
    Richardson v. Curtiss.
    1. It is not error to charge that if the jury finds a specified fact in a case, decisive of the rights of the parties, proved, they should find a verdict for the party in whose favor such fact is established.
    2. Calls in a deed can not be controlled or qualified by any supposed intention of the grantor, so as to affect the rights of an abutting landowner.
    Error to the District Court of Summit county.
    The action was one in the ordinary form to recover possession of eight and eighty-one one-hundredths acres of land, situate in Summit county, Ohio, and for mesne profits.
    A more extended statement of the pleadings in the case is unnecessary to an understanding of the questions in the ease.
    The record shows that one Roger Haskill was the common source of title. On the trial, the parties respectively introduced in evidence their deeds, evidencing their proper titles.
    The dates and description of the land in but three of them reflect directly upon the questions involved in error.
    Roger Haskill owned a tract of land known as lot No. 22. The north part he sold to one Wooden, and that part was called the Wooden lot; the other part of lot No. 22 he sold to one Miller. Plaintiff owns the Miller lot, conveyed to him by deed dated November 30, 1873, executed by the heirs at law of Roger Haskell, and describes the land as follows:
    “ Situated in the township of Boston, in the count}' of Summit and State of Ohio, and known as the south part of lot No. 22, bounded east, south, and west by the lot lines, and north by the south line of land heretofore called the Wooden lot, but now owned by Joseph Drake, and containing one hundred and thirty-five acres of land, be the same more or less.”
    The deed under which Joseph Drake held title was made by Humphrey and Ashman, to Joseph Drake and Nathan Drake, dated December 18, 1857, and was for part of lot No. 22, called the Wooden lot, and described as follows:
    “ Situate in the township of Boston, county of Summit and State of Ohio, and is bounded and described as follows: Being all that part of lot No. 22 heretofore couveyed by John Harrison to the said Ashman and Humphrey, excepting that portion of the same lot which lies north of the road leading from Esquire Ozman’s to Boston village, which has been sold to Henry Post, containing one hundred and ninety-five acres of land, more or less.”
    The deed from Joseph Drake and Nathan Drake to Mary M. Richardson, dated November 80, 1863, describes the premises therein as follows :
    “Situated in the township of Boston, in the county of Summit and State of Ohio, and is known and described as follows : Being all that part of lot 22 heretofore conveyed by John Garrison to George P. Ashman and Van R. Humphrey, and same conveyed by said Ashman and Humphrey to the aforesaid Joseph and Nathan Drake, being all that part of said lot 22, excepting what lies north of the road leading from Esquire Ozman’s to Boston village, which has been sold to Henry Post, containing one hundred and ninety-five acres of land, be the same more or less.”
    The plaintiff’, fui’ther to maintain the issue on his part, introduced testimony to show that continually from and after the 18th day of December, 1857, Joseph Drake was in possession of that part of said lot 22, which was known as the Wooden lot, but that said Drake had no title by-deed to any part of said lot except by said deed from Humphrey and Ashman to said Joseph and Nathan Drake, but that he occupied under his said grant down to the line fence built by Wooden and Miller, claiming the whole as the Wooden lot. And the plaintiff, further to maintain the issues on his part, introduced evidence tending to show that the south lino of said two hundred acres, being the north part of lot 22, and bounded south by a line parallel to the north line thereof, would be about five rods north of the south line of the land in the possession of the defendants at the time of the commencement of this action, and the quantity of land lying between said south line of said two hundred acres aud said south line of what was so in possession of the defendants is eight and twenty-two hundredths acres. And the plaintiff, further to maintain his side of said issues, gave evidence tending to show that in the spring of the year 1842 said Roger Haskell sold said north part of said lot 22 to B. S. Wooden by contract of sale; that the whole of said lot being then wild, said Wooden cleared off a part of said north part, and, after holding possession thereof a few years, and failing to make payments on said contract, he surrendered the same to said Roger Haskell.
    And the defendants, to maintain the issues on their part in said trial, gave evidence tending to prove that in the spriug of the year 1842 said Roger Haskell sold said two hundred acres, the north part of said lot 22, to E. S. Wooden, who took possession, cleared off, and cultivated a considerable part thereof, and that about the same time said Roger Haskell sold all of said lot 22, south of said tw'o hundred acres, to one Miller, who also took possession of said south part, and cleared and cultivated some part thereof, and that while said Wooden and Miller were so in possession they, by consent of said Haskell, procured a surveyor to measure off the said two hundred acres in the north part of said lot, in order to fix the boundary line between the parts of said lot so sold as aforesaid respectively to said "Wooden and Miller, and that they thereupon made and built a fence from the east line of said lot across the same westward on said agreed line, which they agreed upon as making the boundary between their lands, . . . and that all the land north of said fence had been called the Wooden lot ever since Wooden occupied it, and such lot, called and known as the Wooden lot, included all of said lot 22, which lies north of said fence so agreed upon as making the boundary line between the possessions of said Wooden and Miller. The defendant then offered other testimony, and rested.
    And thereupon the plaintiff, further to maintain the issues on his part by rebuttal, gave evidence tending to prove that said fence was fixed at its starting point on the east line of said lot by mistake and an erroneous survey; that it was made only part of the way across said lot, while the same was in possession of said Wooden and Miller; that said fence was crooked, in some parts varying some rods from a straight line, and that some part of the way no fence was ever made, and that said plaintiffs and defendants, who each took and held possession (the defendants north of said fence aud the plaintiff' south thereof) from the dates of their respective deeds aforesaid had never, either of them, recognized and acknowledged said fence as the proper boundary line between their lands.
    On the conclusion of the testimony, and argument to the jury, the court charged the jury, after other instructions to them, as follows:
    “ If you find that the southern boundary of the land, in dispute between the parties, was also the southern boundary of the Wooden lot, so called, and commonly known as such, then the plaintiff' can not recover, and you must find for the defendants.”
    And the plaintiff then asked the court to charge the jury : “ That the south line of the Wooden lot, as intended in the deed from Haskells to Curtiss, could not be south of the south line of the land described in the deed of Drake.”
    
