Lewellen v. Gardner , 47 S.C.L. 242 ( 1861 )

The opinion of the Court was delivered by

O’Neall, C. J.

In this case, the only question made by the parties is, whether a line run assigning the plaintiff a less quantity than that contained in his deed is binding upon him. It is clear that it is not, unless he had assented to it, and had possession according to it. This is not pretended • but it was supposed that it might be inferred that he knew of the survey and submitted to it. There was no proof of that fact. The most was, that it might be inferred from his living on the land subsequently, while the defendant occupied the other part. This is merely a rash presumption, from which nothing can be inferred against a title.

It was supposed that the deed of the plaintiff was a mere executory contract. But I think it is as clear a title to the land as any which could be executed. The title is to one hundred and seventy-eight acres, being the east of a tract called the Cook place. The Cook land is ascertained; it was only necessary to begin at the known corner and run the outside line, and then run the parallel lines until one hundred and seventy-eight acres are included, and then close the survey, and the plaintiff’s land is located.

The motion for a new trial is granted.

Johnstone, J., concurred.

Motion granted.