
    Cleghorn v. Shields.
    Boundaries, 9 C. J. p. 286, n. 92.
    Contracts, 13 C. J. p. 777, n. ’7.
    Evidence, 23 C. J. p. 40, n. 53.
    Trial, 38 Cyc. p. 1565, n. 84; p. 1566, n. 86.
    No. 6032.
    December 15, 1927.
   Gilbert, J.

1. There is no conflict in the evidence on the controlling ,issues, and that introduced, with all reasonable deductions or inferences therefrom, demanded a verdict for the plaintiff, as directed by the court.

(a) The written agreement to abide by the survey prescribing the manner in which it was to be done was proved without contradiction.

(b) The defendant’s answer alleged that “the plaintiff overreached, deceived, and misled” the defendant into signing the written agreement, but the evidence introduced to support the allegation was insufficient to require that issue to be submitted to the jury.

2. Parol evidence as to the terms of the agreement, and as to statements of the defendant made previously to the execution of the paper, is ineffectual to vary the terms of the written instrument, even though admitted without objection. Civil Code (1910), §§ 4268, 5788.

Judgment affirmed.

All the Justices concur, except Russell, G. J., amd Atkinson, J., who dissent.

Equitable petition. Before Judge Maddox. Walker superior court. April 1, 1927.

Shields and Oleghorn entered into the following agreement: “Whereas said parties are the owners of adjoining tracts of land, the said party of the first part owning lot No. 66 in the 26th district and 3rd section of said county, and said party of the second part owning a portion of lot of land No. 65 in said district and section; and whereas the line between said adjoining tracts of land is in dispute, now therefore in order to settle and establish the line between said adjoining tracts of land, the parties hereto do agree as follows: That Julius Rink, as surveyor, may run and establish said line by starting at a post oak corner tree common to the corners of Clay Puryear, Miss Sarah Tate and Bart Magill, south of said disputed line, and run the line therefrom, allowing the usual magnetic variation in a north direction to the north line of said lots Nos. 65 and 66, and the line so run, staked out and marked by said Julius Rink shall be accepted by the parties hereto as the true and correct dividing line between the tracts of land owned by the parties hereto. The parties hereto hereby agree that the expense incident to the running of said line shall be borne equally by the parties hereto.” Later Shields brought ah equitable petition alleging said agreement,' attaching a copy thereof, and setting up that after said line was run said Oleghorn refused to accept it as the dividing line; that petitioner had erected a fence on said line which Shields had torn down; and praying that Oleghorn be enjoined from again moving or molesting said fence," and that said line run by the surveyor be decreed the true dividing line between the adjoining tracts of land of Shields and Oleghorn. Evidence was introduced by both sides, at the conclusion of which the court directed a verdict for plaintiff. The defendant moved for a new trial generally and specially; said motion was overruled, and he excepted.

B. M. W. Glenn and Norman Shattuclc, for plaintiff in error.

Rosser & Shaw, contra.  