June, 1830.

#### John Den, ex dem. of Sarah Reed et al. v. Michael Shenck,

From Lincoln.

Parol evidence, to control the description of land contained in a deed, is in no case admissible, unless where monuments of boundary were erected at the execution of the deed. If the description in the deed varies from these monuments, the former may be controlled by the latter.

The course and distance in a deed cannot be altered by parol evidence of ex post facto transactions, unless those transactions tend to prove the erection of some monument of boundary, cotemporaneously with the execution of the deed.

The case of Persm v. Roundtree (1 Hay. 378) commented upon and approved by Hexheiisos’, Chief-Justice.

Where the boundaries of land never were marked, nothing can alter the course and distance in the deed. Therefore, where a deed called for a front of six poles, and parol evidence was received to prove that six poles and six feet were intended, in the absence of proof that the line was run and marked — held, that the parol evidence was improperly received.

A Judge has no right to inform the jury how much weight is to be given to testimony — but it is his duty to inform them when it weighs nothing.

EjectmeNT for a lot of ground in the town of Lin-colnton, tried on the Fall circuit of 1829, before his Honor Judge MartiN.

The only question between the parties was, whether seventeen feet front was a part of lot number 3 in the plan of the town, to which the lessors of the Plaintiff had title, or of lot number 2, of which the Defendant was owner.

The lessors of the Plaintiff proved that lots numbers 1, 2 and 3, were conterminous $ that the beginning of lot number 1 was well ascertained — that the lots were described in the deeds, and also in the plan of the town, as being six poles in front — and by measuring from the beginning of lot number 1, and allowing six poles only to each lot, the land in dispute clearly formed a part of their lot.

*416The Defendant contended, that the lots were in reality laid out six poles and six feet wide, and if this was the fact, the land in dispute as clearly belonged to him.

The lessors of the Plaintiff objected to parol proof of the Jots being wider, than they were described to be in the deeds and in the plan. But the presiding Judge holding that such evidence was sanctioned by a series of decisions in the Courts of this State, too well established to bo overruled, admitted the testimony.

The Defendant then proved, that twenty years before the commencement of (his action, the lessors of the Plaintiff and himself had dug a well and erected a wash-house, so as to stand equally upon their respective lots, as they then thought the dividing line between them to run, allowing six poles and six feet to each lot — that this well and house had been used by them in common — that Mr. Alexander, under whom the lessors of the Plaintiff claimed, more than forty years ago had erected an office on w'hat was supposed to be the corner of lot number 3, estimating the lots to have six poles and six feet front, but by confining the lots to six poles, this office stood seventeen feet in the street next below lot number 3.— Evidence of a general reputation, that the lots were six poles and six feet wdde, was also introduced, and it was proved that in other squares of the town, they were laid off of that width.

It was likewise proved, that under a private act, passed in the year 1816, commissioners were appointed who surveyed the town anew — that upon that survey, the Plaintiff’s lot was found to have seventeen feet front more than it w as entitled to — that in submission to an award of these commissioners, he paid g50 for the surplus — that after this survey, the Defendant claimed six feet of land, before that time admitted by him to belong to the lot number 1, and received possession of it, and agreed to pay the lessors of the Plaintiff glQO for the land now in dispute.

*417His Honor instructed the jury, that if the boundaries of the lots numbers 1, 2 and 3, had been run and marked at the time the town was laid out, then they should be governed by the lines as actually run. That if they were not satisfied by the evidence that the boundaries had been thus run and marked, then that they ought to be governed by the description of the boundaries contained in the deed.

A verdict • was returned for the Defendant, and the Plaintiff appealed.

Gaston, for the Plaintiff.

.Bcvereux, for the Defendant.

Henderson, Chief-Justice,

after stating the case as above, proceeded : — We arc not aware of any such series of decisions, as that mentioned by the Judge below. It is true, that during the time of Judge Hat-wood, there were many decisions on the subject of boundary, which placed the question so much at large, that the description contained in the deed was almost totally disregarded. But many of them never met the approbation of the profession; and for many years, we have in all cases, I believe, except one, adhered to the description contained in the deed; and it is much to be lamented that we do not altogether. The case to which I allude, is where the deed describes the land by course and distance only, and old marks are found, corresponding in age, as well as can be ascertained, with the date of the deed, and so nearly corresponding with the courses and distances that they may well be supposed to have been made for its boundaries, the marks shall be taken as the termini of the land. .This is going as far as prudence permits; for what passes the land not included by the description in the deed, but included by the marked termini? Not the deedj for the description contained in the deed does not comprehend it. It passes therefore either by parol, or by a mere presumption. As far as *418wo know, there has been no series of decisions, by which the description in the deed is varied by marks, unless they were made for the termini of the land described in -yie deed, or supposed to be so made, and to which it was intended the deed should refer, or to which it was supposed the deed did refer; or rather supposed, that the courses and distances corresponded with the marks, and that the same land was described, whether by course and distance in the deed, or by the marked termini. Not recollecting that all admeasurement was uncertain, it was settled that in such cases, the marked termini should control the course and distance mentioned in the deed. But even this does not admit of parol evidence to show, that lines were run six poles and six feet, instead of six poles only, as in this case. Neither does this rule authorize proof, that the parties afterwards made or marked a line between them, that they dug a well, or erected a house where they thought the boundary was ; for such acts or marks were not done or made to describe the calls of the deed. For the deed had been made already, and these were not cotemporaneous transactions. They were not intended to be, and to remain as monuments of description, erected when the tract was separated from other lands, or was passing from one hand to another, and required a name, a description, an identification, by which it shouldhe known from other lands. They were not intended as monuments to point out the boundaries. Suppose the well was not on the line; would the party’s saying that the line was there change its location ? It is true such acknowledgments are evidence of the place, where the marks or termini anco were, but it is only evidence, when it has been shown or appears, there were some marks to which such acknowledgments pointed. Here there is no evidence, that any such ever existed.

Even in cases of any other description than that by course and distance, as where marks, as trees, rocks, water courses, or other things are called for in the deed as *419 termini, the roles of law and Ihe rules of construction make them the termini of the land, and altbo’ they may vary from, and even be in direct opposition to the courses and distances set out in the deed, when established, they control the weaker description of course and distance. Their variance from the course and distance only increases the difficulty of proving, that they are in fact the termini named. But when proven, (by which I mean satisfactorily established,) they are the termini adhered to ; as in the case of Person v. Roundtree, (1 Hay. 378 note,) which is consistent with the most rigid construction of deeds. I therefore think that the parol evidence should have been rejected.

No one can find fault with the law as laid down by the Judge in his charge, as a mero abstract proposition. But there was no such case made by the evidence. There was no proof that the boundaries had been marked. The Judge should have told the jury, that thex'C was no evidence to control the courses and distances, and that the lots were described and bounded only by the course and distance. For altho’ it is not proper for tiie Judge to say how much the evidence weighs, yet if it weighs nothing, it is his peculiar province to declare it With that question the jury have nothing to do.

Per Curiam. — -Let the judgment of the Court below be reversed, and a new trial awarded-