
    * Nathaniel Howe & Al. versus Henry Bass.
    Land conveyed by a deed is described as measuring forty-five feet, and as bounded by certain known and visible monuments. The distance between the monuments is sixty-five feet. The purchaser shall hold by the monuments, and not by the measure described.
    This was a writ of entry brought to recover seisin and possession of the land described, of which the demandants allege that Elizabeth Gilman was seised until the entry and disseisin committed by Bass, the tenant; and that from the said Elizabeth the right descended to Joshua Howe, her cousin, and father of the de mandan ts.
    Upon the general issue pleaded, a verdict was rendered for the tenant, upon the review, which was tried at the last November term, before Parker, J. And the cause now came before the Court upon a motion of the demandants for a new trial, on the ground that the judge had misdirected the jury as to the proper and legal construction of a deed given in evidence on the trial.
    The facts proved at the trial, as far as they involve the merits of this motion, were that on the 21st of January, 1707-8, Robert Calef and his wife conveyed, by deed, to Israel Howe-, a piece of land in Boston, described as bounded forty-five feet on Orange Street; and on the 10th of October following, Joseph and Hannah Simpson conveyed to said Howe another piece of land adjoining that aforementioned, bounding twenty feet on Orange Street, which is the land demanded in this action. Israel Howe died seised of both parcels, and from him they descended to the said Elizabeth Gilman, who becoming non compos, Joseph Howe, as her guardian, entered and took the profits until the year 1775, or, thereabouts. On the 5th of June, 1778, the said Joseph, guardian as aforesaid, and being thereto authorized by a resolve of the legislature, by his deed of that date conveyed to Bass, the present tenant, a piece of land described as bounded on Orange Street, and there measuring forty-five feet, and on one side by land of the' heirs of Hannah Kent, and on the other side by land of the heirs of Joseph Veasie. It appeared by the plan used in the case, which was agreed to represent truly the land, as owned by the heirs of Kent and of Veasie at the time of executing the last-mentioned deed, that the *lot between the heirs of Kent and Veasie measured [ * 381 ] sixty-five feet on Orange Street, and that the deed to Bass would be satisfied, as to admeasurement, by supposing it was intended to convey only the lot which Calef and his wife sold to Israel Howe. The demandants offered evidence to shew .hat the deed to Bass was drawn by the deed of Calef and his wife to Howe; but this was rejected by the judge, who also directed the jury that the construction of the deed to Bass was a matter of law, and that where certain fixed monuments or immovable objects are referred to, for the purpose of ascertaining the quantity of land conveyed, those monuments must govern, although it should appear that the actual admeasurement did not agree with the extent stated in the deed; and therefore that, in the present case, by the words of the deed of Howe to Bass, all the land between the heirs of Kent and of Veasie passed to the grantee, although it measured sixty-five feet on the street, and the deed described it as measuring only forty-five feet.
    The judge also stated to the jury, that Israel Howe having purchased the two parcels a century ago, and within a year of each other, the whole must have been considered as one lot for a great length of time; and that from the petition to the legislature for license to sell, the resolve authorizing the sale, the deed of the guardian, and his acquiescence in the possession of the whole under that deed, there could be no doubt, if it were proper to go out of the deed for an explanation, that the whole lot owned by Elizabeth Gilman was intended to be sold.
    It was agreed that the guardian pursued his authority in selling to Bass, that the sale was fair, and that Bass was the highest bidder.
    And now the counsel for the demandants, in support of the motion for a new trial, agreed to the general principle, laid down by the judge at the trial, that monuments were a more sure guide in the construction of a deed than the length or direction of lines. But they thought the application of the principle in the present case too rigid, and contended that they ought to have been [ * 382 ] permitted to introduce circumstances which * would have led the jury to a different conclusion. They also endeavored to make a distinction in their favor between one selling land under a naked authority, as a guardian, executor, &c., and the actual owner of the land; and that in the former case, as the rights of others were to be bound, the deed was not to be taken so strongly against the grantor as where the grantor’s own rights were to be affected ; that as the title of Elizabeth Gilman, the ward, was derived from two deeds, it would have been proper evidence to be left with the jury, that one of those deeds only was handed- to the scrivener, who was employed to draw the deed to Bass, and that that deed contained the forty-five feet fronting on the street. It was also observed that, as the land conveyed in the deed conveying the forty-five feet was bounded in part on Vvasie’s heirs, the land in the deed from Simpson term noting in a point before it reached the rear of the first-described parcel, the construction, contended for by the demandants would better reconcile the difference between the two descriptions than that insisted on by the tenant, and would give some effect to every part of the description in the deed.
   The Court,

without hearing the tenant’s counsel against the motion, delivered their opinion as follows : —

Parker, J.

