Hunt v. Devling

Per Curiam. The exceptions to evidence have not been earnestly pressed; nor could they be with a hope of success. The act of Joseph Hunt, the father, in marking a line of division betwixt his children in possession before he devised their portions to them, was certainly evidence of boundary. The possession of the grantee of his daughter Hannah Shade, for a period sufficient to acquire a title by the statute of limitations, and the intermediate conveyance from the sheriff to the plaintiff, sufficiently vested her title in him, to which her conveyance, though executed when she was covert, was admissible as inducement. Most of the remaining exceptions depend on the power of an administrator to waive the condemnation of land levied on a judgment against him; of which it is impossible to doubt when it is considered that land is treated and sold as a chattel for payment of debts. It would be strange, therefore, if he, who may affect it by the confession of a judgment, could not affect it by a much less decisive act. The heir, by our practice, is not known as a party on the record. In relation to the other bills, it is sufficient to say that the possession of the parties in reference to the line on the ground, was admissible; but that their declarations of quantity were inadmissible. The charge was in substance correct. A devise to children of portions assigned them by a line marked on the ground by the devisor himself, must be taken to have been predicated in reference to such boundary, though it be not expressly referred to in the will; and it will consequently govern in preference to the quantity called for, which is matter of description. But the recognition of this line by the devisee or those who claim under them, would itself be conclusive. A line fixed as a permanent boundary by those who do not exactly know their rights, and who profess to act on that supposition, is fixed in the very spirit of compromise. It is what we call a consentable line, peculiarly sacred in cases of family arrangement, which requires not the previous existence of a flagrant contest in addition to the act of the parties, to constitute it. But the occupants have since held in conformity to it by adverse possession for more than one and twenty years, and they are reciprocally barred by the statute of limitations. The court did right, therefore, not to leave the question to the jury as an open one. , Judgment affirmed.