#### *Richards v. Mercer.

March, 1829.

(Absent Bbooke, P.)

Conveyance of Land — Proviso—When Not Executory— Case at Bar. — M. agrees to sell E. a tract of land, parcel of a larger tract held by Mm, to consist of equal quantities of bottom and Mil land, the boundaries of the bottom being fixed, but its quantity unknown: M. by deed, conveys E. a tract of land within specified bounds supposed to contain equal quantities of bottom and hill, with a proviso, inserted after the conveying part of the deed, that if the specified bounds contain less, or contain more, hill than bottom, in the one case, one of the lines described in the deed shall be drawn in so as to exclude the excess of hill land, and in the other case, that the same line should be thrown out so as to include as much of hill as bottom: and it is found, by survey, that the lines described in. *51tBe deed, contain 76 acres less of hill than bottom, so that the line specified in the proviso is thrown farther out to include this 76 acres of hill. Hnnn, that the proviso is not a mere executory contract to convey the additional 76 acres of hill land, hut this 76 acres is conveyed by the deed, and that ■with sufficient certainty.

Same — Mortgage to Secure Purchase Price — When Not an Encumbrance on Title Although There Is No Release — General Warranty* — Case at Bar. — M. agrees to sell R. 822 acres of land, for 5,754 dollars, and the parties covenant, that as the sufficiency of M.'s title is not certain, 1VL shall procure his brother to join him in the conveyance with general warranty to It. which is done accordingly: the 822 acres is parcel of a large tract of 13,500 acres, which was purchased of P. in London, in 1803, and then mortgaged to secure the purchase money £3,375. sterling: this m ortgage has never been recorded in Virginia, and there is strong reason to believe the debt thereby secured fully paid: but no release of it ha,s been obtained. HrijD, this mortgage is no valid objection to a decree for M. against It. for a balance of the purchase money of the 822 acres of land.

Charles Renton Mercer, by deed of bargain and sale, dated January 13lh 1804, and duly recorded iri the county court of Mason in July following; reciting that he had purchased of William Philip Perrin of London, a large tract lying on the Ohio, of near 14,000 acres, which Perrin had purchased of George Mercer deceased, for £'3,375. sterling, payable in four instalments; that this purchase had been made for the mutual benefit of himself, John Renton Mercer and James Mercer Garnett, though the land had been conveyed by Perrin to him alone; and that he had mortgaged the land to Perrin to secure the purchase money; in consideration, that John Renton Mercer and James Mercer Garnett *agreed to pay, each, one third of the purchase money to Perrin, conveyed to each of them, one equal undivided third part of the land, in fee simple.

Partition of this land was soon afterwards made between the two Mercers and Garnett.

By articles, dated August 31st 1809, between John R. Mercer and James Richards, Mercer covenanted to sell and convey to Richards 1300 acres of land on Sixteen Mile creek in Mason county (parcel of a lot which had been assigned to him in the partition) for a price to be ascertained by arbitrament, and to be* satisfied and paid by Richards, partly by a conveyance to Mercer of other designated lands then held by Richards, and partly in money. Atid the articles contained a covenant in these words: “As the sufficiency of the titles, by which the lands aforesaid are respectively held by the parties, is not known to them, for the further assurance of the sufficiency, the said Mercer covenants and agrees, that he will procure Charles R. Mercer to join him in the conveyance of the said 1300 acres of land, and in a general warranty thereof, to the said Richards, or he will convey the lands he may receive from the said Richards, in trust, to such persons as may be nominated by the said Richards, for his benefit, and liable to be sold in the'event of the failure of the said Mercer’s title to the land he may convey to the said Richards or any part thereof, for as much money as may be lost by the insufficiency of the said Mercer’s title.” And Richards, on his part, entered into a similar covenant, for securing to Mercer, the title of the lands he contracted to convej- him in exchange.

