#### Joseph Bobo *v.*Mary Richmond.

1. Where the boundary line of adjoining land-owners, called for in their deeds, and ascertainable with certainty by survey, had been altered by agreement of the parties, and the' occupancy by each up to the agreed line, by improvements and otherwise, had been acquiesced in and continued for a sufficient length of time to bar a right of entry, under the statute of limitations: *Held,*that an answer setting up these facts constitutes a good defense to an action by one of such owners, or his grantee with notice, for the recovery of the land lying between the two lines.

2. The fixing of a boundary line by parol is not within the operation of the statute of frauds — no estate is thereby created; but where the boundary line is fixed by the parties, they hold up to it by virtue of their title-deeds, and not by virtue of the parol transfer.

Reserved in the District Court of Yintou county.

On the 24th of August, 1861, Mary Richmond commenced an action, in the Court of Common Pleas of Yinton county, against Joseph Bobo, to recover possession of about three acres of the west half of the northwest quarter of section 28, in township 11, of range 17, in Yinton county, being a strip of land one hundred rods long, and about six rods wide, along the east line of the west half of the quarter, and described in the petition by metes and bounds, which she alleges the defendant, Bobo, has wrongfully detained from her possession since the 1st day of April, 1861, and asks judgment for the delivery of the possession to her. The answer of the defendant contains three separate defenses:

Defense No. 1 admits the possession by him of the premises in dispute, and denies the plaintiff’s' title thereto, and her right to the' possession thereof.

*116Defense No. 2 sets out, as a bar to the plaintiff’s right to-maintain her action that Amos Shry, the grantor of the defendant, and under whom he claims and holds possession of the disputed premises, was, at one time, the owner in fee-simple of the whole of the northwest quarter of the section named, and on the 3d day of July, 1833, sold to John L. Shry eighty acres off of the west side of ■ the quarter, which Amos and John L. then proceeded to lay off, and to' establish the line between their respective possessions, which they did by a line running north and south through the quarter, on the west line of the premises-now in dispute; that on the same day, Amos Shry conveyed to John L. Shry the eighty acres sold to him, by deed in fee-simple, they both meaning and intending by the deed to grant on the one part, and to take and hold on the other, the eighty acres of the quarter west of the line they had agreed upon and established; that afterward, on the 3d day of February, 1836, David Richmond being desirous of purchasing John L. Shry’s interest in the quarter, applied to John L. and Amos Shry for information in regard to the quantity of land owned by John L. Shry, and was informed by them that John L. Shry owned the west eighty acres of the quarter, and they also pointed out to Richmond the east line of the eighty-acre tract,, which was the line agreed upon and established by Amos and John L. as the boundary line between their respective portions of the quarter; that Richmond proposed to describe the land in the deed as the west half of the quarter, to which both the Shrys objected, if such description would include more than the eighty acres supposed to be contained within the agreed line; that the Shrys and Richmond surveyed the eighty-acre tract, and found that the east boundary line, so agreed upon and established by Amos and John L., was substantially correct, and Richmond staked the line, after which, and on the same day, John L. Shry conveyed the eighty-acre tract to Richmond, by a deed in fee-simple, in which the land sold was described as the west half of the quarter containing eighty *117acres; that Richmond afterward built a fence on the line he had so staked, extending through the quarter, as and for the line-fence between his lands and those of Amos Shry; that at the time Richmond built the line-fence, he was fully advised of all his rights [“ and at -the time of the purchase well knew that the west half of the quarter included more than eighty acres, and went east of the agreed line”]; that during the time John L. Shry and David Richmond were the owners, and in possession of the eighty-acre tract, Amos Shry was in the undisturbed possession of the disputed premises, and, with the knowledge of John L. Shry and David Richmond, cleared and inclosed them, and made lasting and valuable improvements thereon, and that he, and his grantee, Joseph Bobo, so continued in the possession thereof until the commencement of the action by Mary Richmond, who derives her title from Patrick Murdoch, a purchaser at a judicial sale of the lands, as the property of David Richmond, and claims that by reason of the premises the plaintiff is es-topped from claiming title to, or possession of the premises.

