
    Addison County,
    January Term, 1828.
    
      William White vs. Dudley Everest.
    
    ’fhat a line made by the proprietors in the first division of the town into lots above thirty years ago, is conclusive as a division of such lots: but a line run by the agreement of two owners of the lots is not thus conclusive but may be weighed by the jury in connection with other testimony tending to confirm it as a division.
    
      That a person not named in the suit, but who, in' point ofinterestis actual dcf* fendant, cannot be compelled to testify for the plaintiff in the suit.
    ■ The questions decided in this case appear in the following bilí of exceptions allowed at the County Court,, to wit: • “ This is an; “ action of ejectment to recover the seizin and possession of ten “ acres of land in the township of Addison, and described as part “ of lot No. 24 in the second division of the 8000-acre-tract, so cal- “ led. Plea, general issue.' Verdict, not guilty,
    
    “ On the trial the plaintiff'relied upon making, out a title to the “ premises in question by deeds of conveyance-,• and by 'an undis- “ turbed possession of the premises, previous to the ouster by the “ defendant* for fifteen years. It became a material question in “ the case to determine where the North line of lot no. 24 should “ be. The plaintiff introduced evidence tending to prove* that “ tlie said 8000-acre-tract was surveyed and allotted underthe di- “ rection of the original proprietors of the same, between the “ years 1785, and 1787, — that a tier of lots in said tract was “ then laid out, of which said lot'No. 24 was one, from south to “ north, from No. 16 to 25, inclusive, — and that the division- “ fines of said lots were not, generally, run at that time by the sur- “ veyor,and particularly the division-lines between lots 24 and 25.
    “ The defendant introduced evidence tending to show, that the “ division lines between said lots 24 and 25, and also between 22 “ and 23, were run at the time of the original survey. The plain- “ tiff also introduced evidence tending to shew that in 1794, one “ Kellogg was the owner of lot 25, and one Vallance, one of the “ original proprietors of said tract, owned lot 24; that said Vallance “ deceased nearly 20 years ago — that during that period, Vallance “ declared that he and said Kellogg had run a division-line between “ said lots, which said line was, a few days after, traced through “ by John Harris,mi that the same was then a new line,recently “ marked, and the same witness testified that on clearing the “land in 1795, he discovered an old line marked, running par- “ allel with, and about 12 rods south of,that line; that in the year “ 1797, Timothy Harris was the owner of lot25, and John Har-iris was the owner of lot 24'. By agreement of said Harris, 10 “ acres off the north side of lot 24 was to be set off to said Timothy, “ and file same was set off fay them from the north side of said lot, taking the line said to be run by said $ Addison, Jan. 1823. “ VallanmwA'Kdlogg as the north line of said \ white vs. Everest.■ “lot. At the time the said 10 acres was set off, as aforesaid, “the said John was in possession of said lot 24 under the assur- “ anee that a title to said lot would be made out to him, and soon “after, viz. on the 30th of November, 1797, a deed was executed. “ to him by said Vallance of lot 23, as also of lot 24, with the “ exception of 10 acres off the north side of lot 24, that said John “ continued to occupy the said lot to the line of the 10 acres set off, “ as aforesaid, until the year 1810, when he conveyed the said lot, “with the exception of the 10 acres, to the plaintiff, who posses- “ sed the same to the time of the commencement of this suit.— “The plaintiff urged on the trial, that the agreement of the first “ owners of the said two lots, in establishing the division-line of “ said lots in manner aforesaid, and which was acquiesced in by “the owners, from 1797 to 1808, when the first interruption was “ pretended to have been made to the possession of the said John Harris, as aforesaid, was conclusive evidence of the division-V line between the said two lots being established in law. The •“ court,in their charge to the Jury upon this point instructed them, “ that,if in the original allotment and survey a line had been act- “ ually run and marked between lot 24 and 25, that must be con- “ sidered the true line between the said lots : that a verbal agree- “ ment between the owners of said two lots to mark and establish “ the division-line of said lots, and the same being done under “ such agreement, would not be conclusive upon their respective “ rights, or binding on either owner ; but that the evidence of “ such agreement and line so made was proper evidence to go to “ the jury for them to give the fact that weight upon the whole evi- “ dence as they should think proper.