This contract was afterwards modified, by agreement between the parties, so as that John R. Mercer, instead of the 1300 acres of land on Sixteen Mile creek, mentioned in the original articles, was to sell and convey to Richards another piece of land on Crab creek and the Ohio, parcel of another designated lot that had also been assigned to Mercer in the partition above mentioned; which substituted tract was to consist of equal quantities of hill land and river bottom, the '"'former at two dollars, and the latter at twelve dollars, averaging for the whole seven dollars per acre. The boundaries of the bottom land intended to be sold, were ascertained and known at the time; but the quantity of bottom was not known; and (of course) it was not known, how the lines were to be run, so as to include an equal quantity of hill land.

In pursuance of the contract, thus modified, John R. Mercer and Charles R. Mercer, by deed, dated November 8lh 1809, conveyed to Richards, a parcel of land lying on the Ohio, in Mason, 1 'bounded as follows ; beginning at or near the mouth of Crab creek, at the corner of the said John R. Mercer and James Mercer Garnett; thence, with the line of Mercer and Garnett, to the back line of the original military survey called Mercer’s bottom, to another corner of Mercer and Garnett in the said back line; thence northwardly as far along the same (the back line), as to the common point of intersection of the said back line with a line running from the lower corner of Caroline Maret’s lot, at the foot of the hills, parallel with the said Mercer and Garnett’s line; thence (that is, from the point of intersection of the said back and parallel lines) with the parallel line, to the corner of Caroline Maret’s lower line (this is the course called the short parallel), to the river Ohio; and thence with the meanders thereof to the beginning, containing by supposition 700 acres of hill and bottom land. ’ ’ Habendum, ‘ ‘the said tract or parcel of land” with the appurtenances &c. to the said Richards, his heirs and assigns : “Provided that should the hill land within the said boundaries, exceed in number of acres the river bottom therein contained, then the said hill land shall be reduced to the same extent with the bottom, by running the short parallel above mentioned, as much nearer to the line of Mercer and Garnett aforesaid, as may be necessary for that purpose; and should the hill land, on the other hand, be less in quantity than the bottom within the said boundaries, then the quantity of hill land shall be extended, by running the said short parallel as much farther from the said Mercer and Garnett’s line, *as may be necessary *52for that purpose, and thus having equalized the number of acres of bottom and hill, provided the whole quantity shall fall short of 700 acres, there shall be a reduction from the purchase money, of seven dollars per acre for every acre it may so fall short; on the other hand, should the said tract of land exceed in quantity 700 acres, then for every acre of such excess, seven dollars per acre shall be added to the price,” to be paid by Richards, as provided by the articles of August 31st 1809, in respect to the 'money thereby contracted to be by him paid. This deed contains a covenant of general warranty of both John F. and Charles F. Mercer.

Richards, in May 1810, procured a survey of the land he had thus bought, to be made by the surveyor of Mason, wherein the bottom was represented to contain 373 acres, and the short parallel was so run as to include 373 acres of hill land; in all 746 acres.

Richards made several payments on account of the purchase money; but before the transaction was closed, John F. Mercer died, and by his will devised his estate to Charles F. Mercer, and appointed him executor: who, in July 1819, exhibited his bill against Richards, in the superiour court of chancery of Fredericksburg, setting forth the facts above stated.; complaining, that in the survey which had been made at Richards’s instance, in May 1810, there were in truth 441 instead of 373 acres of bottom, and only 305 instead of 373 acres of hill land; insisting that, consequently, according to the terms of the proviso contained in the deed of November 8th 1809, Richards was bound to take 136 acres more of -hill land at the price of seven dollars per acre; and praying, that the land might be laid off to Richards conformably with the true intent of the covenants and of the deed, and that he might be decreed to settle and to pay the balance of the purchase money.

Richards, in his answer, insisted on the survey of May 1810, as fair in itself, and one in which the Mercers had acquiesced.

