#### H. E. DAVIS v. J. B. RUSSELL.

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF WARREN COUNTY.

Argued May 4, 1891

Decided May 18, 1891.

<a) Land was conveyed to Morse and Russell by a deed calling for Rockwell’s land as the boundary on the south. Afterward, on an equal partition by a line running east and west, Russell conveyed the southern half to Morse, the deed calling for the same Rockwell land on the south:

1. Though the parties, when making the partition, by a mutual mistake measured from a fence supposed to be on the Rockwell line, but in fact three feet and more south of it, yet they and their privies in title were bound by the actual Rockwell line called for.

*2.*The grantee of Morse by a deed also calling for .the Rockwell land as the boundary on the south, and taken with knowledge of the same mistaken measurement, was entitled to recover from Russell a strip, equal to the deficiency, still remaining in Russell’s possession.

Before Paxson, C. J., Sterrett, Green, Williams and ZMitchell, JJ.

No. 68 January Term 1891, Sup. Ct.; court below, No. 64 .December Term 1887, C. P.

On November 16, 1887, H. E. Davis brought ejectment against J. B. Russell. Issue.

The controversy arising at the trial on May 16, 1890, is illustrated by the plan on the following page.

It was shown that, on February 13,1882, Carrie W. Denni*427son, owning the north half of two lots in Warren borough fronting on High street, on the north, and running south along Poplar street, on the west, conveyed the same to D. R. Morse and J. B. Russell, bounding the property in the deed by land of F. Rockwell, on the south. To divide between them the property purchased, Morse and Russell, on August 16, 1882, executed a deed in partition, by which Russell conveyed to Morse his interest in the south half of the land purchased from Carrie W. Dennison, bounded as follows: “ Beginning at the northwest corner of Rockwell’s land on Poplar street, thence running east along said Rockwell’s north line to lot No. 820, thence north along line of last-mentioned lot 58£ feet, thence west parallel with said Rockwell’s north line to Poplar street, thence south along Poplar street 58¿ feet to the place of beginning; ” and, by the same deed, Morse conveyed to Russell his *428interest in the same purchase, bounded as follows: “ Beginning at the northwest corner of lot No. 322, at the intersection of Poplar and High streets, running thence south along Poplar street 58£ feet, thence east parallel with High street to lot No. 320, thence north along line of last-mentioned lot 58¿ feet to High street, thence along High street west to the place of beginning.”

*427

*428D. R. Morse and J. B. Russell testified to the effect that before the deed in partition was finally executed, the parties went upon the property to measure off Morse’s lot; that, beginning at the Rockwell *fence,*they measured north along Poplar street 58| feet, and there cut a notch in the rail of the picket fence, to mark the point of division ; that they then measured thence north to. the corner of High street, to find how much Russell would have, and found he had 62 feet, 1| inches; that Russell objected to the deed as having an erroneous description, but, being assured that it would make no material difference, the deed was executed. Afterwards, Russell sold off the eastern half of his lot.

On November 23, 1882, D. R. Morse conveyed his lot to David Morse, pointing out the Rockwell fence as the south boundary, and the notch in the Poplar street fence as the north boundary. David Morse, on May 21, 1883, conveyed to H. E. Davis, the plaintiff herein, the Rockwell fence and the notch in the Poplar street fence being pointed out to Davis by D. R. Morse, the grantor’s agent, as indicating the boundaries. These deeds to David Morse and from David Morse to Davis called for Rockwell’s line as the southern boundary. Subsequently, Davis placed $ post, as was alleged, at the notch in the Poplar street fence, but, discovering afterward that the Rockwell *line*was 3.3 feet north of the Rockwell fence, brought this ejectment for a strip of equal width remaining in the possession of J. B. Russell.

At the close of the testimony, the court, Brown, P. J., charged the jury:

The plaintiff, H. E. Davis, brings this ejectment, claiming that the defendant, J. B. Russell, is in the wrongful possession of a strip of land somewhat in excess of three feet in breadth, running from Poplar street eastward. It appears by the evi*429dence, that at some time and in some way, the two lots Nos. 821 and 322, were divided between the owners by a line running east and west. [At all events, it appears by the evidence and is undisputed that Carrie Dennison at one time owned the north half of these two lots. She made a sale to J. B. Russell, the defendant, and D. R. Morse, of the north half of these two lots. It appears by the evidence that Mrs. Tamar Rockwell owns the south half of these two lots. After the deed from Carrie Dennison to J. B. Russell and D. R. Morse for the north half of these two lots, these parties divided it as between themselves. Russell and wife by deed of partition, deeded to Morse the south half of the identical land bought of Carrie Dennison, .and Morse deeded to Russell the north half of the same lots. D. R. Morse and wife subsequently deeded his land, and I believe by the same description, to David Morse, designating it as the south half of the north part of the two lots. And David Morse and wife deeded to the plaintiff the south half of the lot, designating it, not as the south half of the lot, but as the same land that was deeded by Carrie Dennison to D. R. Morse and J. B. Russell, and the same land, I believe the deed designates it, as partitioned between Russell and D. R. Morse.] *7*

It appears by the evidence, and, so far as this is concerned, there does not seem to be much dispute between the parties, that the actual, true dividing line between the north half of the lots 321 and 322, is at a distance something in excess of three feet northward of the fence of Rockwell. And that distance, or just the equivalent or nearly so, is the amount of land in dispute in this case. Now this is the position of the case. We will answer the points presented by counsel; then you will see the question of fact upon which the case turns.

