
    Jno. H. Harlan and Margaret Harlan vs. David Brown. John H. Harlan and Margaret Harlan’s Lessees, vs. David Brown.
    
    (E. S.) June 1845.
    Whero a will authorized an executor to sell tho residue of the testator’s real and personal estato within two years from his decease, a sale made within the two years is valid, though the conveyance to the purchaser was not executed until after that period, and parol evidence is admissible to show the time of sale.
    The act of 1831, ch. 315, sec. 10, does not relato to sales of real property, made boforo that statute went into operation.
    it is for tho court to decide on the admissibility of evidence, but the compara, tive value, or weight of testimony, is for the consideration of the jury.
    The variation of the compass, and the degree of it, are questions of fact, and upon evidence affecting the degree of variation, it is not for the court to say, that the ovidence offered by one party, is better than that offered by tho other, to guide the jury in determining whether any, or what allowance shall be made for such variation.
    
      Appeals from Cecil County Court.
    The first appeal was in an action of trespass, q. c.f., brought on the 19th October 1835, by the appellee against the appellants, for a trespass upon a tract of land called “Dividing.” Upon the motion of both parties, a warrant of re-survey was issued, and the defendants pleaded non cul. The jury found a verdict for the plaintiff David Brown.
    
    1st Exception. At the trial of the cause, the plaintiff offered in evidence a patent for the tract called “Dividing,” dated 17th May 1695, to Mathias Van Bibber, and after other conveyances, the will of John Dickson, which contained the following clause:
    
      “Item.' — It is my will, that the rest and residue of my real and personal property, shall be sold by my executor, and that my real property be sold within two years from my decease, and to be rented or farmed on shares by my executor, until a sale is made of the said real property, and I hereby empower my executor, to make a good and sufficient deed to the purchaser of the said real estate.”
    This will, dated 23rd January 1830, upon which letters testamentary were granted the 6th May following, appointed Samuel Rowland executor.
    The plaintiff then proved, that John Dickson died seized of that part of “Dividing,” conveyed to him by James Miller, and the deed from Samuel Rowland to Amos Henshaw, and the plaintiff Brown, of the 19th March 1833, reciting a sale by the said executor, in execution of the trust reposed in him on the 25th November 1831, of his testator’s part of “Dividing,” to the said Henshaw and Brown for said part.
    The plaintiff then offered to prove by parol testimony, that the said sale was made by said executor in November 1830, and within two years of the death of Dickson, his testator, and that possession of the said land, was given under said sale within that period; and also gave in evidence a deed of partition, between himself and Henshaw, dated the 19th March 1833.
    
      The plaintiff also offered evidence to prove, that the alleged trespass is within the lines of the patent of “Dividing.” And within the lines of the deed from James Miller to John Dickson; and that the deed from S. Rowland to A. Henshaw, and the plaintiff, is for the same land as mentioned in the deed from Miller to Dickson, and that the alleged trespass is upon the land conveyed to the plaintiff', by the deed of partition between A. Henshaw and the plaintiff. It was admitted, that the several deeds above mentioned, were executed, acknowledged and recorded according to the formalities required by law7 to pass real estate, and that the will of John Dickson was also duly executed, so as to pass real estate.
    The defendant objected to the admission of the said parol testimony, in relation to the time of sale made by the said Rowland, but the court, (Hopper and Eccleston, A. J.,) permitted it to go to the jury; the defendant excepted.
    2nd Exception. In addition to the matters stated in the first bill of exceptions, the defendant prayed the court to instruct the jury, that the deed offered by the plaintiff, from Samuel Rowland to the plaintiff, and Amos Henshaw, was no evidence of title in the plaintiff, unless they should further believe, from the testimony, that it was executed within two years from the death of the said Dickson, which instruction the court refused to give; the defendant excepted.
    3rd Exception. In addition to the matters stated in the first and second bills of exceptions, the defendant prayed the court to instruct the jury, that the deed offered by the plaintiff, from Samuel Rowland to the plaintiff and Amos Henshaw, is no evidence of title in the plaintiff, unless they believe, from the testimony, that the sale by the said Rowland has been confirmed by the Orphans court of Cecil county, and notice of the time, place, terms and manner thereof, given according to lawr, which instruction the court refused to give; the defendant excepted.
    The second appeal was taken in an action of ejectment, brought on the 6th March 1836, by the appellants against the appellee, for two other tracts, viz: “Steel’s Resurveyed,ri 
      and “Belle Ville,” and presented the same questions as those presented by the action of trespass, 2 q. f, in relation to “Dividing;” and also an additional question as to the right to determine the variation of the compass, and which is fully set forth in the opinion of this court. In the second cause, the verdict and judgment was for the appellee.
    
      Harlan and wife prosecuted both appeals.
    The causes were argued before Archer, C. J., Dorsey and Martin, J.
    By Groome and McLean for the appellants, and
    By Otho Scott and Constable for the appellees.
   Martin, J.

delivered the opinion of this court.

The cases of John II. Harlan and Margaret A. Harlan against David Brown, and John H. Harlan and Margaret A. Harlan’s lessees, vs. David Brown, were presented together.

