Napton, J.,
delivered the opinion of the court.
The only question in this case is whether the instruetios of the court of common pleas is correct.
Upon the face of the deeds the intention is manifest to convey to Dea-ver one half of the patented tract. The deed from Papin to Deaver conveys a tract cs containing IB 64-100 acres, and being the northern part of a tract of land containing 27 29-100 acres.” In the covenants [488]*488of the same deeds, the tract conveyed is mentioned as being the “northern part or half of the patented tract.” It seems that this patent to Pa-pin, though calling for 27 29-100 acres, actually contained by survey 31 92-100 acres, but a portion in the northern end, a little over two acres, was covered by the St. Louis commons. By direction of both Papin and Walker, (who had bought of Deaver) a surveyor divided the tract between them, and established a division line, giving to each 14 53-100 acres, leaving out, of course, the part of the patent which fell within the commons. Copies of this survey were furnished each party, and possession given accordingly. Papin caused his portion of the land to be laid out in town lots, a plat of which he had filed in the clerk’s office, as the law directs, and upon which plat Walker’s name was marked immediately north of the division line run by the surveyor, as indicating the land beyond that line to belong to Walker. Subsequently he sold to Walker two lots, forming agoré between Carondalet avenue and Walker’s land, and to that extent diminishing Walker’s front on the avenue. This survey was made in 1842.
These facts, in our opinicn, make out a case of estoppel. To constitute an estoppel in paclis it is said in Darrell vs. Odell (3 Hill 219) that there must be, First, an admission inconsistent with the evidence proposed to be given, hr the claim offered to be set up ; Second, An ac_ tion by the other party upon such admission; Third, An injury to him by allowing the admission to be disproved. Here we have a concurrence of all the circumstances thus said to be necessary to constitute an estoppel.
1. The act of the surveyor in establishing the division line, was the act of Papin; it was directed by him and sanctioned after completion. It was recognized and acquiesced in. This line is now sought to be removed by those claiming under him, and a new line established.
2. Upon the faith of this survey Walker took possession and has held possession ever since without question. But this is not all — he was induced to purchase two lots, not included in his part of the tract, with the view of giving his tract a rectangular shape, and getting a full front on the avenue or public street.
3. The injury resulting to Walker from an allowance of this claim is sufficiently obvious, A glance at the plat of survey will show that the lot purchased by Walker could only be valuable to him upon the stability of the division line already agreed on. If the provision now proposed be made, these lots would form an isolated wedge, disconnected with Walker’s main tract, and if not wholly useless, cwtainly greatly diminished in value.
[489]*489It is upon this doctrine of estoppel that the cases have rested, which hold the verbal argreements and acts of parties conclusive of a disputed boundary, without regard to the inference which the law would draw from the deeds, in the absence of such acts and agreements. The object of rules of construction is to arrive at the intention of the parties, but no rules can be framed which will lead to so correct a conclusion as the interpretation pointed out by the acts of the parties themselves. We may resort to these rules in the absence of such indications, but who so well qualified to understand their own meaning as the parties themselves ? Let it be admitted, in this case, that a line parallel to the north line of the patent, at a distance sufficient to give the quantity called for, is the line which by construction of law would be the proper one to give shape to the tract; does it follow that no other line could be agreed upon between the parties, ineluding even the quantity and answering all the definite calls of the deed? A tract of thirteen or fourteen acres, at the north end of a larger tract, may be located by shifting the north line of the smaller tract in a variety of directions, and the quantity called for and the position required still be reserved. No doubt a straight line, parallel to the northern line, is the usual, natural and proper line, in the absence of action by the parties themselves; but if caprice, or equity, or an honest fulfillment of obligations should prompt the parties to select a curve, or a diagonal, or any other line, I do not know of any rule of law or equity which compels the courts to interfere.
There might be some hesitation in applying this principle of estoppel to cases where parties had obviously acted under a mistaken impression of their rights. A careful examination of all the deeds and all the actions of the parties in this case will tend to the conclusion that there was in truth no mistake at all. Papin had all the facts fully before him when the line now disputed was assented to. The part of the patent within the commons was left out of the survey, and its omission was' manifest upon inspection of the plat. The division was no doubt understood to be made without reference to that small portion of the original tract patented which fell within another confirmed claim. That this was the understanding of all parties is manifest from their acts, and is this circumstance to militate against the enforcement of a principle of law which happens thus to correspond with the dictators of justice and equity ? We think not.