The plaintiff requests the court to charge the jury:

1. That the evidence or testimony of D. R. Morse is incompetent to affect or vary the boundaries fixed by the deeds in evidence.

Answer: This point is affirmed, as we think there is no evidence that would authorize you to consider anything other than the boundaries as fixed by the deeds in evidence.1

2. That the evidence or testimony of, J. B. Russell is incompetent to affect or vary the boundaries fixed by the deeds in evidence.

*430Answer: Affirmed.8

3. That any mistaken recognition of the Rockwell fence by the plaintiff as his south line, cannot affect the boundaries of the deeds given in evidence.

Answer: Affirmed.3

The defendant asks the court to charge the jury :

1. That if the jury believe from the evidence that in the partition of the land referred to by plaintiff as purchased by D. R. Morse and J. B. Russell of Carrie W. Dennison, the common source of title, between said Morse and Russell, the land conveyed to Morse and now owned by plaintiff was located with the Rockwell fence for a south boundary thereof and extending north from said fence 58¿ feet, with a notch in the fence indicating the north boundary thereof, this plaintiff is bound by such locating, and cannot now hold other or more land than was so set off to said D. R. Morse, his predecessor in title.

Answer: The defendant’s first point is affirmed, with this qualification; that if Morse and Russell, in making the partition and locating the division line between them, by mutual mistake took the Rockwell fence as the true south boundary of the land bought by them, when in fact the true south line of their land was not the Rockwell fence, but was somewhat in excess of three feet further north, then such mistake in locating the division line was not binding upon the parties, but is subject to correction in accordance with the actual, true location of the southern boundary of the land bought of Carrie Dennison.4

2. That if the jury believe, from the evidence, that at or immediately before the purchase by the plaintiff, H. E. Davis, of a part of lots 321 and 322 of David Morse, claimed to include the land in dispute, D. R. Morse as agent of said David Morse, in presence of said Davis, measured from the Rockwell fence 58¿ feet north along Poplar street, as the width of the land to be sold, and showed said Davis the notch in the fence as the mark of the north boundary line of the same, said Davis is restricted to the land so marked off and located on the ground, regardless of .the courses, distances and calls mentioned in his deed, and cannot recover in this case, unless the land in dispute is included within said boundaries, i. e., the *431Rockwell fence on the south and the notch in the Poplar street fence on the north.

Answer : This point is answered as the preceding one ; affirmed, with this qualification, that if Morse and Russell, in making the partition and locating the division line between them, by mutual mistake took the Rockwell fence as the true south boundary of the land bought by them, when ,in fact the true south line of their land was not the Rockwell fence, but was somewhat in excess of three feet further north, then such mistake in locating the division line was not binding upon the parties, but subject to correction in accordance with the actual, true location of the southern boundary of the land bought of Carrie Dennison.5

4. That if the jury believe from the evidence that the northwest corner of Rockwell’s land was located upon the ground and the location thereof marked upon the ground by a fence, which was recognized by the landowners on both sides of it as the division line between Rockwell and his predecessors in title on the south, and D. R. Morse and J. B. Russell and their predecessors in title on the north, for over twenty-one years previous to the purchase of the land in controversy by said Morse and Russell, it constitutes the division between those properties, without reference to the calls and distances mentioned in said deeds. This for the purpose of showing the location of the northwest corner of Rockwell’s land mentioned in the deeds offered in evidence by the plaintiff.

Answer: This point is answered in the negative.6

The verdict will be a general verdict, for the plaintiff or for the defendant.

—The jury returned a verdict for the plaintiff. A rule for a new trial having been discharged and judgment entered, the defendant took this appeal, assigning for error:

1-3. The answers to the plaintiff’s points.1 to 3

4-6. The answers to the defendant’s points.4 to 6

7. The portion of the charge embraced in [ ] 17

*Mr. Perry P. Clark*(with him *Mr. Samuel T. NeilV),ior*the appellant.

Counsel cited: Lodge v. Barnett, 46 Pa. 485; Craft v. Yeauey, 66 Pa. 211; Blasdell v. Bisseli, 6 Pa. 259; Northumb. *432Coal Co. v. Clement, 95 Pa. 137; Stroud v. Prager, 130 Pa. 401; Mackentile v. Savoy, 17 S. & R. 107; Burkholder v. Markley, 98 Pa. 40; Bartle v. Vosbury, 3 Gr. 277; Payne v. Howard, 107 Pa. 579; Morse v. Rollins, 121 Pa. 537; Willis v. Swartz, 28 Pa. 418; Younkin v. Cowan, 34 Pa. 200; Hetherington v. Clark, 30 Pa. 396; Brown v. McKinney, 9 W. 566; Moul v. Hartman, 104 Pa. 44; Stephens v. Leach, 19 Pa. 262; Bennett v. Morrison, 120 Pa. 390; Moreland v. Moreland, 121 Pa. 573; Mason v. Ammon, 117 Pa. 127.

*Mr. W. W. Wilbur*(with him *Mr. William*Sehnur), for the ..appellee.

Counsel cited: 4 Am. L. C. on R. P., 358, 367; Stuven v. Kalchreuter, 8 W. N. 44; Koch v. Dunkel, 90 Pa. 264; Breneiser v. Davis, 134 Pa. 1.

Per Curiam:

Judgment affirmed.