*In the progress of the cause, the chancellor ordered a survey, which was made and returned by the surveyor of Mason. It appeared by this survey, that the quantity of bottom land was 411 acres; and the line, called the short parallel, was thrown out, so as to include the equal quantity of hill land; making in all 822 acres; that is to say, 76 acres more than Richards’s survey had made it.

The chancellor also ordered an account, to ascertain the balance of the purchase money due from Richards. The commissioner reported that both parties acquiesced in the last survey, and stated the balance to be 1,774 dollars, with interest &c. With this report both parties were content.

But Richards, in the mean time, by leave of the court, filed a supplemental answer; wherein he stated, that since filing his former answer, he had discovered, that the whole tract of 14,000 acres, whereof the land he had bought of John F. Mercer was parcel, had been mortgaged by Charles F. Mercer to William Philip Perrin of London, to se-1 cure ^3,375. sterling, payable in four equal annual instalments, with interest from October 1803; and that this mortgage (for aught he knew) was still a subsisting security and incumBrance on the land.

Upon this, all the deeds affecting the-title, were exhibited. The land was originally granted to George Mercer, by the colonial government, by patent dated in December 1772, wherein the quantity is-stated to be 13,532 acres. George Mercer, by deed of lease and release, dated in November 1773, conveyed the whole tract to William Philip Perrin (described as being-of the parish of St. George, Bloomsbury, in the county of Middlesex). By deed of lease and release, dated October 1803, W. P. Perrin (described in this deed, as being-of Dorset street, in the parish of St. Mary Le Bone in the county of Middlesex) conveyed the whole tract to Charles F. Mercer,, for the consideration of ^3,375. sterling,, payable in four instalments: And C. F. Mercer immediately mortgaged it to Perrin (described here also as of Dorset street &c.) as a security for the purchase money. *He also gave his bonds for the debt, in which Mr. Monroe, then. American Minister at London, and a Mr. Rennolds of London, were his sureties. And, in July 1809, Perrin conveyed the land’ and assigned the mortgage and the debt toRennolds. The conveyance from Perrin to-C. F. Mercer, was recorded in the general court; but neither Mercer’s mortgage to Perrin, nor Perrin’s assignment thereof toRennolds, was ever recorded in Virginia.

Mercer averred, that the whole of the debt due to Perrin, had long since been paid; and he adduced evidence, which rendered it highly probable, though not certain, that it was paid. But no release of the mortgage, either by the heirs of Perrin or of Rennolds (they were both dead) was produced; and it seems, that for the want of knowledge who or where they were, such release could not be procured. It appeared, indeed, that Mercer had forgotten the execution of the mortgage, till he was reminded of it by the supplemental answer of Richards.

The chancellor was of opinion, that the mortgage to Perrin was no obstacle to the relief prayed by Mercer; and he decreed, that Richards should pay Mercer the balance of 1,774 dollars, with interest &c. and the costs of suit: but the decree did not require, that Mercer should convey to Richards, the surplus 76 acres of hill land, included in the lines of the survey made under the order of court, which ttie decree compelled Richards to take, and the price of which constituted part of the balance of purchase money decreed.

Richards appealed to this court.

Stanard, for the appellant,

made two objections to the decree. 1st. The deed of November 1809 conveys the land lying within certain defined metes and bounds, and no more; and the survey made under the order of the chancellor having departed from those metes and bounds, and thrown out the short parallel, so as to include 76 acres of hill land lying without the metes and bounds specified in the deed, that deed did not pass this additional 76 acres. *53The '^proviso in the deed is an executory contract for the conveyance of such additional quantity ; but it is not itself *-a.*conveyance, nor can it enlarge the actual conveyance that precedes it. It is apparent, that the deed was not intended to convey, by its own force, more than the quantity contained within the bounds therein specified. The chancellor, therefore, ought not to have decreed the unconditional payment •of the whole purchase money, including the price of the additional 76 acres, without providing that Mercer should make a conveyance thereof to Richards.

