Gilbert v. Curtis , 37 Me. 45 ( 1854 )

Cutting, J.

— It is contended, that James D. Gilbert, after being released from his covenants of warranty, was still an interested witness, because, in his deed to the plaintiff, he reserved to himself “the right to resume possession of the premises conveyed, and hold the same in case he should fall into.a condition of need, and hold the same to his use, so long as he may be in need of the profits thereof during his life.” But the witness stands indifferent as to the legal effect of the judgment, whether favorable or otherwise to the plaintiff, for it will settle nothing except the rights of the parties in this suit; and besides, whether the witness will ever be under the necessity of resorting to his reservation, is a fact too uncertain, remote and contingent to render him incompetent.

The principal question at the trial was, as to how far westerly on the north line of lot numbered twenty a certain line extended, described in Elijah Gilbert’s deed to Caleb Gilbert, of December 17, 1816, as “about forty rods to a stake and stones.”

The plaintiff offered testimony tending to show that the proprietors of the adjoining lands, in the fall of 1826, erected a monument at a point some twelve rods further westerly, intending to conform to the description in the deed. This, together with some testimony as to the defendants’ claim, constituted all the evidence touching the termination of that line, or the actual original location of the stake and stones. The plaintiff’s testimony was clearly admissible, as showing the acts of the adjoining owners; and the instructions, that such was proper for the jury to consider in determining the true boundaries of the land mentioned in the deed with the qualification, that it was not conclusive, were unexceptionable. The length of the line was uncertain; the monuments referred to in the deed, (supposing them originally to have existed,) had been destroyed. How were the parties then to ascertain the true boundary, unless it were by evidence of the subsequent acts of the adjoining proprietors in amicably ascertaining and establishing the old boundary, more than twenty years before the commencement of the present aetion ? The proof was not admitted to establish a new corner, but to show where the old one originally existed; to “determine the true boundaries of the land mentioned in the deed,” and the ruling was more favorable for the defendant than the opinion of the Court in Stone v. Clark, 1 Met. 378, that “when both parties 'agree as to the boundaries and lines of a lot, they must be taken to be the true boundaries and lines, unless the contrary can be clearly shown.”

The requested instruction was based on the hypothesis, that'no monument was erected at the date of the deed, as to which there was no evidence, and the instructions given were all that the case required and the exceptions must be overruled, and judgment on the verdict.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.