#### Chester Owen *versus*Wyllis Bartholomew.

In the case of a grant of land by the Commonwealth, in which the land is described by courses and distances, without reference to monuments, evidence of long continued occupation under it is admissible to prove the boundaries, and though the given distances are exceeded, they may be controlled by the boundaries so proved.

Grants of contiguous land by the Commonwealth and occupation under them, and subsequent conveyances by the grantees referring to monuments not. existing at the time of the original grants, are admissible in evidence for the same purpose.

A usual practice of surveyors of land laid out by the proprietors of a town, to overrun the exact measures, is admissible to show that the boundaries of an ancient grant by the Commonwealth in an adjacent town, and described by courses and distances, exceeded the distances given. •

For the same purpose, evidence is admissible that at the time of an ancient grant by the Commonwealth, it was the uniform practice, in surveying such grants, to give large measure*

*530Where a tenant of land presented a petition to the legislature, admitting that the land belonged to the Commonwealth and praying that it might be granted to him, and thereupon the land, by authority from the legislature, was sold to another person, it was *held,*that the tenant was not estopped from setting up his title, but that his admission in his petition and his declarations, unexplained, that the land did not belong to him, were strong evidence against him, and the burden of proof hy on him to show that they were founded in innocent mistake.

If two writs of entry for the same land are brought successively by different demand-ants, and the tenant pleads *nul disseisin*in the first action, he is not thereby prevented from pleading a disclaimer in the second.

This was a writ of entry, in which the demandant declared on his own seisin within thirty years and a disseisin by the tenant. The tenant pleaded a disclaimer as to part of the land, ai.u *non disseisioit*as to the residue. The demandant replied that the tenant did claim, &c. and did disseise, &c. The jury found a verdict for the tenant on both issues.

The demandant claimed one undivided third part of a tract of land conveyed by Jonathan Allen, as agent of the Commonwealth, on September 16th, 1824, to John Ward, Eli Ensign and the demandant.

The tenant claimed under a grant of the Commonwealth by their committee, Joseph Dwight and others, of May 17th, 1755.

The Commonwealth owned all the land between Williams’s grant on the east and the line of Mount Washington on the west, on May 17th, 1755, when they granted to Austin and Shears, from whom the tenant derived his title, “one hundred and fifty-four acres of said land lying west of Sheffield, and is the grantees’ improvement, bounded easterly on Williams’s grant and the northeast corner of Drake’s land, thence running west nine degrees north on land of said Drake 285 poles, thence running north nine degrees east 87 poles, thence east nine degrees south 280 poles, until it comes to 20 rods northerly of said Williams’s grant, then on the west side of said grant to the bounds first mentioned.”

The demandant claimed a parcel of land marked on a plan, on the ground that enough was left to the eastward of it and west of Williams’s grant, to satisfy the conveyance to Austrn and Shears, according to an exact measurement of the length of the lines given in that grant. The tenant claimed to a line about 30 rods farther to the west than the demandant located *531the grant, and he disclaimed the land between that line and the line of Mount Washington.

The committee (Dwight and others) on the same 17th of May, made grants to Drake and to Joseph and John Owen, southward of the grant to Austin and Shears ; and on November 27th, 1771, the Commonwealth granted to Petite a tract of land to the northward of the grant to Austin and Shears, which came to within a few rods of the Lanesborough Spring, a known boundary now existing.