2d. The proof of the payment of the debt due to Perrin and secured by the mortgage, is insufficient to establish the fact; and if the debt be paid, yet the mortgage has not been released, and therefore the legal estate is stiil outstanding in the heir at law of Perrin or of Rennolds; neither has the heir at law of Perrin or of Rennolds been made a party, so that the court could decree a release of the mortgage. John F. Mercer, at the time of his sale to Richards, and Charles F. Mercer, at the time of the decree, held only an equitable estate. And the court ought not to have made the decree until the legal title was got in; or at least it ought to have made the payment of the balance of the purchase money by Richards, •dependent on the consummation of his title.

Harrison and Johnson, for the appellee.

As to the 1st point: To understand the description of the land contained in the deed, •and especially the effect of the proviso, it must be remarked, that, at the time the ■deed was made, the river boundary in front, the western line (Mercer and Garnett’s line), the back line of the military survey, the eastern line running out from the river quite through the bottom to the very foot of the river hills but no farther (Maret’s lower line), and the back line of Maret’s land, were all fixed and known to the parties ; and the river hills gave the line which •divided the bottom from the hill land; so that the boundaries of the bottom land were fixed; but the quantity to the bottom land had not been ascertained; consequently, it was not known *where the short parallel, or the line which was to be run parallel to Mercer and Garnett’s line, and which was to be run from the back line to Maret’s land, ought to be located, so as to include as much of hill as there was of bottom land; and consequently, too, the number of acres intended to be sold was not ascertained. Therefore, it was not intended to fix the location of the short parallel by the deed, but to prescribe a certain method of locating it: the quantity of bottom land within the known boundaries of it, was first to be ascertained ; and then the short parallel was to be drawn in, or thrown out, so as to give an equal quantity of hill land. The function of the proviso is to explain the previous description of the land conveyed; it is part of the description. The deed leaves the short parallel ambulatory; but it prescribes a plain and simple mathematical process for the location of it; and wherever it should by that process be located, it was the effect as well as the intent of the deed, to convey all the land within it, and no more. Greater precision and certainty cannot be required. Accordingly, Richards made no complaint in the court of chancery, as to the sufficiency of the deed to convey all the land included in the last survey, which fixed the location of the short parallel; and the amount of the purchase money, by his express assent before the commissioner, was computed with reference to the quantity shewn by that survey.

As to the 2d objection, there are many considerations any one of which would furnish a sufficient answer, much more all combined. 1. The mortgage to Perrin was never recorded in Virginia; and it was a conveyance of real estate to an alien, for Perrin is therein described as of Dorset street, in the parish of St. Mary He Bone in the county of Middlesex; and though the instrument might have been available as a security in equity, yet as there can be little doubt that the mortgaged debt has been satisfied, it could never avail him to recover the naked legal .title. 2. There was certainly no fraudulent concealment of this incumbrance practised by John F. Mercer upon Richards: On the contrary, *the probable defect of the title is noticed in the original articles of August 31st 1809. Richards, in all probability, had actual notice of this mortgage, when he purchased: and if he had not, he might with the exercise of the slightest diligence have had notice of it: if he looked at all into the title of his vendor (as all purchasers ought, and almost all do) he would have seen a recital of this mortgage in the deed under which his vendor immediately claimed, then of record in Mason county court open to his inspection; namely, Charles F. Mercer’s deed to his brother and Mr. Garnett, of January 13th 1804. He took, and he has hitherto held, possession, undisturbed. No suit has been prosecuted; none is threatened. He cannot now object this technical and patent, if not known, defect in the title. Sugd. law of Vend. 2, 8; Id. ch. 9, § vi. 345, 6, 7; (a) Ralston v. Miller, 3 Rand. 44; Vail v. Nelson, 4 Rand. 478. And 3. Richards knew there were doubts concerning the title, and stipulated for a particular security; a covenant of general warranty, wherein Charles F. Mercer should join with the vendor. This security he has got. He can ask no more. Sugd. ch. 9, *§*iv. 331; Harg. Co. Litt. 384, a. note 1.