    “ Upon the trial the defendant introduced evidence tending to “prove that in 1812 one Zadock Everest ploughed and sowed a “ small piece of oats on said disputed premises. The plaintiff, to “ do away that evidence of interruption to his possession, intródu- “ ced the said Zadock as a witness, and offered to prove by him “that he obtained permission from the plaintiff to sow said oats. — • “The defendant objected to compelling said witness to testify, it “appearing that the said Zadock was the real party-defendant in the “ Snit, and claimed to be tbe owner of said “ disputed premises at the time of said ouster, “ and still claimed to be the owner of tbe same,: tbe said Dudley “ Everest being in possession under him and defending in his said “ Zadoclds right: whereupon the court decided that the said Za- “ doclc was not obliged to testify as a witness in the case. To “ which decision and charge the plaintiff excepts, and moves that “ the aforesaid questions of law may be placed upon the records, “ and may pass to the Supreme Court for a final decision, and “ that the court will order execution to be stayed.
    “ Allowed, by R. SkinNer, Ch. Judge.”
    The counsel for the plaintiff, in support of his exceptions, contended, That evidence of what deceased persons have said in regard to boundary lines is proper : and the testimony of what Hal-lance said connected with the discovery of the same line by Har-rises enough to shew that as early as 1794 Vállame and Kellogg, the owners of lots 24 and 25,had agreed upon and run the division line which the plaintiff now claims. Whether there was any division line run by the surveyor before, and where it was, if run at all, was doubtful, as appears by the case. In 1797 John and Timothy Harris had become the adjoining owners of lots 24 and 25, and they recognised the same line, and divided their land accordingly. It appears that these adjoining owners, and their grantees, possessed according to this line 13 years, without the slightest interruption, and up to the present time, without any other than an occasional interruption by the defendant, which was not known to the plaintiff. After this agreement by the owners as to the line and subsequent possession, they ought to be estopped from setting up any other. In other words it should be taken, as conclusive evidence of the place where the line ought to be. When the contract by which a lot of land is conveyed is putin writing and recorded, the whole object of the statute of frauds is accomplished. The actual location or running of the boundary lines is never putin writing or on record : as to this, parol evidence is admissible. And actual divisions by adjoining owners, or indeed, any parol agreement that relates merely to .the ascertainment of the place where the line runs, ought to be binding. It is well settled in England and in New York, that an award of arbitrators upon such a subject pre-"«eludes either party from subsequently disputing what is thus decided by’the arbitrators. An award, in its nature, is no more binding than an agreement. The parties, when they agree that a line is in a particular place, are as much bound as if they agree that A shall say where it is, and A 'says that it is in that place. — Adams on Eject. 89. — 3 East, 15, Morris vs. Rosser. — 15 Johns. 197, Sellick vs. Adams. The case •of Jackson eoo.dem. vs. Vancorlear, 11 Johns. 123, is exactly in point with the present case. In that case, the court say “The “parties themselves ought to be the best judges of the boundaries “ of their own lands; and after they have deliberately settled a “ boundary line between them, it would give too much encourage- “ menttothe spirit of litigation to look beyond such settlement and “ break up the lines so established between them.” In Jackson vs. Jjarder, 4 Johns. 212, it was decided that among ténants in common, whose titles are distinct, parol divisions, followed by possession accordingly, are binding. In Jackson vs. Ogden, 4 John-• son, 1.43, Judge SpenCeh says, “ that parties whose rights to real “ property may be perfect, and tpe boundaries of which maybe sus- “ ceptible.'of certain and precise ascertainment, may, by their acts, i{ conclude themselves by establishing other & different boundaries.’'
    
