Burkholder v. Markley

Mr. Justice Trunkey delivered the opinion of the court, Samuel Moyer, by deed dated April 10th 1865, conveyed part of a tract of land to Isaac Gingrich, whose title has been vested in Burkholder. On the 10th of May following, Moyer conveyed another part of said tract to David Ober, which part is now vested in Marbley. The line between these parcels, being the one in dispute, is described in the deeds as fanning from a post north nineteen degrees east, twenty-three perches and five-tenths, to a stone in the road. Both parties agree that this is a straight line. They also agree that a shed, built before Moyer conveyed, is still standing where it did at the time of the conveyances. Markley claims that the line, ascertained from the courses and distances set out in the deeds, passes through that shed so that a portion of it is on his land. Burkholder claims that after Moyer had orally agreed to sell to Gingrich, and before he made the deed to him, there was an actual survey,. that the line ran from a post direct to a stake, not less than twelve nor more than eighteen inches from the shed, and that the land was sold and bought by the parties with reference to said line. If Burkholder’s claim be true, then, so far as the courses and distances in the deeds show a line differing from that, they must yield. The lines run and marked on the ground are the true survey, and when they can be found will control the calls for a natural or other fixed boundary; and also constitute the boundaries in the grant where they differ from those produced by the courses and distances stated in the patent. This well-settled rule in cases of lands' granted by the commonwealth, applies to grants by individuals : Blasdell v. Bissell, 6 Barr 258 ; Craft v. Yeaney, 16 P. F. S. 210. In Craft v. Yeaney the testimony of the original grantor was received, the court below saying, While it is true the deed cannot be'changed, or construed, or affected by parol, it is competent to prove outside the deed that the calls in the deed are not on the ground, or that a line or boundary called 'for in the deed is in a different place from that contracted for by the parties, or that what is called the eastern line of warrant Do. 4019 is not at the place sold and bought to.” And that was held not to be error. Where a deed was for fifty acres of land, the quantity intended by both parties, described by existing lines on three [41] sides, and called for a south “ line to be ran so far south from the north line, and paralled therewith, as to include fifty acres of land,” it was held competent to prove that the line agreed upon by the parties as the south line was a fence, though it differed from the one produced by the description in the deed. The grantee objected to the deed because she did not know that, fifty acres would run to the fence, but the grantor assured her that fifty acres would reach the fence, that the deed embraced it, and she accepted the deed. It was said to be of no consequence whether the grantor was aware that he was making a misrepresentation, if by it the grantee did what she would not have done and was injured: Bartle v. Vosbury, 3 Grant 277. That decision rests on the principle that a line on the ground, fixed by the parties as the one sold and bought to, controls calls or distances stated in the deed, wherever there is fraud or mistake. The cases enforcing and illustrating the application of this principle are numerous ; it would be idle to cite additional. It may frequently occur that the location of a line which was agreed upon, cannot be determined for want of evidence. In such case the location js settled by the deed. The lines produced by the calls, courses and distances in the deed, are taken as correct, unless there be proof of a different line on the ground, which the grantor and grantee fixed as the true one. At the trial of this case considerable evidence was rightly received, tending to show that the parties fixed a line at the time of the sale, and its location on the ground. Other pertinent and material evidence for the same purpose was rejected, and for this the judgment must- be reverend. We are of opinion that all of the offers of testimony, set forth in the several assignments of error, should have been admitted. Judgment reversed, and venire facias de novo awarded.