Stanard, in reply. The reasoning, by which the appellee’s counsel endeavour to obviate the first objection to the decree, conflicts with the principle on which the bill is framed, its prayer and its object. The argument concludes, that the deed of November 1809, was an executed contract in all its parts, and that this is a suit only to recover the purchase money, whereas the bill treats the proviso contained in the deed as an executory covenant, and prays a specific execution of it. And the bill takes the right ground. There is not a single word of grant or conveyance in the deed, that applies to a foot of land lying without *54the lines therein specified: the proviso surely contains no words of grant; it is, in its terms, an executory contract; there is ^nothing in the context, to give it a meaning variant from that which its words import; and no principle of equity or even of convenience requires, that the construction should be strained in the least. The short parallel is defined by the deed as precisely as any other line: the deed gives its course, its terminus a quo and'terminus ad quem; calls for a straight line, parallel to Mercer and Garnett’s line, from Maret’s corner to the back line of the military sur vey; and conveys all the hill land included within that line, and neither more nor less. The proviso is a covenant providing for a future change of this line. Its language is prospective throughout; providing what should be done afterwards, and not even professing to declare what was done, or intended to be done, in this particular, by the deed. If the short parallel as located bj’ the deed, should be found to include more of hill than of bottom land, the proviso bound Mercer to take a re-conveyance of the excess, and to make a proportional abatement from the price; if found to include less of hill than of bottom, Richards was bound to accept a conveyance of, and to pay for, an additional quantity of hill land. This is the effect of the proviso According to the construction of the appellee’s counsel, the deed does not, proprio vigore, pass the additional hill land; it operates -to convey it, only' by force of the future survey: in effect, the survey, not the deed, is the operative conveyance of the additional 76 acres of hill land: and whether a survey can be a conveyance of land, let the court judge.

Then, as to the incumbrance of Perrin’s mortgage. That this mortgage was not recorded, can no wise help Richards, seeing that he has notice of it, before payment of the purchase money. Supposing Perrin an alien, and admitting that therefore he cannot claim to take and hold under the mortgage, as a conveyance, , at law, it is nevertheless effectual as a security for the debt in equity; and I submit, that the evidence does not sutface to establish the payment of the debt. But, there is no proof that Perrin was an alien, unless it be impossible that an American citizen can be domiciled 'li'in London. And if the description of Perrin’s domicil in the mortgage, prove him an alien, it proves too, that he was a british subject; so that he was competent to take and hold under George Mercer’s conveyance of November 1773; and, under that conveyance, as the land was never confiscated, he continued to hold it, till the 6th article of the treaty of 1783 prevented any future confiscation, and till the 9th article of the treaty of 1794 secured his title, and provided, that with respect to this subject, and the legal remedies incident thereto, he should not be regarded as an alien, but might grant, sell or devise it, in like manner as if he was an American citizen. (1 Bior. Laws D. S. 205, 212.) That Perrin was competent to sell and convey the subject in 1803, the appellee himself must maintain ; else Richards has no title at all. Can it .be doubted, that the treaty of 1794 enabled him to take an immediate mortgage of the same subject, to secure the purchase money? The argument deduced from the supposition, that Richards had actual notice of Perrin’s mortgage, or at least that that incumbrance was a patent defect in the title, of which he might without gross negligence have acquired knowledge is refuted by the fact, clearly appearing on the record, that this mortgage was so little known, or had made so little impression on the Mercers themselves, that Charles' E. Mercer, who executed the instrument, had forgotten that it ever existed. With what reason can it be contended that Richards was conusant of that of which the Mercers were ignorant? There is as little reason to impute knowledge of the defect to him, as concealment of it to them. The proposition, that the parties have stipulated, and Richards has obtained a particular security against defects of title, namely, a general warranty of the land, in which both the Mercers joined, is quite destitute of foundation, unless the appellee be at liberty to tear a covenant out of the contract of August 1809, for the sale of 1300 acres of land on Sixteen Mile creek, though that contract was completely abandoned, and to insert it in the new contract, evidenced by the *deed of November 1809, for the sale of another parcel of land on Crab creek. Let it be remembered, that this is not a case of a purchaser coming into equity, asking relief on account of defect of title, after having accepted a conveyance, and paid the purchase money, but of a vendor, claiming specific execution and payment of the purchase money, and a defect of title discovered, before the purchase money is all paid, and before specific execution decreed. In such a case, the very authorities cited for the appellee, prove that the vendor is bound to clear the title. Sugd. ch. 9, $ vi. p. 345. The objection to the title is not merely technical: the legal estate is outstanding: and this is so serious an objection, that it has become a' settled and invariable rule, that a purchaser shall not be compelled to accept a doubtful title, nor be forced to take an equitable one. Sugd. ch. 7, *l*III. 242.

