were cases in which the survey was made by a public surveyor, as a preliminary to the issuance of a grant by the State, and that the rule which gives commanding importance to the survey and the marks made upon the ground pursuant thereto, in arriving at the intention of the parties as to the identity of the land sold and purchased, in case of an apparent conflict between the written conveyance and such actual survey and marking, applies only to such public surveys and to grants by the State, and not to deeds between private-persons. Before entering upon a consideration of the point it is 'due that we should quote from our cases the rule as it has been heretofore applied.

In Garner and Dixon v. Norris’ Lessee it is said: “Will the grant cover an original survey, though not conformable to its calls? This is, of course, to be understood as against the State and subsequent claimants to the survey. This point has been settled, long ago, by the case of Person v. Roundtree, which is considered a leading case. 2 N. C., 378, note. ‘Roundtree entered a tract of land lying on Shoco creek; running south, then east, then north to the creek, then up the creek to the beginning. In the grant the courses were reversed, beginning on the creek at a tree, and running north, then east, etc., placing the land on the opposite side of the creek from that on which it was really surveyed, so that the grant did not cover any of the land surveyed. Roundtree settled on the land, which- was afterwards entered by Person, who got a grant and brought an ejectment.’ The case was several times argued, and at last determined, by the unanimous opinion of the court, that the mistake of the surveyor or secretary who filled up the grant should not prejudice the defendant,- but that he was well entitled to the land intended to be granted, notwithstanding the calls of the grant may not cover a single foot of it. Still, in contemplation-of law, it shall cover it, and protect the land surveyed to the party.” 1 Yerg., 62, 66, 67.

To the same effect, Nolen v. Wilson, 5 Sneed, 332, 337-339.

In Dyer v. Yates, it is said: “There is an admitted error in the calls of the grant, . . . but the lines had all been plainly marked at the time of the original survey. . . . The error in the grant was not material, though its calls, literally pursued, did not take in all the land covered by the entry and appropriated by an actual survey and marking of the lines and corners; yet in legal contemplation it did cover all the land and vest the grantee with a legal title to the same as fully as if the calls had exactly conformed to the entry and survey, because upon the facts stated the law corrected the erroneous call, and supplied the proper calls without any correction in point of fact.” 1 Cold., 136, 139-140.

It has been held that the rule of these cases applies equally to transactions between private persons. In Hale v. Darter it is said: “It is insisted that the circuit judge erred in . charging the jury ‘that if the owner of one or more adjoining tracts of land sell a portion of it and make a survey of it, and a deed in pursuance of that survey, the purchaser is entitled to the land actually surveyed, provided those lines and corners can he established and identified as -having been actually run and made at the time of the sale, and that course and distance must yield to what is proved to have been the actual survey.’ At the'time of the sale to G-illenwaters, Ilopkins owned a large body of land, including that now in dispute. They went on the ground, and Hopkins pointed out and designated the land which Gillenwaters agreed to buy. Afterwards they procured a surveyor, ran out and marked the lines and corners of the tract, and Hopkins executed a deed for the same to Gillen-waters. The party making the sale had a perfect right to make what corners he pleased on his own land, and call them whatever name he chose. The purchaser cannot he concluded by any technical rule of law from showing the land he actually bought and had surveyed to him, although, by an error or oversight in drawing his deed, there may be some conflict between the courses and distances called for and those actually run and marked at the time of the survey. The charge of the circuit judge upon this point we deem to be in substantial, if not in literal, conformity to the repeated adjudications of this court.” 10 Humph., 92, 93, 94.

In Mayse v. Lafferty, supra, the same rule was applied to a survey made in a partition proceeding wherein the lands of private persons were divided. And in Dyer v. Yates (last paragraph of the opinion) the rule was applied alike to a grant of the State and a deed made by a private person. 1 Cold., 141.

Moreover, nearly all the authorities which we have cited from other jurisdictions involved transactions between private persons, in which the rule was applied. It will not be amiss to refer to and quote from two or three of these.

In Ogden v. Porterfield, supra, the court, after referring to the contentions of the parties, said: “The essence of these contentions is plainly this: On the one hand, that if a line existed on the ground that the parties agreed to and bargained by, it will control and limit the deed; and, on the other, that the deed obliterates and controls the line, notwithstanding it was acquiesced in by the parties, and that it was an error in the court to submit the question of the existence of the line, and of the knowledge and acquiescence in it as a dividing line on the part of James Porterfield and his heirs. The position of the defendants below is not tenable. In Blasdell v. Bissell, 6 Pa., 258, and in Dawson v. Mills, 32 Pa., 306, the doctrine that a conveyance, made subsequently to a survey, dividing land between parties, is referable to that survey and limited by it, was fully held. In grants by the commonwealth, they rarely, if ever, describe the exact quantity contained in the official survey on the warrant, and nobody ever pretended that the survey was to be either enlarged or diminished to accord with the patent. The survey and the conveyance are the distinctive and operative acts in the transmission of real property, and, where they differ from each other, one must of necessity control the other, if each stands unaided by extrinsic explanation, or the discrepancy could never be adjusted. In such an exigency, courts have always held the demarcation of the boundaries as the substantive act in fixing the limits of the grant, and the deed as evidence of them — the former the factum, and the latter the representative; and hence the rule that the surveyj if unimpeachable for fraud or misi-take, controls the deed, where there is a discrepancy as to the extent of the grant.” 34 Pa., 195, 196.