      Zadock Everest ought to have been admitted as a witness. He was, in no sense, a party to the suit, and not even cited or vouched to defend. It appeared, to be sure, that he claimed to own the land, and that Dudley Everest went into possession under him •and defended by his title. The most that could be made of this would be, that Dudley, if beaten in this suit, coüld collect, in another suit against Zadock, what he lost in this ; though there was no eviden&e even of such a contract, at most, it gave to Zadock art interest in the suit, but in no sense made him a party. To compel him to answer might be the means of charging him with á debt; but this would not be an excuse even for him. — Phil. Ev¡. 208, and note. — Peake's Ev. 193, note. Although it Was formere ly contended that the witness himself, in such case, coüld refuse to testify, yet it was never supposed that a party coüld complain, because a witness was called to testify against his own interest. Yet the obj ection in this case came from the party. Zadock Everest had no right to place Dudley in a situation to be sued, and thus deprive the plaintiff of his testimomy, and at the same time of his own, on the ground that he was the party. The plaintiff could not give in evidence the admissions of Zadock as a party to tfie suit, npr would his release to the plaintifFhave settled or stopped the suit, H.e was indeed, in no sense, a party to the suit. AH that can be said is that his title depended on the same question then in issue,, which is frequently the case with witnesses. — 15 Mass. R. 223, Butler vs. Damon j
    
    
      Argument of counsel for defendant. Two exceptions are taken by the plaintiff in this case to the decision of the court on trial. The first relates to the charge to the jury upon the subject of the line run, or supposed to be run, by Kellogg and Vallante, and. the other to the rejection of the testimony of Zadock Everest.
    
    As to the first exception, it is proper to premise that there is, nothing in the statement of the case,, and, indeed, nothing occurred on trial, to justify the charge- called for by the plaintiff, nor to require the charge of the court to the extent tp which, from the statement of the case, it might he understood to go. If the owners of adjoining lots procure the division line to be- run between them with the view simply of ascertaining, where the original line, may be, although it may- be done by mutual consent, still it. is most clear that they are not bound by it, if it. should appear that such running is incorrect, and does not accord with the original line. If, however, this should be done as a matter of compromise with a view to establish a certain line, right or wrong, and to terminate a dispute, it would, to say the least- of it, present a very different question. The charge- might be understood, in the terms in which it is expressed in the exceptions, to decide that, even in the latter case, the parties would be bound. Whether, if it be so understood, it is correct or not, is not material, unless it should appear from the evidence that a charge upon this point was called for. It is a- settled rule, that if the court inadvertently charge upon a point not arising out of the case, a new trial, will not b.e granted upon the ground that the charge in that respect is erroneous. The question then i-s, what charge was proper and pertinent, upon, the facts detailed in the case ? The evidence is that Vallance, in. 1794, being the owner on one side of tbe disputed line, stated to the witness that he and Kellogg, the: owner on the other side, rim- the division line, &c. The first objection to this is, that it is not legal evidence of'th,e fact that the line was '-■Mil by them. It is hearsay merely, and although may be admitted with respect to ancient boimdaries, still the time elapsed is too- 'short to admitof the application of that rule. The rule should be applied only in those cases where from the lapse of timé itmaybe fairly presumed that the Witness, originally acquainted with the fact, cannot be found. In the second place, the declarations of Vail anee, even if evidence, prove no more than simply the running of the line. It is not stated, nor can it be inferred from his statement, that the line thus run was agreed upon and established by them as and for the true line. Whether the same might be correct or not, the only question therefrom arising upon this evidence is, whether the mere running of the line with á view, as must be intended, to ascertain the true line, is tobe considered conclusive upon the party? Upon this question there can be no doubt. And ifthe Court went further,and charged as to the effect of a supposed agreement of which there was no evidence, the charge is to he considered as irrelevant and immaterial. But the charge, in the terms of it, may be supported. If the line had been settled by deed, the parties would undoubtedly have been bound; or if no original line had been rün, perhaps the One agreed upon by the parties must be taken from necessity to be the true line. But if there Was an original line, and the new line was variant from that, the parties could not be bound by parol, as the agreement would operate as a conveyance, and would be within the statute of frauds. Besides, both the parties in this case held through intermediate conveyance from Variance and Kellogg, h could not be bound by any agreement of theirs, whether committed to writing or recorded. Again, if two parties do agree upon a line, supposing it tó be a true line, yet if by mistake in the boundaries, or inaccuracy in running, it should prove not to be so, the parties would not be bound.
    The second exception is founded on the rejection of Zadoch Everest .as a witness. The case states that Zadoch Everest is the real party defendant, and the real, claimant of the land. It is an established rule,that a party is not compellable to testify in his own case. -This rule is founded oil the most substantial reasons, Which apply as well to lilis case as if the said Zadoch had been the nominal as well as real party. Besides, it is now settled that a witness cannot be compelled to testify against' In® own interest. The interest of Zadock in this case is apparent, and it certainly was . not competent for the plaintiff to call upon him to testify for the purpose, not only of defeating his own claim to the land, but also of subjecting him to the cost of the suit. — Sw. Ev. 77 — 78.—Peake’s. Ev. 185.
   Hutchinson, J.