We do not understand the case of Adams vs. Rockwell (16 Wend. 285) in the court of errors of New York, as maintaing a different principle. It is not alv/ays easy to ascertain the exact grounds upon which a judgment is rendered by that court, when several opinions are deliv[490]*490ered, varying somewhat in their views, but concurring in the result. In this case the Chancellor takes the following positions:
“Where there can be no real doubt as to how th® premises should be located according to certain known boundaries described in the deed, to establish a practical location different therefrom which shall deprive the party claiming under the deed of his legal rights, there must be either a location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations in relation to real estate — or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof, or the party whose right is to be thus barred must have silently looked on and seen the other party doing acts or subjecting himself to expenses in relation to the land upon the opposite side of the line which would be an injury to him and which he could not have done if the line had not been so located, in which case perhaps a grant might be prevented within twenty years.”
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Napton, J.,
delivered the opinion of the court.
The only question in this case is whether the instruetios of the court of common pleas is correct.
Upon the face of the deeds the intention is manifest to convey to Dea-ver one half of the patented tract. The deed from Papin to Deaver conveys a tract cs containing IB 64-100 acres, and being the northern part of a tract of land containing 27 29-100 acres.” In the covenants [488]*488of the same deeds, the tract conveyed is mentioned as being the “northern part or half of the patented tract.” It seems that this patent to Pa-pin, though calling for 27 29-100 acres, actually contained by survey 31 92-100 acres, but a portion in the northern end, a little over two acres, was covered by the St. Louis commons. By direction of both Papin and Walker, (who had bought of Deaver) a surveyor divided the tract between them, and established a division line, giving to each 14 53-100 acres, leaving out, of course, the part of the patent which fell within the commons. Copies of this survey were furnished each party, and possession given accordingly. Papin caused his portion of the land to be laid out in town lots, a plat of which he had filed in the clerk’s office, as the law directs, and upon which plat Walker’s name was marked immediately north of the division line run by the surveyor, as indicating the land beyond that line to belong to Walker. Subsequently he sold to Walker two lots, forming agoré between Carondalet avenue and Walker’s land, and to that extent diminishing Walker’s front on the avenue. This survey was made in 1842.
These facts, in our opinicn, make out a case of estoppel. To constitute an estoppel in paclis it is said in Darrell vs. Odell (3 Hill 219) that there must be, First, an admission inconsistent with the evidence proposed to be given, hr the claim offered to be set up ; Second, An ac_ tion by the other party upon such admission; Third, An injury to him by allowing the admission to be disproved. Here we have a concurrence of all the circumstances thus said to be necessary to constitute an estoppel.
1. The act of the surveyor in establishing the division line, was the act of Papin; it was directed by him and sanctioned after completion. It was recognized and acquiesced in. This line is now sought to be removed by those claiming under him, and a new line established.
2. Upon the faith of this survey Walker took possession and has held possession ever since without question. But this is not all — he was induced to purchase two lots, not included in his part of the tract, with the view of giving his tract a rectangular shape, and getting a full front on the avenue or public street.
3. The injury resulting to Walker from an allowance of this claim is sufficiently obvious, A glance at the plat of survey will show that the lot purchased by Walker could only be valuable to him upon the stability of the division line already agreed on. If the provision now proposed be made, these lots would form an isolated wedge, disconnected with Walker’s main tract, and if not wholly useless, cwtainly greatly diminished in value.
[489]*489It is upon this doctrine of estoppel that the cases have rested, which hold the verbal argreements and acts of parties conclusive of a disputed boundary, without regard to the inference which the law would draw from the deeds, in the absence of such acts and agreements. The object of rules of construction is to arrive at the intention of the parties, but no rules can be framed which will lead to so correct a conclusion as the interpretation pointed out by the acts of the parties themselves. We may resort to these rules in the absence of such indications, but who so well qualified to understand their own meaning as the parties themselves ? Let it be admitted, in this case, that a line parallel to the north line of the patent, at a distance sufficient to give the quantity called for, is the line which by construction of law would be the proper one to give shape to the tract; does it follow that no other line could be agreed upon between the parties, ineluding even the quantity and answering all the definite calls of the deed? A tract of thirteen or fourteen acres, at the north end of a larger tract, may be located by shifting the north line of the smaller tract in a variety of directions, and the quantity called for and the position required still be reserved. No doubt a straight line, parallel to the northern line, is the usual, natural and proper line, in the absence of action by the parties themselves; but if caprice, or equity, or an honest fulfillment of obligations should prompt the parties to select a curve, or a diagonal, or any other line, I do not know of any rule of law or equity which compels the courts to interfere.
