Colby v. Norton

The opinion of the Court was delivered by Weston C. J. The plaintiff, at the time of his purchase from Sanborn and others, was the owner of the adjoining land south. If therefore he extended the southerly line of his new purchase, on number seventy-one, farther south than it ought to go, he thereby restricted the limits of the land he owned before. Jenness, who was one of the grantors in his deed, and the owner of the residue of seventy-one, being about to sell part of it, was desirous of ascertaining how far the plaintiff was entitled to go northerly. Thereupon his sixty rods were measured off, from a starting point shown by himself, and a monument put up at their termination in his presence. In this location, Jenness relied upon the plaintiff, who lived on or near the premises. It was the establishment of bounds between the owners of contiguous lands, which ought not lightly to be disturbed. If, however, a mistake can be clearly shown, which [418] may be considered as having been done in the present ease,'a location thus made is not conclusive between the immediate parties. A correction of the mistake between the plaintiff and Jenness, could take nothing from the latter, which in justice and equity he ought to retain. But as against the grantee of Jenness, the case is differently presented. The monument was put up for the avowed purpose, and this known to the plaintiff, of apprising Walker-, the purchaser from Jenness, how far he would be entitled to go southerly. Jenness thereupon conveyed to Walker, by a general deed of warranty, the northerly part of number seventy-one, extending from the north line, southerly, forty-nine rods in width. This conveyance was made on the same day the monument was put up, and without objection on the part of the plaintiff. It is now found, by actual admeasurement, that forty-nine rods, from the northerly line, will terminate at the monument. And to that point, from which their fence runs, by a continuous line westerly, Walker, and those who held under him, have extended their cultivation and improvement. The plaintiff assumes to know how far his land extended northerly, he proceeds to locate it in his own way, he assists in putting up a monument marking its north-easterly limits. In pursuance of this location, he sees a third person take a conveyance, for a valuable consideration, of the owner of the land adjoining, extending to that point. If he had witnessed such a conveyance, and had been merely passive, it has been held, that he would have been concluded. 1 Johns. Ch. 344; Hatch v. Kimball, 16 Maine R. 146. If it should be said the plaintiff acted under a mistake, there are cases, where ignorance of title will not excuse a party; “ for if he actually misleads á purchaser by his own representations, though innocently, the maxim is justly applied to him, that where one of two innocent persons must suffer, he shall suffer, who, by his own acts, occasioned the confidence and the loss.” 1 Story’s Com. on Equity, 377, § 387, and the cases there cited. [419] Rut íbero is strong proof of the acquiescence of the plaintiff in this location, under his hand and seal, made sixteen years after Walker’s purchase, he and those holding under him, in the mean time having claimed and occupied the forty-nine rods. In November, 1829, Jenness, who had re-purchased of Walker, conveyed to John G. Neil the north half part of number seveníy-onc, “ all that part of said lot unconvcyed to David Colby, and is to be laid out forty-nine rods in width, the whole length of the lot, to contain ninety-eight acres more or less.” And in March, 1830, the plaintiff, by his deed, released to Neil, with warranty against all persons claiming under him, all that pari of lot, number seventy-one, unconvcyed to him by Thomas Jenness, “ and is that part of said lot, conveyed to John G. Neil by said Jenness, containing ninety-eight acres more or less.” It may be contended, that the controlling part of the description is, that it embraced what, Jenness had not conveyed to him. But it referred to and confirmed the deed from Jenness to Neil. That declared the land conveyed to be forty-nine rods wide in its whole length. That accorded with the uniform actual possession. Nobody but the plaintiff could restrict its width. He took an active part in the location, when it was first ¡nade. He had acquiesced in its continuance ; and finally by deed, ratified the conveyance by Jenness to Neil, describing the land, in iis whole extent, to be forty-nine rods wide. In our judgment lie ought not now to be permitted to disturb a line, established from the beginning with his privity and assent. The effect of the deed from the plaintiff to Neil, under whom the defendant, claims, is not impaired upon the ground, that it may have been made with a view to extinguish any color of title, the plaintiff may have derived from other sources. Nonmil confirmed.