Defense No. 3 sets up the bar of the statute of limitations.

The reply of the plaintiff to defense No. 2 admits the ownership by Amos Shry of the whole quarter; the sale by him of a portion of it to John L. Shry; the conveyance by John L. Shry of his interest in the premises to David Richmond, and the derivation of her title, as stated in the answer; and avers that Amos Shry sold and conveyed to John L. Shry, the entire west half of the quarter, which was afterward sold and conveyed by John L. Shry to David Richmond, and denies each and every other allegation therein contained.

The reply also denies each and every allegation of defense No. 3.

At the May term, 1864, the cause came on for trial to a jury, and after the plaintiff had rested her cause, the defendant called as a witness Amos Shry, by whom he offered to prove the facts set up in defense No. 2 of his *118answer, to which the plaintiff objected, and the court sustained the objection; to which ruling of the court the defendant excepted. A juror was thereupon withdrawn, and leave given to the defendant to amend his answer in sixty days, upon payment of costs, for -which judgment was rendered against the defendant; to which the defendant also excepted, and a' bill of exceptions, containing the exceptions to both rulings of the court, was signed and sealed, and made part of the record herein. The amendment afterward made, is inclosed in brackets, and marked quoted, in the answer as above set out.

At the subsequent March term, 1867, the cause, by consent-of the parties, was submitted to the court for trial. The plaintiff, to maintain the issue on her part, gave evidence tending to prove.the allegations of her petition, and also,that the premises conveyed by Amos Shry to John L. Shry were described as the west half of the northwest quarter; that the conveyance from John L. Shry to David Richmond was for the west half of the quarter containing eighty acres ; that the conveyance of the sheriff of Yinton county to Patrick Murdoch, was for the west half of the quarter containing “ eighty acres, more or less; ” that the deed to the plaintiff contained the same description — the west half of the quarter containing “ eighty acres, more or less;” that the line dividing the quarter into east and west halves was not surveyed until after the death of David Richmond, in 1850, at which time Amos Shry was in the actual possession of the premises in dispute, and had the-same inclosed and fenced, and that the quarter section contained one hundred and seventy-two acres, instead of one hundred and sixty acres; and rested her case. Whereupon the defendant, to maintain the issue on his part, called as a witness Amos Shry, by whom he offered to prove all the allegations of defense No. 2, set out in his answer, to which the plaintiff objected. The court sustained the objection and excluded the evidence, to which ruling of the court the defendant excepted; and the defendant, declining to offer other or further evidence under defense No. 2, or *119either of the other defenses, the court thereupon found the allegations of the plaintiff’s petition to be true, and adjudged the premises to her, with costs. A bill of exceptions, embodying the evidence of the plaintiff below, and the rulings excepted to by the defendant below during the progress of the trial, was signed and sealed by the court, and made part of the record in the case.

A petition in error was afterward filed in the District Court of Vinton county, to reverse the judgment of the Court of Common Pleas, upon the grounds that the court erred in sustaining the objection of the defendant in error to the evidence offered by the plaintiff in error, and in rendering judgment against the plaintiff in error, as set forth in the first and second bills of exceptions, which, at the September term, 1868, of the District Court, was reserved for decision in this court.

*Alfred Yaple,*for plaintiff’ in error:

For the doctrine of estoppel as applied to this case, see *Galloway*v. *Brown,*16 Ohio, 431; *Singleton*v. *Whitesides,*5 Yerg. 18; *Lebeau*v. *Bergeron,*14 La. An. 489; *Laverty*v. *Moore,*32 Barb. (N. Y.) 347; *Meyers*v. *Johnson,*15 Ind. 261; *Morrison*v. *Howell,*37 Penn. 58; *Rockwell*v. *Adams,*16 Wend. 285; *Smith*v. *McAllister,*14 Barb. (N. Y.) 434; *Sneed*v. *Osborn,*25 Cal. 619; *Lindell*v. *McLaughlin,*30 Mo. (9 Jones,) 28 ; *Faught*v. *Holway,*50 Maine, 24; *McCoy*v. *Hance,*28 Penn. St. 145 ; *McCormick*v. *Barnum,*10 Wend. 104; *Kip*v. *Norton,*12 Wend. 127; *Hunt*v. *Johnson,*19 N. Y. (5 Smith,) 279; *Pierson*v. *Mosher,*30 Barb. (N. Y.) 81; *Baldwin*v. *Brown,*16 N. Y. 389; *Hagey*v. *Detweiler,*35 Penn. St. 409; *Perkins*v. *Gay,*3 Serg. & Rawle, 331; *Boyd’s Lessee*v. *Graves,*4 Wheat. *413; Jackson*v. Ogden, 4 Johns. 142; *Blair*v. *Smith,*16 Mo. 273; *Philly*v. *Sanders,*11 Ohio St. 490; *Laverty*v. *Moore,*33 N. Y. 658; S. C., 32 Barb. 347; *Sheldon*v. *Perkins,*37 Vt. 550 : 3 Wash, on Real Prop. 81c-85 10); *Knowles*v. *Toothaker,*58 Maine, 172; *Reed*v. *Farr,*35 N. Y. 117; *Rawlin’s case,*4 Coke, 52; 2 Smith’s Lead. Cases (4 Amer. ed.), 545;. *Dibble*v. *Rogers,**12013 Wend. 536; *Rich*v. *Rich,*16 Wend. 663; *Jackson*v. *McConnell,*12 Wend. 421; 19 Wend. 175; *Kellogg*v. *Smith,*7 Cush. 381.

*McAfferty et al.*v. *Conover’s Lessee,*7 Ohio St. 99, differs from this in that, in that case title to a tract or parcel of land was involved; in this, it is merely a question of the location of a boundary between two tracts.

The distinction is wide and well recognized in Ohio as well as elsewhere. *Hunt*v. *Guilford,*4 Ohio, 316; *Hagey*v. *Detweiler,*35 Penn. St. 409 ; *Boyd’s Lessee*v. *Graves,*4 Wheat. 413; *Blair*v. *Smith,*16 Mo. 273; *Sneed*v. *Osborn,*25 Cal. 619; *Calhoun*v. *Price,*17 Ohio St. 96.

*Milton L. Clark,*for defendant in error :

If the case be considered as one of boundary merely, and not of title (which it is not), still I insist that the facts are insufficient to create an estoppel *in pais.*G. & Okey’s Digest, 362, sec. 24; *McAfferty*v. *Conover,*7 Ohio St. 99; 10 Ohio, 288-297; 16 Ohio, 428-431; 6 Ohio St. 169; 8 Ohio St. 270-281; *Liverpool Wharf*v. *Prescott,*7 Allen, 494; S. C., 4 Allen, 22; *Tolman*v. *Sparhawk,*5 Met. 469; *Thayer*v. *Bacon,*4 Allen, 163; *Brewer*v. *Boston § W. R. R. Co.,*5 Met. 478; Herman’s Law of Estoppel, 487; *Hubbell*v. *McCulloch,*47 Barb. 287.

But I deny that the question here is one of boundary merely; it is a question of title. G. & Okey’s Digest, 475, sec. 36; *Walker*v. *Devlin,*2 Ohio St. 593. The rule laid down in the authorities last cited is of a disputed and uncertain boundary, and it is not too much to say that the rule must be infinitely stronger in a ease like this one, where there is •no dispute and where the line is a fixed and certain one— a mathematical line.

The agreed line in this ease was fixed oy mistake.

“ A party is not to be estopped to prove a legal title to his estate by any misrepresentation of its locality, made by mistake, without fraud or intentional deception, although another party may be induced thereby to purchase an adjoining lot, the title to which may prove defective.” Herman’s *121Law of Estoppel, 489, 490, citing *Prop. Liverpool Wharf v. Prescott,*7 Allen, 494; *Thayer*v. *Bacon,*3 Allen, 163; *Coon*v. *Smith,*29 N. Y. 392; *Baldwin*v. *Brown,*16 N. Y. 359; *Russell*v. *Malony,*39 Vt. 580; *Brewer*v. *Boston & Wor. R. R.,*5 Met. 478; *Cook*v. *Babcock,*11 Cush. 210.