In 1823 the tenant petitioned the legislature to grant to him the land described in his petition, between the line of Mount Washington on the west and the land, granted to Austin and Shears on the east. The legislature authorized Jonathan Allen to sell that land, and the demandant bought one third of it. The demandant contended that the land purchased by him went 30 rods to the eastward of the line to which the tenant claimed. So that the question for the jury to settle was, where were the westerly bounds of the land granted to Austin and Shears. The west line of the grant to Williams, as laid down in the plan, was considered at the trial as substantially correct. There was evidence tending to prove, that those who claimed under Austin and Shears had occupied and claimed under the original grant, the premises demanded, and that a walnut tree stood at the southwest corner of the premises demanded, which was mentioned in the deed of Fellows to Benton of June 7th, 1777. The tenant offered evidence tending to show that those who claimed under the grants of the Commonwealth to Drake and Joseph and John Owen, had occupied and claimed, under their grants of the same day and of the same direction of the compass (north nine degrees east) up to the same exhibited westerly line to which the tenant claimed. The tenant offered a deed from Nathaniel to William Owen, dated in 1788, referring to a hemlock tree, which it was said (and there was parol evidence to prove) stood on the line produced, to which the tenants’ claim extended. The demandant objected to all this testimony as irrelevant, contending that the monuments referred to were erected long after the grant to Austin and Shears, were *res inter alios*acta, and had no tendency to prove the westerly line of the grant of the Commonwealth to them.

*532
      *Putnam*J.

admitted the evidence as having a legal and ProPer tendency to fix the westerly bound of the grant to Austin and Shears, and the other adjoining grants of the same day, and he instructed the jury that they might take it into consideration, in deciding whether the claimants under the grant to Austin and Shears entered and claimed and occupied it as part of that grant; stating further, that unless the jury believed it did fall within the bounds, according to the intent of the parties to that grant, the mere possession should not operate against the claim of the demandant under the subsequent deed of the Commonwealth. The jury were also instructed, that as it was proved that the Commonwealth were entitled to all the land between the grant to Williams and the line of Mount Washington, excepting that which had been granted to Austin and Shears, it was incumbent upon the tenant to satisfy them that that grant extended so far to the westward as to include his claim, and that the demandánt was entitled to recover one third of all that the tenant did not prove was conveyed to Austin and Shears.

The tenant introduced the evidence of a survey of the town of New Marlborough, to prove that the land laid out by the proprietors of that town, generally overran the length of the lines given. To this evidence the demandant objected, as it did not relate to grants from the Commonwealth , but the judge overruled the objection.

The tenant also produced evidence to prove that the ancient grants in Mount Washington uniformly overran the exact measures. The demandant objected to this evidence, contending that in the absence of monuments the lines should be ascertained by exact measurement. But the jury were instructed, that the over-measurements of the ancient grants were to be considered by them in settling this boundary, and that they were now to locate that grant to Austin and Shears as they believed upon the evidence it would have been located in 1755, when it was made. It was proved by skilful surveyors, that the land included in that grant was rough and mountainous. If the line were measured up hill from Williams’s grant to Mount Washington, it would go about four rods to the westward of the line to which the demandant claimed; if measured down hill, i1 *533would make four rods less: so that exact mathematical cer tainty was not to be obtained. The jury were then to take into consideration the uniform usage of giving large measure at that time, and we" e to say, upon the whole matter, how far to the westward the grant to Austin and Shears should extend. The walnut tree and the hemlock tree, and the occupation of the several grantees of the Commonwealth, in a continuous line from north to south, under the grants of 1755, were to be taken into consideration in ascertaining the place of the dividing line between the lands then granted and the lands since granted to the demandant and his associates.

It was proved that the petition of the tenant to the legislature, and also his confessions in the country, conceded that some part of the land in controversy did belong to the Commonwealth ; and the demandant contended, that the tenant should be absolutely estopped by his petition to the legislature in re gard to so much. But the jury were instructed, that his petition and his declarations were to be considered as evidence, and if unexplained, strong evidence, to disprove his claim to the line in question, but were not conclusive upon him, and that he was, by the rules of law, permitted to explain any inaccuracy or mistakes in his petition and declarations.

