Moody v. Nichols , 16 Me. 23 ( 1839 )

After advisement, the opinion of the Court was drawn up by

Shepley J.

The deed from John Chandler to Gilman Moody, conveyed one hundred acres and no more. The grantee having sold twenty acres, the remainder during the samo or following year was surveyed by the direction of the grantor, and a line Was marked on the westerly end of the lot to define its extent. This line was never in dispute between these parties. The grantee erected a brush fence upon it extending nearly across the lot, and has continued it more than twenty years. By this the grantee will acquire a title to the extent of his possession, if there be not proof of his acts or declarations to defeat it. But if the title were so acquired, it would not be by virtue of the rule, that where monuments are named in a conveyance and are afterward erected by the parties to conform to it, such monuments are to be regarded as the ones named in it; but by virtue of a rule equally well established, that the parties may agree upon a line of boundary, and when they have so agreed, and the possession is in accordance with it, such boundary after an acquiescence for so long a time, as to give title by disseizin, will not be disturbed, although found to have been erroneously established, unless there be clear proof that such possession was not adverse. Jackson v. Van Corlear, 11 Johns. R. 123 ; Stuyvesant v. Dunham, 9 Johns. R. 61; S. C. 11 Johns, R. 569; Gove v. Richardson, 4 Greenl. 327.

The declaration made by the grantee to the surveyor employed by the town, that if more than eighty acres were found in his lot he did not claim it, it was a mistake, and he wished it set to the grantor, would not change the possession. It does not appear, that the surveyor then marked any new line, although upon the plan of his survey then made the surplus was designated as the land of the grantor. Nor that the grantor or grantee had any knowledge of, or recognised this act of the surveyor. And without any assent or recognition of these parties it can have no influence upon their rights. It was under these circumstances, that the grantor in 1834 made a deed of conveyance of the adjoining land to the Andrews,. from whom the defendant derives his title. In that deed the line of boundary commences “ on the west line of land,” sold to Gil-man Moody, and after the other lines are described, it returns “ to the west line of land sold to said Moody, thence south west on the west line of said Moody land to the place of beginning.”

When the grantor conveyed to the Andrews, he knew, that no monument or line had been established on the west end of the lot at the time of the first conveyance, and that a line had been after-' ward agreed upon and marked, and that it had so remained for many years undisputed. The language of the deed is peculiar. Whenever it has reference to the westerly end of the Moody lot it speaks of the west line, and when to other parts of the lot it is “ to land sold to Gilman Moody.”

It is not reasonable to conclude that such peculiarity, occurring by the use of one phrase twice, and the other thrice in the same deed, was accidental. And if not it indicates the intention of the parties, that the land conveyed to the Andrews should be bounded by the “ west line,” of the Moody lot as it had been long agreed upon and established by the parties.

It was decided in Crosby v. Parker, 4 Mass. R. 110, that where a line of boundaries commenced upon “ Joseph Wilson’s land,” it must refer to land owned and not to land occupied by Wilson. And where one lot is bounded on the line of another lot,, which is to be ascertained from monuments, it may not usually be intended to designate any other, than the true line of the lot. But in this case, there was no line on the west end of the lot to which the deed could refer other than the one which had been agreed upon, unless it can be supposed, that the parties had reference to some imaginary line to be ascertained by admeasurement. Taking into consideration the language of the deed in connexion with the facts proved, such a supposition is inadmissible ; and the intention is apparent, that the land conveyed 10 the Andrews should be bounded by the Moody lot, as the; west line had been before established. Such intention must be respected, and the result is, that the defendant acquired no title to the lot upon which he entered, and cannot defend against the plaintiff, who had at least a posses-sory title, which can be disturbed only by some person exhibiting a better one.

Exceptions overruled.