      This instruction the court refused to give to the jury, but, iustead thereof, said to the jury “that the words ‘ now owned by Joseph Drake’ did not qualify the description, in that deed, so as to give the plaintiff title to any land north of the south line of what was known as the "Wooden lot.”
    To which charge of the court to the jury, and refusal to charge as aforesaid, the plaintiff excepts.
    The jury returned into court a verdict for defendants. A motion for a new trial was made and overruled. On a petition in error, prosecuted in the district court, the judgment of the court of common pleas was reversed. The errors assigned in the district court were as follows:
    1. That the court aforesaid erred in the instructions given to the jury on the trial of said action. ■
    2. That the court erred in refusing to give the instructions which the said plaintiff prayed the said court to give.
    3. That said judgment was given for the said defendants when it ought to have been given for the plaintiff according to the law of the land.
    This proceeding in error is to obtain a reversal of the judgment of the district court reversing the judgment of the court of common pleas.
    
      H. McKinney, for plaintiffs in error:
    “Intention of parties will not control a call in a deed; lands and titles are transferred by deed, not by intention.” McAferty v. Conover, 7 Ohio St. 104; Pernam v. Weed, 6 Mass. 131; Hower v. Pass, 2 Mass. 380; Powell v. Clark, 5 Mass. 355.
    “A highway, mentioned in a deed as a boundary, must be understood, the highway as it practically exists, the apparent and traveled highway, aud not the highway as it exists of record merely.” 31 Conn. 165; Sproul v. Foye, 55 Me. 162.
    “ Where the boundary lines, as given in a deed, will satisfy either of two conflicting hypotheses as to what was meant to be conveyed, and the lot conveyed is further described as ‘ the McKay farm, so called,’ the finding of the jury, as to the location of the ‘ McKay farm,’ will render the description certain, and determine what land passes.” Madden v. Tucker, 46 Me. 367; Howell v. Merrell, 30 Mich. 283.
    “ What are the termini of the premises conveyed, is a matter of law. Where they are is a matter of fact.” 70 N. C. 706; 33 Iowa, 110.
    “ A tract of land, having a well-known name, may be described thereby in a deed.” Haley v. Amnesty, 44 Cal. 132; Cutter v. Caruthers, 48 Cal. 178.
    The.case last cited holds, that where one tract is bounded on one side by another tract, the deeds of conveyance of the respective tracts are not competent evidence to show where the line was ; reliance must solely be had in the deed conveying the land in controversy. Cox v. Couch, 8 Penn. St. 178; Lodge v. Barnett, 46 Penn. St. 477 ; Hare v. Lessee of Origin Harris, 14. Ohio, 529; Mann v. Pearson, 2 Johns. 37; Marion v. Bennett, 26 Wend. 169; 4 Mason C. C. 414; 26 Texas, 34; Snow v. Chapman, 1 Root (Coun.), 528.
    
      N. W. Goodhue and J. S. Carpenter, for defendant in error.
   Ashburn, J.

I. By the testimony on the record developing the issue of title, the controlling question of fact for the jury to determine was the location of the southern boundary of the lot of land known as the Wooden lot. Its location was a controverted fact. When found, it constituted the divisiou line between the lands of plaintiff and defendant. The southern boundary of the Wooden lot was the northern boundary of Curtiss’ land.

The true location of this division line was the main question of fact to be determined by the jury. So treating it, the court, in effect, charged the jury as a question of law, that if they found the southern boundary of the parcel of laud in dispute was identical with the southern boundary of the Wooden lot, so commonly known as such, the plaintiff could not recover. This charge being clear, distinct, and directly applicable to the facts of the case, we discover no error in it.

II. Curtiss claims, the court of common pleas erred in refusing, on his request, to charge the jury, “ That the south line of the "Wooden lot,.as intended in the'deeds from the Haskells to Curtiss, could not be south of the south line of the land described in the deed to Drake.”

As already stated, the south boundary Hue of the Wooden lot, wherever found, would be the division line between the lands of plaintiff and defendant. The above request, in effect, required the court to charge that the words, “ and north by the south line of the land heretofore called the Wooden lot,” were controlled and limited by a supposed intentiou of the Haskells implied by the words in the Curtiss deed, “ but now owned by Joseph Drake.” The ex parte intention of Curtiss’ grantors could not rightfully override an express call in his deed, and take a material fact in the case from the consideration of the jury.

. At the time the Curtiss deed was. executed, Drake did not have a scrap of title to any portion of the Wooden lot. By the deeds in evidence he deeded the land to Mrs. Richardson in 1863, and the Curtiss deed was not executed until 1873.

We think the court did not err in refusing to charge as requested, nor in charging, “ That the words ‘ now owned by Joseph Drake’ did not qualify the description in the deed so as to give the plaintiff title to any land north of the south line of what was known as the Wooden lot,”

The defendant in error claims the words in the Curtiss deed, “but now,” are “very significant; — it is the definiteness of what is now and here, contrasted with the iudefiniteness of what was once — heretofore^but is gone.” These words lose all special significance, ■when we find that, at the date of the Curtiss deed, Joseph Drake did not own any portion of the Wooden lot. The court was correct in denying to the phrase “now owned by Joseph Drake” any qualifying quality.

The judgment of the district court is reversed, and this court now proceeding to render the judgment the district court should have rendered, affirms the judgment of the court of common pleas.  