An agreement by parol between two proprietors of adjoining lands
to employ a surveyor to run the dividing line between them, and
that it should be thus ascertained and settled, which was executed,
and the line accordingly run and marked on a plat by the surveyor
in their presence as the boundary
held to be conclusive in
an action of ejectment after a correspondent possession of twenty
years by the parties, and those claiming under them
respectively.
Such an agreement is not within the statute of frauds as being a
contract for the sale of lands or any interest in or concerning
them.
Page 17 U. S. 514
DUVALL, Justice, delivered the opinion of the Court.
An action of ejectment was brought by Andrew Boyd against the
defendants in the Circuit Court for the District of Kentucky on 25
November, 1814, for 2000 acres of land in Fayette County, on the
waters of Elkhorn Creek. The patent bears date on 3 December, 1789,
and was granted to Andrew Boyd, pursuant to a survey made, 14 July,
1774, on a warrant issued under the royal proclamation of 1763.
This tract of land is contained within the courses and distances
following: beginning at a buckeye and ash, corner to John Carter's
land, and in a line of William Phillips' land, and with the same
southwest, 374 poles, crossing a small branch, to a hoopwood and
sugar tree, and leaving said line, southeast, 860 poles, crossing a
branch to an elm and buckeye, northeast, 374 poles, crossing a
branch to a sugar tree and buckeye, thence northwest 860 poles to
the beginning.
The defendants claimed title under a patent granted to Elijah
Craig, on 7 November, 1779, for 2,000 acres, on a warrant to John
Carter, heir-at-law of Thomas Carter, in consideration of military
services. The warrant was assigned to Craig. The courses and
distances are the following: beginning at three large hoopwoods
growing from one root, corner to William Phillips' land, and with a
line thereof, southwest 374 poles, crossing two branches to a
buckeye and ash on the bank, southeast, 860 poles, crossing a small
creek to a sugar tree and buckeye, northeast, 374 poles, crossing
three branches to an ash, hickory,
Page 17 U. S. 515
mulberry and hoopwood, northwest, 860 poles to the first
station.
These two tracts are adjacent to, and bind on each other. It is
obvious that they were intended to present rectangular figures, and
to contain equal quantities, but by satisfying the calls, the
figures are irregular, and do not contain equal quantities.
The plaintiff in the court below locates his pretensions, on the
plat returned in the cause, beginning at A, then to K, to L, to D,
and to the beginning. And he locates Craig's patent, beginning at
A, then to B, to C, to D, and to the beginning. The defendants
locate it, beginning at A, then to B, to C, to E, and to the
beginning. The land contained in the triangle A, E, D, is the land
in dispute.
The defendants, to support their location, offered evidence to
prove, that the dividing line between Boyd and Craig being
unascertained, the parties, by agreement, had it surveyed, for the
purpose of establishing and settling the line between them; that in
the year 1793, it was run in their presence from A to E, as
distinguished on the plat, and that it was mutually agreed to
establish the corner at E, where a boundary was marked, by consent,
E C and A B, and that the line from A to E should be the dividing
line between them, and that possession had been since held
accordingly. They also offered in evidence, a deed from Boyd and
wife to William Hanback, bearing date 24 December, 1793, for 100
acres, part of the land granted to Boyd, beginning at the corner at
E, before mentioned, and bounding on the line A E, regarding it as
the dividing
Page 17 U. S. 516
line between Boyd and Craig; also a deed from Elijah Craig to
John Whitesides, dated 12 May, 1794, for 72 acres, part of Craig's
patent, bounding also on the line A E as the dividing line between
Boyd and Craig: and that all the other defendants, as purchasers,
under Craig, held to the said line A E.
The defendant's counsel then moved the court to instruct the
jury, that if they found, from the evidence, that, owing to the
uncertainty of the line of said Boyd and Carter's military surveys,
the said Boyd and Elijah Craig, by mutual consent, surveyed and
located their respective patents, by making the line from A to E,
and marking the corner at E, with the intent (at the time),
positively expressed, to settle and ascertain the true boundary and
dividing line between the tracts respectively claimed by them,
under their patents, and that the said line has been acquiesced in
by the said parties, and possession held and taken accordingly, for
more than twenty years before the commencement of this action, that
they ought to find for the defendants, which instruction the court
gave, and to this opinion of the court, the plaintiff, by his
counsel, excepted, and the record of the proceedings was removed,
by writ of error, to this Court, for their decision.
At the trial in the court below, several other questions were
propounded, and decided by the court, and to which exceptions were
taken, which it is not material to notice here, because the
decision of this Court on the question stated will decide the
controversy between the parties.
Page 17 U. S. 517
It appears that in the year 1793, more than twenty years before
the commencement of this action of ejectment, Boyd and Craig
employed a surveyor to run the dividing line between them, and they
mutually agreed, that it should be thus ascertained and settled. It
was accordingly run as described on the plat, from A to E, and the
corner at E was marked in their presence as the boundary between
them. That possession has been held by each, and those claiming
under them, respectively, from that time to the present, and that
each has sold parcels of land, bounding them on the line A E, thus
agreed on, regarding it as the established line between them. Hence
the question arises whether the agreement made in 1793, although by
parol, accompanied by corresponding possession for more than twenty
years, is or is not conclusive against the plaintiff's right of
recovery in this action?
This Court cannot consider the agreement of the parties,
although by parol, to settle the dividing line between them by a
surveyor, mutually employed, as affected by the statute of frauds,
as is contended by the counsel for the plaintiff. It is not a
contract for the sale or conveyance of lands; it has no ingredient
of such a contract. There is no quid
pro quo, and the
court do not consider it as a conveyance of title from one person
to another. It was merely a submission of a matter of fact, to
ascertain where the line would run, on actual survey, beginning at
a place admitted and acknowledged by the parties to be a boundary,
where the line must begin. The possession subsequently held, and
the acts of the parties,
Page 17 U. S. 518
evidenced by their respective sales of parcels of the land held
by each, under his patent, bounding on the agreed line, amount to a
full and complete recognition of it, and in the opinion of this
Court precludes the plaintiff after such a lapse of time from
denying it to be the dividing line between him and the defendants,
and neither ought now to be permitted to disturb the possession of
the other, under a pretense that the line was not correctly
run.
Judgment affirmed.