
    Alfred Lewellen vs. Temperance Gardner.
    
      Trespass to try Title — Deed.
    Deed of conveyance of “ a parcel or tract of land containing one hundred and seventy-eight acres, being the east of a tract called,” &c., “ to be run off and a plat hereunto attached, situate,” &c., held to be a good executed conveyance of one hundred and seventy-eight acres of the eastern part of the tract named and described, and that the grantee was not bound by a line afterwards run by the grantor without liis knowledge or consent which assigned to him less than the number of acres called for.
    BEFORE GLOVER, J., AT LANCASTER, SPRING TERM, 1860.
    
      The report of bis Honor, the presiding Judge, is as follows :
    
      “ Tbe action was trespass to try titles. Botb plaintiff and defendant traced title from William J. Stogner, who owned tbe land called tbe Cook place. In 1846 be conveyed to the plaintiff one ' piece, parcel, or tract of land containing one hundred and seventy-eight acres, being the east of a tract called the Oook place, hereafter to be run off and a plat hereunto attached, situate in the State and district aforesaid, on the waters of Lick creek, Elat creek, and Little Lynches’ creek, bounded on the lands of John L.' Blackman and my own,’ &c.
    “William J. Stogner, plaintiff’s witness, stated that the line was run by a surveyor a few weeks after he had sold to the plaintiff, for the purpose of setting off to the plaintiff the parcel he had bought, and that on that occasion the plaintiff was not present. After this line was run, William J, Stogner sold the balance of the Cook place to James G\ Poor, calling for this line as the boundary on that side. The surveyors appointed in this case ascertained that the parcel conveyed to the plaintiff, if limited by the division line, contains one hundred and fifty-four acres. Both plaintiff and defendant have possessions on their respective parcels, the defendant’s extending up to the line run by Stogner, and her husband having built a house near that line.
    “ The only question was, whether the plaintiff in a contest with another vendee of Stogner of a parcel of the same tract, should be confined to the line run' a few weeks after his purchase. The deed under which he holds provides that the parcel he bought should ‘ hereafter be run off and a plat attached.’ I submitted to the jury, whether this division line was not run with the knowledge of the plaintiff. If he took possession in reference to said line, although the -quantity was less than his deed conveys, he could not hold beyond that line against a subsequent purchaser who bought in reference to it. If the number of acres be important in the identification of his land, and be a part of the description, it appeared to me that he might recover from Stogner for a breach of warranty; but if his parcel was marked by a definite line provided for by his deed and with his knowledge, he could not encroach upon the defendant’s parcel to complete the quantity.”
    The jury found for the defendant.
    The plaintiff appealed, and now moved this Court for a new trial, on the grounds:
    1. Because, it is respectfully submitted, his Honor erred in charging the jury that they might find that the plaintiff acquired title to a less number than one hundred and seventy-eight acres of the land described in the deed executed to him by William J. Stogner, under whom both plaintiff and defendant claimed as purchasers.
    2. Because defendant offered no evidence of title to any portion of the land by deed or otherwise.
    3. Because the purchase of the plaintiff being prior in point of time to that under which defendant claimed, no location could be made of the land inconsistent with the description thereof contained in the deed.
    4. Because, it is submitted, his Honor erred in charging the jury that the plaintiff might be bound by a line run by a surveyor in his absence, and without his knowledge, although unwarranted by the terms of the deed under which he claimed, unless some fraud was designed against him, thereby.
    5. Because a location of the land claimed by the plaintiff in conformity with the description contained in the deed clearly proved the trespass complained of, and the verdict should have been for the plaintiff.
    6. Because a line of marked trees, made without the knowledge or assent of the plaintiff, could not restrict his title to a smaller quantity of the land than that conveyed in the deed.
    
      Moore, for appellant,
    cited Izard vs. Montgomery, 1 N. & McC. 881.
    
      Dawlcins & Wylie, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

In this case, the only question made by the parties is, whether a line run assigning the plaintiff a less quantity than that contained in his deed is binding upon him. It is clear that it is not, unless he had assented to it, and had possession according to it. This is not pretended • but it was supposed that it might be inferred that he knew of the survey and submitted to it. There was no proof of that fact. The most was, that it might be inferred from his living on the land subsequently, while the defendant occupied the other part. This is merely a rash presumption, from which nothing can be inferred against a title.

It was supposed that the deed of the plaintiff was a mere executory contract. But I think it is as clear a title to the land as any which could be executed. The title is to one hundred and seventy-eight acres, being the east of a tract called the Cook place. The Cook land is ascertained; it was only necessary to begin at the known corner and run the outside line, and then run the parallel lines until one hundred and seventy-eight acres are included, and then close the survey, and the plaintiff’s land is located.

The motion for a new trial is granted.

Johnstone, J., concurred.

Motion granted.  