Wallace v. Maxwell
| Citation | 24 Ky. 447 |
| Parties | Wallace v. Maxwell, & c. |
| Decision Date | 10 June 1829 |
| Court | Court of Appeals of Kentucky |
Boundaries. New Trial. Estoppel. Deeds. Patents. Surveys. Mistakes. Fraud. Presumption. Instructions. Exceptions. Error.
APPEAL FROM THE MADISON CIRCUIT; THOMAS M. HICKEY, JUDGE.
Goodloe and Caperton, for appellant.
Turner for appellees.
Statement of the title of lessors of plaintiff.
This was an ejectment instituted by the appellees against the appellant, to recover a few acres of land. The lessors of the plaintiff claimed under a patent or patents to John Anderson a deed from him to William Anderson, and a deed from him to Maxwell, and the sole inquiry properly involved in the controversy, was, to ascertain what lands were included in the boundary set forth in the deed, from the patentee to his son William. All other matters were too plain for the slightest doubt or difficulty to arise out of them.
Two tracts of land were granted to John Anderson, on the 15th June, 1784, one of 400, the other of 200 acres, adjoining each other, bounded by lines running in the cardinal points. The tracts of 400 acres, according to the patent, extended 320 poles from east to west, and 200 poles from north to south; the tract of 200 acres began at the south east corner of the tract of 400 acres, and extended west 300 poles, and south 107 poles.
Date of patents, and their courses and distances.
On the 2d of July, 1793, John Anderson conveyed to William Anderson, a parcel of the 400 acre tract, said in the deed to be 200 acres, beginning at the north east corner, and calling to run west 162 poles; thence south, 116 poles; thence west, 2 1-3 poles; thence south, 64 poles; thence east, 166 poles; thence north, 180 poles; to the beginning, calling for trees as corners, at the end of each distance.
Deed from patentee to Wm. Anderson.
It is thus manifest, by comparing the patent and deed, that if the patent lines were not shorter than stated to be, between the objects called for, and if the lines in the deed between the corners called for, were not longer than stated to be in the deed, then the southern limit of the 200 acres conveyed, would not reach the southern limit of the 400 acres, as granted, by 20 poles; and yet it is contended by the lessors, that the 200 acres conveyed, may not only reach the southern boundary of the 400 acres' patent, but actually extends over it, into the limits of the 200 acres' patent, and that the lessors must hold part of the 200 acres, because, at the date of the conveyance, both tracts, were owned by the vendor and patentee, in case the boundaries of the deed should cover any part of it.
If vendor hold two tracts of land adjoining, and sell a certain quantity by metes and bounds, tho' it call for one tract; yet if the metes and bounds run into the other, purchaser shall hold according to the metes and bounds.
The law is laid down correctly, if the facts will justify its application, but in the absence of satisfactory proof, as to the position of the southern corners of the parcel conveyed it would never be presumed that they run into the 200 acre tract. All the testimony concurs in showing that the 400 acre tract was not 200 poles from north to south. The southern corners of the tract are not identified by corner trees now standing, corresponding with the patent calls, neither are the southern corners called for, in Maxwell's deed, identified by standing corner trees, corresponding with its calls. The consequence is, that we are dependent on parol proof to locate the corners, or they must be ascertained by running out the corners and distances of the title papers from some known corner. The north east corner of the 400 acre tract, and the south east corner of the 200 acre tract, or the places where they stood, are established by clear, unconflicting testimony. The division corner is not, and as there is not sufficient space between said corners, to give the patent distances, the lines of each patent must be shortened, or one to get its distance must curtail the other. We know of no rule by which to be governed in deciding that the patent distances shall be docked proportionably, for the purpose of establishing the division corner; neither can we say that either patent shall have its full distance, and thereby curtail the other. But it is deemed wholly unnecessary to the merits of this case, to settle how the division corner, between the two tracts, shall be fixed. It is only important to ascertain where the southern corners of Maxwell's deed shall be located, for he has a right to hold up to them. We are of opinion that the weight of evidence very satisfactorily shews that the south east corner of Maxwell's deed, a sugar tree did not stand further south than the letter M, on Tunstall's plat, and the letter A, on Crook's. The testimony of James Anderson, the surveyor who, at the request of the patentee, laid off the 200 acres for the lessors of the plaintiff, is conclusive upon this head, and we see nothing in the record to impeach his credibility sufficiently strong to do away the force of his testimony. On the contrary, there are many things to corroborate it, such as the putting up a stone corner, a little west of the point shown by Anderson, as the place where the sugar tree stood, and the well marked line running west from the stone corner; and the fact that Anderson, in order to ascertain the south east corner of the plaintiff's 200 acres, began the survey at the south east corner of the 200 acre patent, and run north the distance called for in the 200 acre patent, to-wit: 107 poles; and the distance...
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