Kellum v. Smith

The opinion of the court was delivered, March 28th 1870, by Agnew, J. It was an error to charge the jury that the line run by Judge Morgan could not be set up as a eonsentable line; and that it was abandoned by both parties at the settlement made in 1854. Such abandonment (if it took place) was a matter of fact, and not of law. The legal effect of the compromise of 1854 would have been to avoid the Morgan line of 1848, had there been no imposition in procuring it. But the very question in the cause was the invalidity of that compromise on the ground of fraud. If invalid, the parties were thrown back upon their former boundary, and then the question arose on the Morgan line. According to Cowell’s testimony, he and Warford having a dispute about the boundary line between them, agreed that Judge Morgan should take the deeds and drafts and run and make the line between their lands, and that this should be final. The proof is clear that Morgan did run and establish a line. The compromise of their dispute, according to ’ numerous cases, was a good ground to support the line established under the compromise: Bowen v. Cooper, 7 Watts 311; Perkins v. Gay, 3 S. & R. 327; Brower v. Osterhout, 7 W. & S. 344; Brown v. Caldwell, 10 S. & R. 114; Hagey v. Detweiler, 11 Casey 409. The boundary thus fixed was conclusive and unaffected, even if by parol, by the Statute of Frauds and Perjuries. A new dispute having arisen, and ejectments brought by Emma J. Smith, the settlement of this litigation in 1854 by the running of the line by James A. Paine would have had the same effect in establishing that line in lieu of Morgan’s had this settlement been fair and not procured by imposition. But the avoiding of that settlement by fraud remitted the parties to their former boundary, wherever it was. The defendant had a right to have submitted to the jury the question whether that boundary was not the Morgan line. It was error, therefore, to assume that the Morgan line was abandoned, as that was purely a question of fact. The judgment is therefore reversed, and a venire facias de novo awarded.