The distinction between allowing an estoppel in the case of a boundary merely, and where to allow it would be to transfer title to a part of the lands, seems to be well recognized. The award of arbitrators may settle a boundary so as to be binding on the parties to it, but no award as to the title to any part of the lands would be binding. *Vosburgh*v. *Yeaton,*32 N. H. 567; *Jackson*v. *Dysling, 2*Caine, 198; *Kabberton*v. *McNeil,*12 Wend. 578; *Terry*v. *Chandler,*16 N. Y. 356; 21 Ohio St. 596.

To sustain the estoppel set up, would be, as I have before contended, not to settle a boundary merely, but to transfer the title to the strip of land in controversy.

Rex, J.

Did the Court of Common Pleas err in excluding the testimony offered by the plaintiff in error ?

The facts stated in defense No. 2 of the answer, would, in our opinion, if clearly proven, constitute a good and sufficient defense to the right of recovery claimed in the petition.

Defense No. 2 concedes that the line agreed upon was not the true line, and that the true line was a certain fixed line known to the parties, about the location of which there could be no dispute, though it was never actually run aud established. In this respect this case differs essentially from the facts upon which the opinion was based in *McAfferty et al.*v. *Conover’s Lessee,*7 Ohio St. 99. In that case the true lines and corners were fixed and certain, and the lines and corners sought to be established, were made by mistake, and not by agreement of adjoining landowners, and hence the court, in deciding that case, say, “ that the acts of the parties in making such mistake, and the declarations or admissions induced by such mistake, and the fencing of both parties in accordance with such *122mistake, do not operate in the nature of an estoppel *in pais,*to forfeit the estate.”

Under the state of facts set out in defense No. 2, we hold the principle to be well settled that an agreement upon a division line between adjoining land-owners, different from the true line, the true line being a certain, and not a disputed line, and acquiescence by all the parties in such agreed line, for a length of time that would bar a right of entry under the statute of limitations in relation to real estate, would operate to prevent a party purchasing from one of such owners, with notice of the agreed line, from setting up a claim to any line other than that agreed upon, although the occupancy had not been such as, aside from the marking of the agreed line, would amount to a continuous possession of the entire premises up to the agreed line, for the whole time. *Faught*v. *Holway,*50 Maine, 24; *Adams*v. *Rockwell,*16 Wend. 285.

In *Hagey*v. *Detweiler,*35 Penn. St., the court held: *“A*boundary line between adjoining proprietors which can be clearly traced, may be altered by the acts and agreements of the parties, and a purchaser from one of them, with notice, will be bound by such agreed line.”

In this case the court also held : “ The fixing of a boundary line by parol is not within the operation of the statute of frauds; no estate is thereby created. But where the boundary line is fixed by the parties, they hold up to it, by virtue of their titlerdeeds, and not by virtue of the parol transfer.”

The principle settled in this case is not in conflict with the principle settled in *McAfferty et al.*v. *Conover’s Lessee,*above cited.

As this disposes of the principal question made and discussed by counsel in the case, it is not deemed necessary to notice the question presented by the first assignment of error, further than to say that the point made by the exception to the ruling of the court rendering the judgment for costs, was not well taken ; the rendering of a judgment for costs, against the party asking and obtaining leave to *123amend, is a matter resting entirely in the discretion of the court, and not reviewable on error.

The judgment of the Court of Common Pleas rendered after the amendment of the answer, is reversed, and the-cause remanded for further proceedings.

Day, C. J., and Welch, J., concurred.

McIlvaine, J.

