
    Samuel Davis and Others versus Josiah C. Rainsford.
    The general rule, that known monuments referred to in the description of land in a conveyance are to govern in the construction, rather than the courses, distances, or computed contents mentioned in such description, is subject to exceptions, as where an adherence to the rule would be plainly absurd.
    Where lines are laid down on a map or plan, and are referred to in a conveyance of land, the courses, &c. on such plan are as much to be regarded as the true description of the land, as if they were expressly recited in the deed.
    This was an action of trespass, alleged to have been committed by the defendant' on the plaintiffs’ tenement in Boston. Trial upon the general issue.
    The defendant set up a title to the land, upon which that part of the tenement stood where the trespass was committed. It being admitted that the plaintiffs were in possession of the piece of land in dispute, the defendant read in evidence two deeds; one from the plaintiff Davis, bearing date February 17th, 1813, and the other from John Wells, of the same date, to one Caleb Hiorns; each deed conveying an undivided moiety of a certain parcel of land, which included the piece in dispute. It was admitted that Hiorns died seised of the premises, which he gave by will to his widow, Sarah H., whom the defendant afterwards married.
    * The plaintiffs, to rebut this evidence, read a deed [ # 208 J from the said Sarah H. to them, bearing date the 11th of July, 1817, in which she purported to convey to them a certain piece of land, “ containing between 19 and 20 square feet, or thereabout, lying between my estate in Marlborough street, the estate of Davis &f Brown at the corner of Marlborough and Milk streets, and the estate of said Davis, Brown, fy Williams, and bounded as follows, viz., northwestwardly on the line of the estate of Davis 8f Brown, beginning at the southeastwardly corner of their store, and running on the wall of the store northeastwardly one foot and three inches; thence running southeastwardly on the line of the estate of Davis, Brown, 8f Williams, where they are now building a store, six feet, ten inches; thence running southwestwardly, on the line last mentioned, f< ir feet, four inches; thence northwardly and westwardly seven feet eight inches, to the corner of Davis Brown’s store, the place of beginning. It is understood that the wall of the store, which said Davis, Brown, Sf Williams, are now building on their lot herein mentioned, is to be placed exactly on the line last described herein ; and I give them the liberty of placing and maintaining a coving on said piece of wall over my land, and of opening and forever keeping windows in the same wall. In the sketch on the back of this deed, the piece of land hereby conveyed is represented and marked A.” The plaintiffs also read in evidence a deed from themselves to Sarah Hiorns, bearing the same date with the preceding one, of a piece of land given in exchange for the piece above described.
    The defendant then offered to prove that the line of the estate of the said Davis, Brown, If Williams, was a well-known line fixed by monuments ; and that the same was three feet, six inches, northeastwardly from the point of beginning, instead of one foot, three inches; and he further offered to prove that, taking the lines of their estate, mentioned in the said deed, as two of the [ * 209 ] boundaries of the * piece of land intended to be conveyed by the deed, then the place where the trespass was committed was the soil and freehold of the defendant. But the judge did not permit the testimony to be given; considering, at the time, that the defendant was concluded by the measures mentioned in the deed, and by the sketch on the back of it, without regard to the actual lines of the estate of Davis, Brown, If Williams,
    
    The defendant also offered to prove that the sketch on the back of the deed was incorrect and defective, and not properly describing the premises marked out. But the judge did not permit him to go into the evidence.
    The defendant also, to avoid the deed on account of fraud, offered to prove that the bargain, actually made with Mrs. Hiorns, by the plaintiffs, was for a piece of land to be bounded on two sides by the lines of the estate of Davis, Brown, 8f Williams; that no windows were to be opened in the building about to be erected by them; that a sketch was made of the piece of land intended to be conveyed, according to the true lines and measure thereof; and that Mrs. H. being a person wholly unskilled in business, one Lewis, a friend of hers, who was conversant with the actual bargain, was to examine the deed, approve of it, and be present when she should be called upon to execute it; and he offered further to prove that the deed, as it was executed, was prepared contrary to the contract, both as to the piece of land intended to be conveyed, and the privileges ; that the same was not exhibited to Lewis, nor was he called in to explain it to Mrs. H., and to be present at the execution thereof. But as it was not suggested that the deed was falsely read to her, or that she was improperly urged to execute it, the judge did not permit the defendant to introduce the evidence; and the jury, under the direction of the judge, gave their verdict for the plaintiffs.
    If the judge’s construction of the deed was incorrect, or if the evidence offered, or any part of it, was improperly * rejected, a new trial was to be had; otherwise judgment [ * 210 ] was to be rendered on the verdict.
    