after alluding to the prominent facts in the case, delivered the opinion of the court. The principal business for the jury was to ascertain where the line is that legally sepa- ' ratesbetween lot 24 and 25. For, we must understand from the case, that the plaintiff owns lot No. 24, and the defendant lot No. 25, excepting that the north ten acres of 24 have become legally attached to No. 25. If it were not so, the party excepting must show it, in order to evince that the decision of the County Court of which he complains is incorrect. Now, the plaintiff contends that the defendanthas gone south, and evicted him from a second ten acres of lot No 24. To show this, the plaintiff has endeavored to establish a line so located as to answer that purpose ; and contends it was the ancient division line made by the proprietors. Or, ifnot, was made by agreement of the owners, and acquiesced in by them so long as to place it out of dispute!

The court instructed the jury, that if the line the plaintiff contends for was made in the first division of the town, it must be considered the true line between those lots. Had the jury so found the fact, the plaintiff must have had ,a verdict.

The acquiesence in the line made by agreement of the parties falls short of fifteen years. The jury were, therefore, correctly instructed, that this line so made was not conclusive between the parties. If it had been so made, and acquiesced in as a division line fifteen years, that would have rendered it conclusive. An agreement and acquiescence short of that period cannot, of themselves, preclude either party in interest from claiming a true division as other circumstances shall dictate.

' The second question relates to the testimony of Zadock Ev~ erst, who, it seems, was unwilling to testify for the plaintiff to a fact which, if proved, would have made that the plaintiff’s act, which the defendant relies upon as an interruption of the plaintiff’s possession. The court refused to compel Zadock to testify, and the plaintiff excepted to that decision.' It appears by the case that said Zadock had not merely an interest in the question contested, but an interest in the cause on trial; in fact, that he was really the defendant, though not nominally so ; the defendant’s possession being as that of á tenant to said Zadock. Observing this distinction decides the question. Zadock -can no more be compelled to testify against his interest, when his interest is made to appeal-, as stated in the case, than if it appeared of record by his being made defendant. The plaintiff’s counsel urge the hardship of the plaintiff’s situation, aá they would not be permitted to prove Zadock’s concessions if they made for plaintiff. That is, probably, a supposition for the sake of argument. Had evidence of his concessions been offered and excluded, that would have presented a question for the consideration of this court which is not now in the case.

Sates, for the plaintiff.

Phelps, for the defendant.

Judgment must be entered on the verdict with the cost of this motion.  