The demandant requested the judge to instruct the jury, that in locating land described in a deed, when the length of line is given by stating the number of rods, without mentioning any monument, the number of rods must be the length of the line; that the jury must limit the tenant’s claim to the number of rods west of the grant to Williams, which are stated in the grant to Austin and Shears ; that no monuments erected at any time subsequent to the grant to Shears and Austin, by them or grantees claiming under them, could extend the line ; that the Commonwealth is not presumed to be conusant of these acts or to have ratified them ; and that this evidence has no tendency to prove the tenant’s title as against the Commonwealth. The judge instructed the jury as before stated.

As to the issue upon the plea of disclaimer, the following facts were agreed. The demandant, with two other persons as his tenants in common, heretofore brought an action against the tenant for the same land. The tenant pleaded *non dissei*
      *534
      *sivit,*and the case was tried upon that issue. Exception was taken, that tenants in common could not join in such an action, and the present demandant’s name was struck out and the cause proceeded to trial upon the plea to the whole land. The demandants in that action were the grantees in the deed under which the demandant now claims.

The demandant moved for a new trial.

*C. A. Dewey,*for the demandant.

The grant to Austin and Shears is definite as to the length of the lines and the points of the compass, and as no monuments are referred to, the tenant cannot extend his claim beyond the description in that deed. Contemporaneous occupation will not control definite courses and distances. Here however there was no such occupation. The earliest reference to a monument is more than twenty years after the grant was made. But the tenant could not rightfully introduce the deeds of successive trespassers upon the land of the Commonwealth. If such deeds, and a possession for thirty years after the grant, are admissible evidence to show the construction of a grant of the Commonwealth, the principle that the Commonwealth cannot be disseised is nugatory. *Jackson*v. *Bowen,*1 Caines’s R. 358 ; *Jackson*v *Reeves,*3 Caines’s R. 293.

The demandant purchased under an authority given by the legislature, founded on the representation in the tenant’s own petition. It is not necessary to decide whether this petition is a technical estoppel; but it partakes of the nature of an estoppel so far as to bar the tenant from setting up a title against the demandant. *Wallis*v. *Truesdell,*6 Pick. 455 ; *Chapman*v. *Searle,*3 Pick. 38 ; *Stonard*v. *Dunkin,*2 Campb. 344 ; 2 Pow. Mortg. (Rand’s ed.) 437 ; *Lee*v. *Porter,*5 Johns. Ch. R. 272 ; *Savage*v. *Foster,*9 Mod. 35 ; *Niven*v. *Belknap,*2 Johns. R. 573.

The question upon the plea of disclaimer has reference to costs. The tenant, by pleading the general issue in the first action brought against him, for the recovery of the whole land in controversy, admitted that he was the tenant. *Kelleran*v. *Brown, 4*Mass. R. 443.

*Dwight, Barnard*and *Hall,*for the tenant,

to the point, that the evidence objected to had been properly admitted, cited *5351 Phil. Ev. (N York ed.) 419 ; Com. Dig. *Parols, A*1; *Livingston*v. *Ten Broeck,*16 Johns. R. 23 ; *Jackson*v *iFielder,*3 Johns. R. 11 ; *Jackson*v. *Smith,*9 Johns. R. 100 ; *Jackson*v. *AT Call,*10 Johns. R. 377 ; *Doe*v. *Burt,*1 T. R. 701 ; *Rex*v. *Bellringer,*4 T. R. 821 ; 3 Stark. Ev. 1026, notes *s*and 1 ; *Sargent*v. *Towne,*10 Mass. R. 303 ; *Weld*v. *Hornby,*7 East, 199 ; *Baker*v. *Sanderson,*3 Pick. 354.

The petition cannot operate by way of estoppel, there havng been no fraud or concealment on the part of the tenant. The question was put to the jury favorably for the demandant, as the burden was cast upon the tenant to prove that he acted under a mistake. *.Barnard*v. *Pope,*14 Mass. R. 434 ; *Jackson*v. *Cary,*16 Johns. R. 302.