      Prescott and Townsend, for the plaintiffs.
    
      Webster and Hubbard, for the defendant.
   Wilde, J.,

delivered the opinion of the Court.

No rule of law can be more firmly established than the one relied on in the defence of this action. Whenever, in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern; although neither courses, nor distances, nor the computed contents, correspond with such boundaries. This has been long regarded as one of the fundamental rules in the construction of deeds. It is not, however, inflexible, but, like other rules of law, it must sometimes yield to exceptions. These are to be made in cases in which the reason of the rule or principle fails. Cessante ratione legis, cessat ipse lex. On this ground we are of opinion that the rule referred to is not applicable to this case.

The only reason given, or which can be given, why monuments are to control the courses and distances in a deed, is that the former are less liable to mistakes. If, then, it appears that no mistake can reasonably be supposed to have been made in this case, no reason remains for the application of the rule. Now it seems to me impossible that such a mistake in the measure, as is supposed by the defendant, could have been made. The first line, according to the deed, is to extend only one foot and three inches. It was measured, without doubt, by a common rule or scale. Who then can believe that the line, actually measured, was in fact three feet and six inches; and that, in measuring a line so very short, a mistake was made of two feet and three inches! Such a supposition, if not altogether impossible, is, at least, in the highest degree improbable. That no mistake was made in measuring the first line, appears by reference to the sketch or diagram on the back of the deed; for if the supposed * mistake had been made, the form of the [ * 211 ] diagram must have.been changed.

It may be safely inferred from these considerations, that no mistake has been made in the admeasurement, and that it truly describes the land intended to be conveyed. To this admeasurement we are bound to adhere, in order to effectuate the intention of the contracting parties; unless we may infer, as some of the Court think we may, that it was intended by the parties that the land conveyed should extend northwardly, as far as the line of the land of Davis, Drown, Williams; although thereby a few more feet of land might be included than was contained in the actual location. But if this construction of the deed be admitted, it will not have the effect contended for by the defendant; it will not disturb the plaintiffs’ southwardly line. The land actually located by the parties will pass by the deed, whether the northwardly line be extended beyond such location or not.

When lines are laid down on a map or plan, and are referred to in a deed, the courses, distances, and other particulars appearing on such plan, are to be as much regarded as the true description of the land conveyed, as they would be, if expressly recited in the deed. This is a familiar rule of construction in all those cases, wherein no other description is given in the title-deeds, than the number of the lot on a surveyor’s plan of a township or other large tract of land.

By applying this rule to the case at bar, the southwardly line, laid down on the plan, must be considered as the boundary of the lot on that side; as much so as the line of the lot of Davis, Brown, ¡f Williams, is on the northwardly side. And it is obvious that we cannot adopt the defendant’s construction, without departing from the course of the southwardly line, as laid down on the plan.

But there is another consideration, which alone appears to me sufficient to settle this cause. At the time the land [*212 ] * in question was conveyed to the plaintiffs, they were about erecting a store; and it was stipulated in the deed, that the southwardly wall of the store should be placed exactly on the line last mentioned in the description of the land conveyed. The store was accordingly erected, and the southwardly wall was placed as it now stands, in conformity to the admeasurement and to the plan, no objection being then made to its position by the grantor. This wall, when built, was a monument; and it was referred to in the deed, although it was not at that time erected. This part of the case is similar to the case of Makepeace vs. Bancroft , excepting that the wall in that case did not exactly coincide with the line, as described in the deed; and in the case before us it does.

Upon no view of this case, then, ought the defendant’s motion for a new trial to prevail; and judgment must be entered according to the verdict. 
      
       14 Mass. Rep. 469.
     