The first case is an action of trespass, quare clausum fregit, the other an ejectment. John H. Harlan and wife, were the plaintiffs below in the action of ejectment, and the defendants in the action of trespass. At the trial of the trespass case» three exceptions were taken by the defendants to the opinions of the court. Three exceptions precisely similar, were taken by the same parties, as plaintiffs in the action of ejectment, and also an additional exception.

We propose to examine these exceptions in the order in which they have been presented.

By the second item of the will of John Dickson, it is provided, that the residue of the real and personal estate of the testator, be sold by his executor within two years from his decease. David Brown claimed under the deed executed by the executor of John Dickson, in conformity with the power conferred on him by the will. It became therefore important for him to prove, that the sale was made within two years from the death of the testator, both, for the purpose of showing, that the authority conferred on the executor, had been properly exercised, and that the sale in question, was not embraced by the 10th section of the act of Assembly of 1831, chap. 315. And it certainly was competent to the party, to establish by parol evidence, as the legal and appropriate mode, the time at which this sale was made. This forms the subject of the first exception, and we think the court were right in admitting the evidence.

Testimony having been received to show, that the sale of the property in dispute had been made by Samuel Rowland to David Drown, within two years from the death of Dickson, the court were asked to instruct the jury, that the deed of Rowland to Brown and Henshaw, was no evidence of title, unless they should further find, that i.t was executed within two years from the death of Dickson. This instruction the court refused to grant, and presents the question raised by the second exception. We concur with the court below, in the opinion expressed by them in this exception, for the plain reason, that the validity of the deed from the executor to the parties claiming under it, depends not on the time when the deed was executed, but when the sale was made; and evidence had been offered, to establish the factum of the sale within the period prescribed by the will. The power of sale conferred on the executor, was, we hold, properly executed by a sale of the property within two years from the death of the testator, although the deed was not executed by him, until after that period had elapsed.

We concur also, with the opinion expressed by the county court in the third exception. There was no law making the validity of the sale by Samuel Rowland, as the executor of Dickson, depend on its confirmation by the orphans court of Cecil county, as supposed by the defendants’ prayer. It was not embraced by the act of Assembly 1831, chap. 315, sec. 10, because the sale was made before that statute went into operation.

It follows from the views thus expressed, that in the case of John H. Harlan and Margaret A. Harlan against David Brown, the judgment must be affirmed.

The only remaining question to be examined, is that presented by the fourth exception, in the case of Harlan's lessees against David Brown. It has already been stated, that the three first exceptions in this case, are similar to that raised in the trespass case, between the same parties. We, of course, concur with the county court in the opinions expressed by them, in those exceptions. B.ut we dissent from the instruction given to the jury, as contained in the fourth exception.

The question involved, depended entirely on the true location of the second line of the tract of land called “Dividing.”

This court, as early as the case of Howland and Cromwell, 1 H. & J. 118, in affirming the opinion of the general court, decided, “that it is the province of the jury to determine the true location of the lands in controversy, from the evidence adduced by the parties, and that it is for the jury to decide, on the justice and propriety of allowing, or not allowing the variation of the compass, and the rate or rule of such allowance, according to the evidence in the cause.” And in Howard vs. Hughes, 3 H. & J. 12, the Court of Appeals say: “It is the acknowledged and exclusive province of the jury, to decide on the variation of the compass, and to make such allowance as corresponds with the proof, and will advance justice. The juries, in fixing the variation of the compass, are not confined to any certain rules, but are governed by the circumstances existing in the case. The juries, in some cases, have refused to make any allowance, in others, they have allowed at the rate of one degree for every twenty years, and in others, they have been influenced by ancient runnings and proof of possessions.”

What then, is the character of the instruction which the court were desired to give in the fourth exception? They were asked to direct the jury, “that if they believed that the boundary, at the end of the first line of ‘Dividing,’ was at the place the defendant had located the same, and that the division fences, between the former and present owners of the land called ‘Dividing,’ and the land called ‘Steele’s,’ and the other adjacent lands, were on the second line of(Dividing ’ as located by the defendants; and should further believe, that in former runnings of said line, in the life time of Stephen Porter, it ran where the defendants now have located it; that then, such facts were better evidence for the jury, to determine what allowance should be made, to correct the variation of the needle in running said line of ‘Dividing,’ than the theory of allowing one degree for every twenty years.” This instruction the court below gave, and in doing so, invaded, we think, the province of the jury.

It is for the court to decide on the admissibility of evidence; but the comparative value, or weight of testimony, is a question for the consideration of the jury, and it was for that tribunal, and not the court, to determine, whether the facts relied on by the defendants, were better evidence to guide them, in correcting the variation of the compass, than the rule sometimes adopted, of allowing one degree for every twenty years. The doctrine announced by the Court of Appeals, in the cases referred to, is, that whether any allowance is to be made for the variation of the compass, and if so, the rule or law by which that allowance is to be ascertained, is a question of fact for the determination of the jury, upon all the circumstances of the case. The judgment of the county court, in the case of John H. Harlan, and Margaret Jl. Harlan’s lessees, against David Brown, is therefore reversed, and a procedendo awarded.

JUDGMENT AFFIRMED IN ONE CASE, AND REVERSED, WITH A PROCEDENDO IN THE OTHER.  