Being satisfied with the opinion I gave on the trial, I see no reason for sending the cause again to a jury. There is no rule of construction more established than this, that where a deed describes land by its admeasurement, and at the same time by known and visible monuments, these latter shall govern. And the rule is bottomed on the soundest reason. There may be mistakes in measuring land, but there can be none in monuments. When a party is about purchasing land, he naturally estimates its quantity, and of course its value, by the fences which enclose it, or by other fixed monuments which mark its boundaries, and he purchases accordingly. The jury were therefore instructed by me that, as the land contained within the monuments mentioned in the deed in question was all which had belonged to Elizabeth Gilman, the ward of the grantor, the construction of that deed should be that it conveyed all her * land. There was a case [ * 383 ] lately determined in the Supreme Court of New York, in which this principle is recognized and settled.

Sewall, J.

I take the general rule to be, that deeds and other instruments in writing are to be construed by themselves, except only when they contain a latent ambiguity. In the deed in question there is nothing ambiguous. Where monuments and ad-measurements are both mentioned in the description of land conveyed, the purchaser must hold by the boundaries given by the monuments. I have known this question frequently agitated, and it has uniformly been so settled. It would have been improper to have gone into the inquiry respecting the title-deed handed to the scrivener. The direction of the judge on the trial appears to me to have been proper in every instance, and I see no reason for granting another trial on the ground disclosed.

Amory and Otis for the demandants.

Gray for the tenant.

Sedgwick, J.

Two questions might have arisen in this cause-viz., whether the guardian pursued the authority vested in him, and which of the descriptions of the land conveyed by his deed is to prevail. But the first of these questions having been prevented by an agreement of the parties filed in the cause, by which we are to take it for granted that the authority was strictly pursued, the.deed remains to be construed in the same manner as if it was a conveyance in the grantor’s own right. In the construction of a deed, we are never to go out of the deed itself, unless there be contained in it some latent ambiguity, or a reference to some extraneous circumstance. The only object of inquiry, out of the deed in question, is, Where is Veasie’s land ? That being found, the deed must be construed by itself. It has been so long and invariably held in this country that in case of a variance, in the description of [ * 384 ] land, between * monuments and the length of lines, the former are to govern, that the rule cannot now be shaken ; and from the application of this rule to the present case, it follows that the land conveyed by Howe to Bass must adjoin the land of Veasie’s heirs the whole length of one of its sides. I am therefore of opinion that the direction of the judge was right, and that there ought to be no new trial.

The Chief Justice, who had been of counsel in the cause, and Thatcher, J., absent.

Judgment according to verdict. 
      
      
         Tills was the case of Man and Toles vs. Pearson, 2 Johnson's Rep. 37. — P. gave a bond to M. and T. with condition, by which he agreed to convey to them a lot of land, number 78, in the township of Lysandcr, <fcc., containing 600 acres. A deed was delivered to M. and P., describing the lot as “ containing 600 acres, be the same more or less.” On actual survey, the lot was found to contain only 421 acres and one eighth. In an action brought against P. on the bond, it was held that the mention oí the quantity of acres was matter of description, and that the delivery of the deed foi the lot of land, according to its usual and known description, was a performance of Ihe condition of the bond.
     
      
      
         Revere vs. Leonard & Al. 1 Mass. Rep. 91.
     
      
      
         Pernam vs. Wead, 6 Mass. Rep. 131. — Gerish vs. Bearce & Al. 11 Mass. Rep. 193. — Aikin vs. Sanford, 5 Mass. Rep. 494. — Davis & Al. vs. Rainsford, 17 Mass. Rep. 207. — Folger vs. Mitchell & Al. 3 Pick. 396. — Brimmer vs. Proprietors Long Wharf, 5 Pick. 131.— Learned vs. Morrill, 2 R. H. R. 197. — Thomas, Lessee, vs. Godfrey, 3 G. & J. 192. — Dickson vs. Wendall, 3 Cow 147. — Kennebeck vs. Tiffany, 1 Greenl. 219. — Jackson vs. Camp. 1 Cow. 605. — Jackson vs. Frost, 5 Cowen, 346. — Doe vs. Thomson, 5 Cow. 371. — Jackson vs. Widger, 7 Cow. 723. — Jackson vs. Moore, 6 Cow. 706.— Boldon vs. Seymore, 8 Cow. 19
     