In Lodge v. Barnett, supra, it is said: “On this point there is nothing more fixed or better ascertained than the law of this State. The courses and distances in a deed ahvays give way to the boundaries found upon the ground, or supplied by the proof of their former existence when the marks or monuments are gona So the return of a .survey, even though official, must give way to the location on the ground, while the patent, the final grant of the State, may be corrected by the return of survey, and, if it also differs, both may be rectified by the work on the ground. One of the strongest illustrations of this rule is to be found in the instance of the surveys of the donation lands, set apart for the soldiers of the Pennsylvania line in the Revolutionary War. The law required the tract to be identified by marking the number of it upon a tree within and nearest to the northwestern corner. It was held that this number controlled all the remainder of the description in the patent, so as to wrest it entirely from its position and adjoiners, as described in the patent and general draft. Smith v. Moore, 5 Rawle (Pa.), 348; Dunn v. Ralyea, 6 Watts, & S. (Pa.), 475. Chief Justice Gibson, in the former case, stated the general principle thus: £It is a familiar principle of our system, and one in reason applicable to this species of title, as Avell as any other, that it is the work on the ground, and not on the diagram returned, Avhich constitutes the survey, the latter being but evidence (and by no means conclusive) of the former. ... It is conceded that the patent may he rectified by the return of survey; and why not the return of survey by the lines on the ground, and particularly the numbered tree, which is the foundation of the whole?’ In the latter case, Kennedy, J., said: ‘That the original lines as found marked on the ground must govern, in determining the location and extent of the survey, is a well-established rule, in general applicable to all cases.’ . . . We know, in point of fact, that the marks made on the ground at the time of making the survey are the original, and therefore the best evidence of what is done in making it; that everything that is committed to paper afterwards in relation to it intended and ought to be, as it were, a copy of what was done, and ought to appear on the ground, in the doing of which errors may be committed, which renders it less to be relied on than the work as it appears by the marks made on the ground.” 46 Pa., 484, 485.

In Baxter v. Wilson, supra, it is said: “The main question in controversy between the parties is whether the dividing line between their lands is the line N, M, or -the line E, F, G. The plaintiff insists that the true line between them is E, F, G, because that was the line actually run when the land was divided, and the defendant contends that N, M, must be taken to be the line, because the call from H, as claimed by the plaintiff, is with the run of the creek, twenty-six chains, and, the creek being a natural boundary, the line must follow its course and terminate at the end of the distance. As a general rule the position contended for by the defendant is correct. It has been so held by several decisions in this State, notably in Hartsfield v. Westbrook, 2 N. C., 258; Sandifer v. Foster, 2 N. C., 237; McPhoul, v. Gilchrist, 29 N. C., 169. But this is not an inflexible rule. It has its exceptions. For instance, when there has been a practical location of the land, as when it can be proved that there was a line actually run and marked, and a comer made, such a boundary will be upheld, notwithstanding a mistaken description in the deed. Cherry v. Slade, 7 N. C., 82.” 95 N. C., 143.

The facts contained in the statement which concern the recognition which the Monroe heirs gave the location claimed by the complainants, even if not available by way of estoppel, a question which we do not consider here, are useful as indicating, in connection with complainants’, or Peter Staub’s, immediate and long-continued possession, a concurrent construction by the parties of the deed, in respect of the land intended to be conveyed by it; an important consideration in cases of the kind we have before us. Kingsland v. N. Y., 45 Hun (N. Y.), 198; Monfort v. Stevens, 68 Mich., 61, 35 N. W., 827; Raymond v. Nash., 57 Conn., 447, 18 Atl., 714; Reed v. Proprietors of Locks and Canals, 8 How. (U. S.), 287, 290, 291, 12 L. Ed., 1077; Atkinson’s Lessee v. Cummings, 9 How. (U. S.), 484, 487, 13 L. Ed., 223; Steinbach v. Stewart, 11 Wall. (U. S.), 567, 20 L. Ed., 56; James Irwin v. United States, 16 How. (U. S.), 522, 14 L. Ed., 1038.

