
    Cyrus Broadwell and Amrose Broadwell v. James M. Phillips.
    1. It is a well settled proposition, that subsequently acquired lands pass under a grant, with warranty.
    2. If parties have taken possession of land and occupied for a series of years under a deed containing an erroneous description, the mistake, as against the grantor and his representatives, will be corrected, where the evidence clearly shows such mistake.
    Error reserved in the District Court of Clermont county.
    This is a petition in error, reserved in the District Court of Clermont county. An action of ejectment was brought in the common pleas, by Broadwell against Phillips, to recover a tract of land and judgment rendered for defendant.
    In 1804, August 29th, Jacob Broadwell, ancestor of plaintiffs, made a deed to John Day (through whom defendants claim), of the land in question, and as to which they ask that their title be quieted. It is a mistake in this deed which is the cause- of all the difficulty between the parties. The description in that deed is as follows : All that tract and parcel of land lying and being in the counties of Hamilton and Clermont, and state aforesaid, and bounded as follows : Beginning at two beech and two ash trees, north-east corner to Timothy Day’s survey; thence south sixty-five degrees east eighty poles to ash and too sugar trees; thence north forty degrees east two hundred poles to three sugar trees in a small run; thence north sixty-five-west eighty poles to ash, elm, and beech trees; thence south forty-degrees west two hundred poles to the beginning, containing one hundred acres, be the same more or less, together with all improvements.
    When this deed was made from Jacob Broadwell to John Day, they did not know the exact courses of the- east and west lines; the deed was therefore written “ north forty-degrees east” and “south forty-degrees west,” leaving blanks between the words “forty” and “degrees” to be filled in with the courses as they should be subsequently ascertained. These blanks were afterward filled with the word “ nine ” in each case, so as to make the east and west lines run “north forty-nine degrees east” and “south forty-nine degrees west.” This is shown by the following “ addenda,” as it is called, which was written upon the same paper as the deed itself, signed by Jacob Broadwell and John Day, and acknowledged by Jacob Broadwell, 15th May, 1827.
    “ It is hereby agreed upon by the subscribers, the within grantor and grantee, that at the time of signing and sealing of the within deed, that blank in the eighth and ninth lines between the words “forty” and '“degrees,” ought to be filled with the word “nine” (in both blanks), so as to read “forty-nine degrees;” that the odd degrees at the time of executing the within instrument were not ascertained before the same was recorded; as witness our hands and seals, this 15th day of May, in the year 1827.
    “Attest: “Jacob Broadwell,
    “ Clayton Webb, “John Day.”
    “ Nathan Hatfield.”
    
      
      “State of Ohio, Hamilton county, ss.
    
    “ Before me, Clayton Webb, a justice of tbe peace within and for said-- personally came Jacob Broadwell, and agreed to the foregoing alteration to the foregoing indenture to be his voluntary act and deed.
    “ Given under my hand and seal, this 22d day of January, a. d. 1829. Clayton Webb, J. P. [seal.] ”
    Thus far there is no dispute, and the east and west lines-are there fixed as being parallel and N. 45° E. and S. 45° W..
    There would be no trouble in this deed, and consequently none in the case, had it not been for the mistake made in the starting point. This mistake being shown and corrected, every difficulty vanishes. In order to demonstrate this mistake, it is necessary to examine the following papers >■
    1. The map:
    
      
    