*Per Curiam.*

It is manifest this case presents a question of boundary and not of title. There is no ground for claiming a title by adverse possession, for that cannot devest the title of the Commonwealth,1 and evidence of the holding, if admissible at all, must be received as showing the construction of the grant.

The question is, whether the grant to Austin and Shears included the whole or a part of the land in controversy, and if a part, what part. This was left to the jury, and the demandant moves to set aside the verdict, because evidence, which was objected to at the trial, was improperly admitted.

The Court do not mean to intimate, that where the grant of the Commonwealth is definite in its terms and application, evidence *aliunde*is admissible to control it ; but where it is uncertain what land is intended, extrinsic evidence must be admitted. We think this a case proper for the admission of such evidence. The tenant claims under an ancient grant. The deed refers to no precise monuments. It refers to the grant to Williams, the west line of which was uncertain at that time, and to the grantees’ improvements, and to the north line of the grant to Drake. The situation and extent of the land could not be ascertained from this description, except by resorting to other evidence than the grant itself. We think all the deeds were rightly admitted. Those to Drake and Joseph and John Owen, made on the same day with the grant to Austin and Shears, were of the same *536length of line, east and west, and any evidence which wrould show the west line of those grants would prove that of the land in question. The Court are all of opinion, that where it is proper to go into evidence aliunde, it is proper to consider contiguous grants. Evidence of a location at the time would show the land intended to pass, and in the case of *Makepeace*v. Bancroft, 12 Mass. R. 469, monuments erected soon after the grant, were admitted to be proved for the purpose of showing the extent and limits of the grant.1 Whether the monuments were erected simultaneously or subsequently, would affect the weight, but not the nature of the evidence. The deed of Fellows to Benton, in 1777, was competent evidence, as it tended to settle the west line of the land in controversy. So the deed from Nathaniel to William Owen, of 1788, though it would have less weight, being later, is yet of some force, as referring to a monument previously established.

Evidence also was introduced, to show that in adjacent townships there was a tendency to overrun in the location of grants. We think this evidence was rightly admitted, for where lines are referred to, mathematical lines are not intended, but such as are used by people conversant with the business of surveying. The evidence of this description had reference to the town where this land is situated, or to a neighbouring town, and where probably the same surveyors were employed.

The next question is, whether the tenant is not estopped from setting up his title to this land, because in his petition to the legislature he considered that this land belonged to the Commonwealth. The instruction on this point was correct. The petition was not a technical estoppel, as it was not a record nor under seal. Estoppels are not to be favored. If the petition were fraudulent, the tenant could not set up a title against it; but the whole effect of it excludes any implication of fraud. He admitted that his boundary was doubtful, and he wanted a confirmation. A man may well say, I suppose I own land, but sooner than have a controversy with the government, I will *537pay a sum of money to procure a confirmation of my title. The petition was at most but a strong admission of the tenant against his own title. To allow it to operate as an estoppel, would be making title to land depend upon parol evidence. A confession of a party as to boundary is strong evidence against him, and so it was put to the jury in the present case, and it was a question proper for their consideration.

The only remaining point regards the plea of disclaimer. Though technically, by a plea of *nul disseisin*the tenant makes claim to the land, yet it is only in regard to the action in which it is pleaded, and as against the party then demanding.

It would be carrying the technical rule too far, to give it operation in another case. When a man comes with a better title than the former demandant, the tenant may well plead a disclaimer as to him, though he had previously set up his right to the land, against the claim of another.

*Judgment on the verdict.*

See *Commonwealth*v. *Miltenberger, 7*Watts, 450.

See *Lerned*v. *Morrill, 2*N, Hamp R. 197; *Kennebec Purchase*v. Tiffany, 1 Greenleaf, 219; *Waterman*v. Johnson, 13 Pick. 267 ; *Rockwell*v. *Adams,*6 Wendell, 469; *Lush*v. Druse, 4 Wendell, 313; *Cults*v. King, 5 Greenleaf, 482.