In Reed v. Proprietors of Locks and Canals, it is said: “It cannot be doubted that, where a deed is indefinite, uncertain, or ambiguous in the description of the boundaries of the land conveyed, the construction given by the parties themselves, as shown by their acts and admissions, is deemed to be the true one, unless the contrary be clearly shown. The difficulty in the application of the descriptive portion's of a deed to external objects usually arises from what is called a 'latent ambiguity,’ which has its origin in parol testimony, and must necessarily be solved in the same way. It therefore becomes a question to be decided by a jury what were the intentions of the parties to the deed. From this view of the case, as exhibited by the record, it clearly appears that the question whether the demanded premises were included within the limits of the mortgage, or intended so to be, were submitted by the parties and by the nature of the case to the jury, and that, in order to arrive at a correct decision of the issue, the jury should be instructed to weigh the testimony as to the 'monuments, length of lines and quantities, actual occupation, etc., and decide according to the weight of the evidence. And such is the meaning, and no more, of the language of the court now under consideration. We can perceive no error in it.” 8 How. (U. S.), 290, 291.

In Atkinson’s Lessee v. Cummings, it is said: “The general rule is well stated by Tindall, C. J., in the case of Miller v. Travers, 8 Bing., 244, that in all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject, calculated to explain what was the estate or subject-matter really intended to be granted or devised.” 9 How. (U. S.), 486.

In Cavazos v. Trevino, 6 Wall. (U. S.), 773, 785, 18 L. Ed., 813, it is said: “The instruction given as to the acquiescence of the parties in respect to the line run for a long period was correct. The practical interpretation which the parties, by their conduct, have given to a written instrument in case like this, is ahvays admitted, and • is entitled to weight. There is no better test of the intention of the instrument. None are less likely to be mistaken. There is no danger of too large an admission. Safer testimony can hardly be presented in relation to any transaction occurring in human affairs.”

In the same case the court also said: “In construing this grant, the attendant and surrounding circumstances at the time it was made are competent evidence for the purpose of placing the court in the same situatioh, and giving it the same advantages, for construing the paper which were possessed by the actors themselves. The object and effect of such evidence are not to contradict or vary the terms of the instrument, but to enable the court to arrive at'the proper conclusion as to its meaning, and the understanding and intention of the parties.” Cavazos v. Trevino, 6 Wall. (U. S.), 784.

And this is but an application of the general doctrine that “courts, in tbe construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.” Nash v. Towne, 5 Wall. (U. S.), 699, 18 L. Ed., 527.

So, at last, the true purpose of the evidence upon the subject of recognition of the location by the Monroe heirs, and by the complainant and her predecessor in title, Peter Staub, as well as of the other evidence concerning the existence and use of the maps in the survey made at the time, fixing the place of the Brown entry on the ground, as its location was then understood, and of the marks made upon the ground at the time, was to place the court- in the position of the parties to the deed, and to enable it to see the contemporaneous.facts as they saw them, and to understand the terms of description used in the deed as they understood them, as well as and thereby to ascertain the land which in legal contemplation the deed covered; the law, as said in Dyer v. Yates, supra, correcting the apparent error in the reference to the Brown entry considered as of the presently ascertained location of that entry, so as to conform that reference to the location as understood when the survey and deed were made, tbe law supplying the proper call “without any correction in point of fact.”-

Defendants insist that the doctrine supported by the cases above referred to concerning the rank accorded to marks made upon the ground in ascertaining the land actually intended to be conyeyed, and really passing under the deed, in case of an apparent conflict between the latter and these marks, is contrary to the policy of the registration laws, may infringe the rights of innocent purchaser, and is, in effect, a means of accomplishing in an action at law, by oral evidence, a result that can be rightfully attained only under a bill in equity to reform the deed. To this we answer that the registration laws are not involved in the present controversy, nor are the rights of an innocent purchaser, since Staub was in possession when the Thomas Coal Company bought the land, and the statement of facts shows there were other facts sufficient to put the defendant on notice. Banks v. Ammon, 27 Pa., 172, 175; Macon v. Sheppard, 2 Humph., 335, 338, 339; Davis v. Cross, 14 Lea, 637, 642, 52 Am. Rep., 177. Nor is it material, if it be true, that the same result is reached as if a bill in equity had been filed to correct the deed, since the rule applied is an old one, in effect a rule of property, long recognized and supported by indubitable and multitudinous precedents.

It is next insisted that the rule is in the teeth of the statute of frauds; but this objection is likewise not well taken, as is manifest from the basis on which it rests, as displayed in the foregoing discussion, and the illustrations of it shown in the cases cited.

Defendants insist that they are at least entitled to the Parmley tract of 1,000 acres included within the 5,900 acres sued for, because they traced their title thereto back to the Bradshaw grant; but this is immaterial, because the latter grant is inferior to the Barrell grant, under which the complainants claim.

The foregoing disposes of all of the matters in controversy, Avith the result that we find no error in the decree of the court of chancery appeals; and it must be affirmed.