    
      2. The patent for the Jacob Pear tract, issued to Joseph Broadwell, assignee of Jacob Pear, 27th May, 1854, the •description of which is as follows :
    “ Containing two hundred acres, situate on the waters ■of the Little Miami river, between the Little Miami rivers, northwest of the Ohio river, as by survey No. 706, bearing •date twenty-seyenth day of June, 1794, founded on military warrant No. 2,048, issued in favor of the said Jacob Pear .(the whole thereof being for two hundred acres), and. bounded and described as follows, to wit: Beginning at ;an ash, elm and beech, north corner to Robert Brown’s •survey, No. 706, running thence north sixty-five degrees west one hundred and sixty poles to a buckeye, sugar tree and hoop wood, east corner to John Brown’s survey No. 706; thence with Brown’s line south twenty-five degrees west two hundred poles to three beeches, and north corner to John McDowell’s survey, No. 706; thence with McDowell’s line, south sixty-five degrees east one hundred ■and sixty poles to two beeches and two ashes; thence north twfenty-five degrees east two hundred poles to the 'beginning.”
    8. The patent for the Robert Brown survey, issued to Jacob Broadwell, assignee of Robert Brown, 25th February, 1804, the description of which is as follows :
    “ Survey of one hundred acres of land on military warrant, No. 2,296, in-favor of the said Robert Brown (for a like quantity), on the waters of the Miami, beginning at three sugar trees, east corner to James Peyton’s survey, No. 706; thence north twenty-five degrees east two hundred poles, •crossing a branch at six poles to three sugar trees, near a branch; thence north sixty-five degrees west eighty poles to an ash, elm and beech, corner to Jacob Fear’s survey, No. 706; thence with his liue south twenty-five degrees west two hundred poles to a beech and two ashes, east corner to John McDowell’s survey, No. 706, and corner to Peyton; thence with his line south sixty-five degrees east ■eighty poles, crossing a branch at sixty poles, to the beginning, with the appurtenances. To have and to hold, the said tract of land, with the appurtenances, .unto the said Jacob Broadwell, and his heirs and assigns forever.”
    Laying the two descriptions down on the map, it will be seen that the two tracts are side by side — Robert Brown’s one hundred acres in the east, and Jacob Fear’s two hundred acres in the west, and that the west line of Robert Brown coincides with the east line of Jacob Fear, and that the north and south lines of both tracts are prolongations of one another.
    It will be noticed that the deed of Jacob Broadwell to John Day was in 1804, and conveyed part of the Fear tract; but the patent of the Fear tract to Jacob Broadwell was not issued till 1854. The Day deed, therefore, so far .as it conveyed a portion of the Fear tract, conveyed land to which Broadwell had no legal title. The evidence, moreover, shows that Jacob Broadwell was in possession of the Fear tract, claiming title, as early as 1804, and that he lived on it in 1802. In 1852, Cyrus and Ambrose Broadwell filed a bill against the unknown heirs of Jacob Fear, to quiet the title of their ancestor Jacob Broadwell, in and to the Fear tract. In that bill they allege that in 1804, 1805, and 1806, their ancestor, Jacob Broadwell, bought the Fear tract, at tax sale; that in 1807 he bought of Jacob Fear the warrant for this tract, and in that year went into possession of the same, he and his assignees and legatees remaining in such possession ever since.
    There is no doubt, therefore, that in 1804, or thereabout, when Jacob Broadwell made the Day deed, although he had not the legal title to part of the premises conveyed, he did have an equity and possession.
    
      J. A. Penn and Griffith & Griffith, for plaintiff in error.
    
      Geo. L. Swing, T. M. Lewis and A. T. Cowen, for defendant in error:
    Equity will interfere to correct mistakes, not only between the original parties, but also those claiming under them in privity, as heirs, legatees, devisees, assignees, or purchasers from them, with notice of the facts. Simmons v. 
      North, 8 S. & M. 67; Whitehead v. Bruin, 18 Ala. 682 Stone v. Hale, 17. Ala. 557; Davis v. Rogers, 83 Maine, 222; Wall v. Arrington, 13 Geo. 88. See also Woolan v. Hearn, 2 White & Tudor’s L. O. in Equity, 651.
    The deed in question, when so corrected, although at its date Broadwell had not even an equitable title to the land in controversy, will, by its covenants of warranty, estopthe plaintiffs from recovering on the legal title granted by the government to them as the owners of his after-acquired equitable title. Bond’s Lessee v. Swearingen, 1 Ohio, 395 ;. Allen’s Lessee v. Parish. 3 Ohio, 107; Boyáis Lessee v. Long-worth, 11 Ohio, 235; Buckingham’s Lessee v. Hanna, 2 Ohio St. 551; Philly v. Sanders, 11 Ohio St. 490; Doe d. Potts-v. Dowdall (3 Iloust. Bel. - 369) 11 Amer. R. 757; Douglass v. Scott, 5 Ohio, 195; 1 Greenlf. Ev., sec. 24; Lessee of Barton v. Morris’ Heirs, 15 Ohio, 408; 3 Washburn, 110, 3d ed. (480,1st ed.; 488, 2d ed.)
   Wri&ht, J.