*

 Conveyance of Land — Defect in Title — General Warranty. — A vendee in possession of land under a conveyance of general warranty has no claim to relief in equity against the payment of the purchase money on tie grounds of a defect in title where there has been no actual eviction or suit depending or threatened. Beale v. Seiveley, 8 Leigh 675, citing Ralston v. Miller, 3 Rand. 44; Yancey v. Lewis, 4 Hen. & M. 390: Grantland v. Wight, 5 Munf. 295; *Richards v. Mercer, 1 Leigh*125; Koger v. Kane, 5 Leigh 606. See a discussion of this subject in *foot-note*appended to the last-named case. See also, citing the principal case on this subject, Miller v. Argyle, 5 Leigh 465; Wamsley v. Stalnaker, 24 W. Va. 222.

(a)

 The edition of Sngden’s treatise, to which these references are made, is Ingraham's Philadelphia edition of 1820. — Note in Original Edition.

COALTER, J.,

compared the price at which John E. Mercer sold Richards the tracts of 822 acres, with that at which Charles E. Mercer bought of Perrin the whole military tract of 13,582 acres; and shewed, that the purchase money of the small parcel bought by Richards, containing not a sixteenth of the whole tract, amounted to about a third of the purchase money for which the whole tract had been bought of Perrin: whence, he said, it might be fairly inferred, that if the whole debt secured by -the mortgage to Perrin, were yet unsatisfied, there would be land enough, and much more than-enough, to satisfy the whole debt, without touching the parcel held by Richards. But he remarked there were many circumstances (which he stated and commented on) to raise a belief that the debt to Perrin had been fully paid.

And (he proceeded) though these circumstances do not amount to absolute proof of the payment of the debt secured by the *55mortgage to Perrin, yet they go so strongly to establish a belief that this must be the fact, as to authorise us (as it seems to me), especially connected with the other circumstances of the case, to leave the parry to his remedy on *the covenants in his deed. Those other circumstances are, that first stated, namely, the improbability that the parcel of land bought by Richards, could in any event be touched by Perrin’s mortgage, and the further fact, that the parties, being ignorant as to the goodness of the title to the lands given in exchange under the contract, or being apprised that difficulties of some kind or other did exist, agreed mutually to procure others to join them in the deeds and covenants of warranty, so as to secure them against such defects. This, therefore, is stronger than the ordinary case of covenants by a vendor alone; a particular security was required, and that very security given: and if, in an ordinary case, a court (under such circumstances as this case presents) might turn the party over to his covenants, a fortiori may it be done where security was required and given.