If the principles stated in the syllabus-were decisive of the questions in this case, I would be content with the judgment. But the casé, as I understand it, can not be disposed of by the rules of law there stated nor can it, in my judgment, be resolved in favor of the plaintiff in error upon any correct principle. The sole question in the case arises upon the rejection, by the Court of Common Pleas, of certain testimony offered by the plaintiff' in error, who was defendant below. In order to determine whether this was error, it is necessary to understand the issues in the case, and the circumstances under which the testimony was rejected.

The action in the court below was brought by the defendant in error, Richmond, to recover from the plaintiff in error, Bobo, the possession of a strip of land containing about six acres, situate on the east side of the west half of a certain quarter section.

The answer of the defendant contained three defenses: 1. A denial of the plaintiff’s title; 2. Certain facts alleged to constitute an *estoppel in pais;*3. The statute of limitations. By the reply, issues were joined upon the second' and third defenses.

The substance of the matter set up in the second defense,, by way of *estoppel in pais*(without reciting all intermediate' conveyances from Amos Shry, who was the common-source of title), may be briefly stated as follows: Previous to July 3, 1833, Amos Shry agreed to sell to his son, John L. Shry, “eighty acres off the west side” of the'quarter,, and thereupon the parties “ laid off and established a line ” running north and south through the quarter section, so as-*124to divide eighty acres on the west side from the balance of the quarter. Afterward, on the 3d off July, 1833, Amos executed and delivered to John a .deed in fee for the “wes+ half” of the quarter; “they both meaning and intending,” as was alleged “by such conveyance, to grant on the one part, and to take and h^don the other, the said •eighty acres.” The “ west half” thus conveyed, contained in fact eighty-six acres. After the conveyance, Amos continued to occupy the east part of the quarter up to the line first laid out and agreed upon, and “ made lasting and valuable improvements ” upon the land in dispute, “ believing he was the owner thereof.” The nature of the improvements are not stated. This occupancy by Amos was “with the knowledge and by the consent” of John. In 1836, one David Richmond (at that time the husband of plaintiff, but now deceased), being desirous to buy the interest of John, was shown the line to which the respective •owners of the quarter were occupying, and afterward received a deed of conveyance from John for “ the west half” of the quarter, containing eighty acres.” Soon after his purchase, Richmond built a fence on the east line of his land, as laid by Amos and John Shry, and Amos, “with the knowledge of Richmond, who was fully advised of his rights, and without any objection from him,” continued to •occupy up to the fence so built by Richmond, and “'made ether lasting and valuable improvements, such as planting .a valuable orchard.” During the lifetime of Richmond, he never claimed any other line between him and Amos than the line on which the fence was built, to be the true line. After his death, the defendant, Bobo, purchased all the lands of Amos in the quarter — Amos intending to sell, and Bobo to buy, up to the line of said fence. After his purchase, Bobo occupied up to the fence, claiming to own all the land so occupied by him. The plaintiff' afterward succeeded to all the title of her late husband, and brought this action to recover the strip of land in dispute. The second defense concludes as follows: “Wherefore the defendant claims and insists that the plaintiff is estopped *125from claiming title to, or the possession of said premises.”

The only matters complained of are contained in the bill of exceptions, of which the following is a copy:

> “ Be it remembered, that on the trial of this case, at the-March term, A. D. 1867, of said court, to wit, on the 26th day of April, A. d. 1867, the plaintiff, to maintain the issue on her part, gave evidence to the court (the case having been duly submitted by the parties to the court for trial), tending to prove all the facts stated in her petition, and did prove, and the same was admitted in open court by the-defendant, that the conveyance from said Amos Shry to said John L. Shry (that is, the description of the premises) was for “ the west half ” of said quarter section ; that the-conveyance from said John L. Shry to David Richmond, of February 3, 1836, was for “the west half of said quarter section, containing eighty acres;” that the conveyance-from the sheriff to Patrick Murdoch of said estate of said David Richmond, was for “ the west half of said quarter section, containing eighty acres more or less;” that the conveyance from said Murdoch to the plaintiff' contained the same description a3 said sheriff’s deed; and that the line-dividing said west and east *halves*of said quarter section was never actually surveyed till since the death of said David Richmond, in 1850, when, as the evidence tended to-prove, the said Amos Shry was in the actual possession of the premises in dispute, having the same inclosed and fenced, and which was before said sheriff’s sale to said Murdoch; and the plaintiff also gave evidence tending to prove that.the said quarter section contains one hundred and seventy-two acres instead of one hundred and sixty acres, and rested her case.