No statement of the case can be made, or opinion given, which will convey to a mere listener a dear-idea of the matters in dispute. They involve courses and distances, monuments, maps, and deeds; a' careful, patient-examination of which is indispensable to a correct understanding of the controversy. But when such examination is made, confusion is dispelled and the point in doubt be--comes clear. The mistake, already spoken of, is as stated in defendant’s brief, in the beginning corner. Jacob Broad-Well intended to convey to John Bay one hundred acres,, in a tract the opposite sides of which were parallel. The-two short sides, eighty poles, ran S. 65° E. and N. 65° W. The two long sides, three hundred poles, ran N. 49° E. and S. 49° W. On the map, which is from a survey of modern date, the courses and distances vary a little from the Bay deed. The courses are 64° instead of 65°, in the one case, and 49° 08' and 50-|° instead of 49°. The distances of the short sides are the same in map and deed, eighty poles. The-distances of the long sides are two hundred poles in the-deed and a few more poles in the map. These discrepancies,. however, are not unusual and are immaterial. In the Day ■deed, however, Jacob Broadwell made the mistake of beginning at the southeast corner, instead of the northwest corner of the land he intended to sell. He began at A, •on the map, when he should have begun at B.

The mistake is shown by this fact: if we begin at A, the southeast corner of the land conveyed, as Broadwell •did in the Day deed, and run the courses and distances of' that deed, we get a tract of land, just about one-half of which Jacob Broadwell never owned. Whereas, by beginning at B, the southeast corner of the lanci conveyed, and running the courses and distances of the Day deed, we get a tract of land, all of which Jacob Broadwell did own, being made up of the parts, one from the Jacob Fear tract, the other from the Robert Brown tract, both of which belonged to Broadwell. The true description is verified by .another fact. In the deed from Jacob Broadwell to Day, •the second course and distance calls for “three sugar.trees 'in a small run,” thus : “thence north forty-nine degrees east two hundred poles to three sugar trees in a small run.” Now this call for these same trees as a monument, is found in the •first course and distance of the Robert Brown patent of 1804, thus: “thence north twenty-five degrees east two hundred poles, crossing a branch at six poles to three sugar trees near a branch.” These “ three sugar trees near a branch,” •or “in a small run,” mark the northeast corner of the .Robert Brown patent and also the northeast corner of the Day tract. The Robert Brown patent and the Day deed were made in the same year, 1804. At that time, therefore, the three sugar trees stood there to fix the cornel’s of the Brown patent and the Day deed. This point, therefore, is fixed beyond dispute, and is the point E on the map.