There might be some hesitation in applying this principle of estoppel to cases where parties had obviously acted under a mistaken impression of their rights. A careful examination of all the deeds and all the actions of the parties in this case will tend to the conclusion that there was in truth no mistake at all. Papin had all the facts fully before him when the line now disputed was assented to. The part of the patent within the commons was left out of the survey, and its omission was' manifest upon inspection of the plat. The division was no doubt understood to be made without reference to that small portion of the original tract patented which fell within another confirmed claim. That this was the understanding of all parties is manifest from their acts, and is this circumstance to militate against the enforcement of a principle of law which happens thus to correspond with the dictators of justice and equity ? We think not.
We do not understand the case of Adams vs. Rockwell (16 Wend. 285) in the court of errors of New York, as maintaing a different principle. It is not alv/ays easy to ascertain the exact grounds upon which a judgment is rendered by that court, when several opinions are deliv[490]*490ered, varying somewhat in their views, but concurring in the result. In this case the Chancellor takes the following positions:
“Where there can be no real doubt as to how th® premises should be located according to certain known boundaries described in the deed, to establish a practical location different therefrom which shall deprive the party claiming under the deed of his legal rights, there must be either a location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations in relation to real estate — or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof, or the party whose right is to be thus barred must have silently looked on and seen the other party doing acts or subjecting himself to expenses in relation to the land upon the opposite side of the line which would be an injury to him and which he could not have done if the line had not been so located, in which case perhaps a grant might be prevented within twenty years.”
Admitting that the present is a case of known boundaries described in the deed, and that these boundaries conflict with the line practically established, there is evidence of acts from which an agreement of the parties may well be inferred, and if there was not the party whose legal rights are sought to be enforced “has silently looked on and seen the other party doing acts and subjecting himself to expenses in relation to the land upon the opposite side of the line which would be an injury to him and which he would not have done if the line had not been so located.” But it will be observed that this is not a case of a boundary fixed in a deed by monuments, courses and distances. Moreover, the case of Adams vs. Rockwell was a case concerning wild lands, where an encroachment had been made by an adjoining proprietor, a line of division established and silently acquiesced in for several years, but no improvement made, and no occupation even of the land. The mere silent acquiescence of the true owner, resulting in no practical injury or inconvenience to the encroaching proprietor, was not regarded sufficient to raise the presumption of an agreed line. But it was admitted, although the case was one of known fixed boundaries, an erroneous line might have been agreed on, and such line should conclude the parties.
It is said that this doctrine conflicts with the statute of frauds — but it has not been so regarded in any of the numerous cases decided on this point. Where the terms of the deed are ambiguous, there is clearly no ground upon which the statute of frauds can be invoked; but even where a well defined boundary is given in the deed, we have seen that a different one may be established under circumstances which will conclude the parties from contesting it. This is only analogous to numer[491]*491ous other doctrines, as well settled as the construction of the statute itself. Is not a title itself held to pass estoppel ? Have not the courts refused to permit the contents of a deed to be proved, when the grantee has destroyed it with a view to re-invest the title ? Have not owners of land transferred their title by standing by and permitting adverse possession, and the adverse proprietors to build and improve P The statute was made to prevent fraud, and the courts have not felt themselves called upon to adhere so closely to its letter as to facilitate and encourage the very evil it was framed to prevent.
The truth is, the statute does not apply to such cases. The doctriné of estoppel is as old as the statute of frauds, and, as such, a part of the law of the land. It is no objection to either, that the one may be a modification or regulation of the other.
There is much reason for holding in this case that there was an es-toppel by deed, as well as by acts in pais, but as the latter terminates the controversy, it is unnecessary to give any opinion an this point.
Judgment affirmed.