It is said, the legal title is still outstanding, and the party has a right to have it in. If, however, the debt has been paid, as there is every reason to believe, can actual notice of an unrecorded mortgage, after payment, affect the party at law? Is it not void for want of registry, unless notice is given before the debt is discharged? I incline to think there can be no, danger to the party on this ground. The deed to Richards does not lead him, by reference, to the deed of Charles If. Mercer, to his brother and Mr. Garnett, in which alone the mortgage is mentioned; and he swears he had no actual notice of the mortgage until May 1822. At most, then, he had before that time, such implied notice as might affect him in equity in relation to the creditor, had the mortgage been undischarged. It seems to me, it could not have been the intention of the legislature, that notice of an unrecorded satisfied mortgage should affect the party at law.

I should be sorry to be obliged to say, that a mortgage executed in a foreign country, held up for so long a time, and when it must be so difficult to get releases &c. shall be a sufficient ground, on which to hold up the purchase money, especially under the circumstances attending this case. How long is it to be held up? *The mere possibility that the legal title conveyed by the mortgage may prove a disturbance to Richards’s title, resting on the intire improbability that the debt has not been paid, or that it cannot be paid out of the remaining lands, is surely too slight a ground, on which either to vacate the contract, if that was asked, or to tie up the purchase money to an indefinite period of time. The covenants and security given in the deed ought to be enough to cover this surmise of a want of clear title. How could Perrin disturb the title, either at law or in equity, if the money has been paid, or can be satisfied out of the remaining lands, or can be made out of Mercer?

But it is further said, that the deed does not convey that small portion of the hill land, which is now embraced by the moveable line, as now established by the decree in this case.

This seems to be an objection thought of, for the first time, in this court. It is not taken in the answer; and it is not to be supposed, that, if any doubt had been suggested in the court below, there could have been any hesitation *in*that court to decree a conveyance thereof, either by the party, or by a commissioner. If there were any doubt on this subject, however, and if the decree were to be reversed on such ground, the costs ought to be paid by the appellant, the appellee having substantially prevailed. But can there be any doubt as to this matter?

The bottom land was bounded by the river on one side, and by established lines on two of the other sides, running out from the river to the hills ; and was bounded on the other side by the hill land. The whole bottom land is conveyed, but the quantity was not precisely known. Had the parties established the lines along the foot of the hill, and stated them in the deed, leaving the quantity unascertained, and then made the same provisions as are now contained in the deed; it is believed, all would agree that the deed would convey one equal quantity of hill land. The parties intended a conveyance, and not an ex-ecutory contract, as to the hill land; and the question is, whether, as the margin of the hill xland was not ascertained in the deed, but as that must now be a matter resting on opinion only, the deed can operate a conveyance? This objection, if well founded, might (it seems to me) go further than in the argument it was *thought*fit to push it: it might *go to*shew that the contract itself, considering it executory, could not be executed for uncertainty. Who is to form this opinion, if the parties, themselves, have left it vague? But if others can ascertain the line of division between the hill and bottom land, then so soon as that is done, it is ascertain, as if the parties themselves had done it in the first instance, and the residue follows by mathematical certainty. That is certain which can be rendered so. Suppose the parties themselves, or a surveyor for them, had run this border line, so as to ascertain the quantity of bottom land, and thej' had thus been satisfied as to that, and the surveyor had proceeded, with like consent, to close and mark the open line, and Mercer had afterwards brought his ejectment for the land, thus embraced in the survey, is it possible, that any court of law, these facts appearing, could hesitate in deciding that the deed covered this land?

But here is a decree settling the boundary, in a suit brought by Mercer, claiming to settle it precisely as it has been; and it is, in fact, by the assent of both parties to the survey, settled to their mutual satisfaction. Who can disturb this? not Mercer surely ; and if he cannot, no one under him can; no one can, except one having title paramount to both. No mere intruder could prevail against this title, thus confirmed by a decree founded on assent as to the boundaries. Hence, no one in the court *56below dreamed of the necessity of a farther conveyance. The strong reasons urged in the argument in favor of this position also furnish additional ground to shew, that no doubt ought to exist on this point.

On the whole, therefore, I think the decree ought to be affirmed.

The other judges concurred, and the decree was affirmed.