Again, in the Day deed the third course and distance is "thus : “ thence north sixty-five-west eighty poles to ash, elm, and beech trees.” In the Brown patent of the same year, the second course and distance is thus: “ thence north sixty-five degrees west eighty poles to an ash, dm, and beech corner to Jacob Fear’s survey.” Here we have this monument, “ ash, elm, and beech,” in both documents. They fix the-northwest corner of the Robert Brown patent and the northwest corner of the Bay deed, at one and the same-point, marked by the same trees. This point is marked in the same way as the corner of Brown and Fear, in plaintiff’s petition and also in the bill filed by them to secure the Fear title. There is no dispute as to what the Robert Brown patent is, or what it covers, and when we get the-corners of that patent and find the corners of the Day tract to be identical with them, we know where Day’s corners are. We therefore have two corners of Brown and Day fixed as identical. We know Brown’s north line, for there-Is no dispute about it, and the north line of Day we find to be identical with it. Again, the monument of “ ash, elm, and beech,” called for in the Brown patent and the Day deed, which fixes the northwest corner of both Brown and Day, also fixes a corner of the Fear tract. In the Fear patent to Broadwell, the beginning point is thus : “ Beginning at an ash, elm, and beech, north corner to Robert Brown’s survey.” The “ ash, elm, and beech,” therefore, fix a corner of Fear and a corner of Brown. The suveyor says this “ ash, elm, and beech ” has always been the established, undisputed; recognized corner of Fear and Brown. There is no dispute about these surveys or these corners.. The monument which fixes them, namely, “ ash, elm, and beech,” is the same monument which fixes a corner for Day. We have, therefore, a second corner of Day fixed by a monument. That identical monument fixes for Fear and Brown a corner which is known. Day’s corner therefore becomes known. This joint corner to Fear, Brown, and-Day is C in the map. We have now fixed beyond dispute the points E and C of the Day deed. E is the northeast corner of the Brown patent and Day tract. C is the northwest corner of the Brown patent and Day tract, also corner to Fear. We have the line between E and C identical. in the Brown patent and Day deed. It is eighty poles in length and runs north sixty-five west. Take this line as a base. We know from Day’s deed that his is a tract with parallel sides, eighty rods one way and two hundred the other, the long sides being both S. 49° ~W. Now if from the base line assumed, we run two sides, S. 49 W. we have the proper Day tract.

If this statement is examined, in connection with the map and deed and patents it will be found to solve the difficulty. "We would not have gone into the matter with such tedious minuteness, but that counsel argue with such earnestness to a different result.

This conclusion, thus reached upon the documents themselves, is fortified by all the other evidence in the case.

Eor instance, in 1832, Jacob Broadwell conveyed a tract of land to Cross. If we follow the description plaintiff attempts to give the Day deed, it would cover the very land conveyed to Cross, thus making Broadwell convey to Cross in 1832, what he had already conveyed to Day in 1804; furthermore Cross’ deed calls for John Day’s line and runs with it S. 49|° W. ninety-eight poles, to a large ash and stone corner, to John Day. This fixes John Day’s last line in 1832, and if therewere nothing else in the case, Upon this line we could construct the Day tract from his deed.

Again, this very important testimony is found in the record. Elijah Day testifies that at one time, he, with Jacob Broadwell and Lewis Broadwell, his son, who was a surveyor, went around the Day tract to fix its boundaries. He says that several others were -present. He was requested by Jacob Broadwell to be present, as he, Elijah, was owner of an undivided third of the John Day tract. Hpon this occasion Jacob Broadwell planted a stone at B, the southwest corner of the tract. This stone appears to have been moved, and is found how 3.76 rods from B. He also says they planted a stone at the southeast corner, A on the map, near a large ash.

This transaction was between 1830 and 1834. It is impossible that the Broadwells and Days should have gone over the tract, run its boundaries, and not known where they were, especially when the Day family were living upon it. At least, if they did not know before, they fixed tbe lines then, and fixed tbem according to tbe description we bave already given.

Elijah is corroborated by others wbo were present at this survey — Artemus Hay and Timothy Hay. There is nothing to contradict this evidence. It is clear, therefore, that a mistake was made in the beginning corner, and that the Hays are entitled to hold what the evidence shows they have always had in possession since their deed was made.

There is nothing in the objection, that because Jacob Broadwell did not have the legal title in 1804, that therefore the Day deed conveyed nothing. Broadwell was in possession; he made a deed with covenants of warranty, and subsequently acquired the legal title. That title therefore passed to Hay. The principle is well settled by the .authorities quoted by defendant, that where one has sold with warranty what he does not own but subsequently acquires, the grantee takes the title by estoppel.

Judgment of, the common pleas affirmed.  