Den Ex Dem. Reed v. Shenck

Henderson, Chief-Justice, after stating the case as above, proceeded : — We arc not aware of any such series of decisions, as that mentioned by the Judge below. It is true, that during the time of Judge Hat-wood, there were many decisions on the subject of boundary, which placed the question so much at large, that the description contained in the deed was almost totally disregarded. But many of them never met the approbation of the profession; and for many years, we have in all cases, I believe, except one, adhered to the description contained in the deed; and it is much to be lamented that we do not altogether. The case to which I allude, is where the deed describes the land by course and distance only, and old marks are found, corresponding in age, as well as can be ascertained, with the date of the deed, and so nearly corresponding with the courses and distances that they may well be supposed to have been made for its boundaries, the marks shall be taken as the termini of the land. .This is going as far as prudence permits; for what passes the land not included by the description in the deed, but included by the marked termini? Not the deedj for the description contained in the deed does not comprehend it. It passes therefore either by parol, or by a mere presumption. As far as *418 wo know, there has been no series of decisions, by which the description in the deed is varied by marks, unless they were made for the termini of the land described in -yie deed, or supposed to be so made, and to which it was intended the deed should refer, or to which it was supposed the deed did refer; or rather supposed, that the courses and distances corresponded with the marks, and that the same land was described, whether by course and distance in the deed, or by the marked termini. Not recollecting that all admeasurement was uncertain, it was settled that in such cases, the marked termini should control the course and distance mentioned in the deed. But even this does not admit of parol evidence to show, that lines were run six poles and six feet, instead of six poles only, as in this case. Neither does this rule authorize proof, that the parties afterwards made or marked a line between them, that they dug a well, or erected a house where they thought the boundary was ; for such acts or marks were not done or made to describe the calls of the deed. For the deed had been made already, and these were not cotemporaneous transactions. They were not intended to be, and to remain as monuments of description, erected when the tract was separated from other lands, or was passing from one hand to another, and required a name, a description, an identification, by which it shouldhe known from other lands. They were not intended as monuments to point out the boundaries. Suppose the well was not on the line; would the party’s saying that the line was there change its location ? It is true such acknowledgments are evidence of the place, where the marks or termini anco were, but it is only evidence, when it has been shown or appears, there were some marks to which such acknowledgments pointed. Here there is no evidence, that any such ever existed. Even in cases of any other description than that by course and distance, as where marks, as trees, rocks, water courses, or other things are called for in the deed as *419 termini, the roles of law and Ihe rules of construction make them the termini of the land, and altbo’ they may vary from, and even be in direct opposition to the courses and distances set out in the deed, when established, they control the weaker description of course and distance. Their variance from the course and distance only increases the difficulty of proving, that they are in fact the termini named. But when proven, (by which I mean satisfactorily established,) they are the termini adhered to ; as in the case of Person v. Roundtree, (1 Hay. 378 note,) which is consistent with the most rigid construction of deeds. I therefore think that the parol evidence should have been rejected. No one can find fault with the law as laid down by the Judge in his charge, as a mero abstract proposition. But there was no such case made by the evidence. There was no proof that the boundaries had been marked. The Judge should have told the jury, that thex'C was no evidence to control the courses and distances, and that the lots were described and bounded only by the course and distance. For altho’ it is not proper for tiie Judge to say how much the evidence weighs, yet if it weighs nothing, it is his peculiar province to declare it With that question the jury have nothing to do. Per Curiam. — -Let the judgment of the Court below be reversed, and a new trial awarded-