> “And thereupon the defendant, to maintain the issue set up in his answer two herein as amended, produced, and had sworn and called to the- stand a witness, the said Amos Shry,. by whom he offered and asked the court to be permitted to-prove all and singular the facts and statements in his said second answer as amended, stated, and contained; to which, or *126proving any part thereof, the plaintiff objected, and which objections the court sustained, so far as to refuse to permit the defendant to prove the same, or any part thereof, as an *estoppel in pais,*but held that the defendant might give evidence of such facts therein stated as were competent for that purpose, to establish twenty-one years’ adverse possession in himself and those under whom he claims of the lands in dispute, to show title by disseizin under the statute of limitations. Whereupon the said defendant disclaimed in open court all intention or purpose to use the said answer as an answer of the statute of limitations, etc., but only as an answer of *estoppel in pais;*and he specially set up the said statutory bar in his said third answer herein, and would introduce all the evidence he might have upon that subject in its proper order and connection under said third answer. Whereupon-the court refused to permit the defendant to offer any evidence under said second answer, or to permit the said witness to testify to any of said facts upon and under said second answer; to which the defendant excepted, and asked the court to sign and seal this his bill of exceptions, and that the same be made part of the record herein, which is done accordingly, this April 27, A. d. 1867.”

The grounds of dissent will readily appear from the above statement of the case. It will be observed that the case, as presented to us upon the record, as I understand it, does not involve any question under the statute of limitations. The defense of twenty-one years of adverse possession, must be regarded as having been abandoned by the defendant. Such was the effect of his disclaimer, made in open court, at the trial. Nor does the judgment rest, upon the doctrine of “an agreed line.” There is no pretense that there was doubt or dispute, at any time, as to the location of the true line between the east and west halves of the quarter section. If its location was not in fact known by the parties, it could have been ascertained by the simplest process. The line laid by the Sh-rys, before the conveyance of the “west half” by Amos to John, was intended to set *127apart eighty acres on the west from the balance of the quarter. Eor that purpose the line was correctly laid. The deed subsequently executed by Amos to John, conveyed eighty-six acres, and included the land in controversy. That such was the legal effect of the deed is not disputed, and there is no claim made that at any time after the conveyance, the owners of the respective halves entered into an express agreement as to the location of the line between the halves. It is true that John and his assigns, owners of the “ west half,” permitted Amos Shry, the grantor of Bobo, to occupy the strip in controversy, and to make valuable improvement, in the line of ordinary husbandry, upon the same. But such occupancy can not prevail against the legal title, until it has been continued for twenty-one years. This is clearly so. Nor was there any question made in the case as to the right of the defendant to reform the deed from Amos to John, on account of mistake or otherwise. It was not alleged that the parties used the description “ west half” by mistake, or that they did not understand its legal effect. A reformation of the deed was not asked for.

That the testimony offered and rejected was competent as tending to prove an adverse possession in the defendant for more than twenty-one years, is not doubted. The court below was willing to hear it for that purpose. Nor is it denied that such testimony was competent as tending to prove a mistake, for which the deed might be reformed. The objection to the decision of the court is this: The defendant sought to defeat an unquestioned legal title, by an alleged *estoppel in pais;*but the facts constituting the supposed *estoppel*were such as tended to prove adverse possession, and nothing more. If such matters are held to constitute an *estoppel in pais,*the result will be that the statutory period, within which an action to recover real estate may be brought, must be ignored, where the defendant can show an adverse possession in himself. This is an abuse of the doctrine of *estoppel in pais.*The “ second defense ” was obnoxious to the objection, that it contained nothing but matter *128of evidence tending to support the plea of the statute of limitations.

White, J., concurred in the dissenting opinion of McIl-VAINE, J.