
    Yarborough vs. Abernathy.
    Practice. New trial — preponderance. The court of errors will set aside ver diets approved by the circuit courts, in those cases only, vvhrre the weight of the testimony against the verdict greatly preponderates.
    BOUNDARY. Remarking, principle of the estoppel of — whether it hinds feme co-vevt'l Where the original boundaries of piivate possessions have been destroyed, or are unknown, or not well ascertained, a survey made by the owner in reasonable conformity with the calls of his tille deeds or papers, is held to be an asceitainmentof the very land owned by him, and to conclude him upon principles of public policy, and for the security and repose of others. Qusere, whether the reason of the doctrine applies tofemes covert,?
    Same. Same — ignorance of the true line necessary io give effect to remarking. If the parties know where the true line is, and by agreement, make another,— this would 1)0 a perol transfer of the land, and would be void by the statute of frauds.
    The annexed diagram is a connected representation of six tracts of land of 5000 acres each, granted by the State of North Carolina to the persons whose names are inscribed in them respectively. They lie in Ciles county, on Richland creek. The controversy in this case arose in reference to the southern boundary of the tract granted to Doherty, and the northern boundary of that granted to Charles Polk. The' grants for both tracts were issued on the 10th of July, 1788. That to Doherty was numbered 52, and that to Polk, 64.
    A white oak, marked W. C., was called for in Doherty’s grant, as the south-west and beginning corner of his tract. A stake was called for as "the south-eastern corner.
    The north-east and north-west corners of Polk’s tract were designated in his grant by stakes.
    Doherty died about the year 1800, at his residence in North Carolina, and left two daughters, Frances W., born June 8, 1786, and Helen M., born August 24, 1788, his only children and heirs at law. Frances married one Bond, in 1807, and Helen, David Yarborough, in the same year.
    William P. Anderson and John Strother were the agents of Doherty’s heirs; and by their order George Breckenridge resurveyed and marked the Doherty tract about the 16th of February, 1S09. In making this survey, he began at the white oak, W. C., and marked the lines and corner round to the south-east corner, which he designated by a stake, hickory, and two sugar trees at D. He then deferred the marking of the south boundary, from D to W. C. till he should ascertain the dividing line between Charles Polk and Lewis. In doing this, he ran from Charles Polk’s southwest corner, an ash and hackberry, north, the distance called for in his grant, and marked for his north-west corner an ash, at A. He then resumed the survey of Doherty’s grant, not at D, but by running and marking from the beginning, W.C. to D, in doing which, he crossed the line which he had just run as Polk’s western boundary, south of the ash at A, which he had marked as his north-west corner. Thus Do-herty’s tract was made to interfere with Charles Polk’s, Elijah Robertson’s and Martin Armstrong’s tracts in the manner represented by the dotted lines.
    
      
    
    Polk’s tract was conveyed by deed datecl October 8, 1808, duly proved and registered, to several persons, who, in 1809 or 1810, conveyed the parcels marked 3, 4, 5, 6, f, 8, to Wilkinson, Tarpley, Abernathy, Scales, Mitchell and Harwell, who immediately took possession, which has been continued ever since.
    In 1816 or 1817, Bond, who had married Frances W. Doherty, died in Maury county, where he settled with his wife in 1808; and on the 6th of March, 1821, she married James B. Porter. On the 18th of September, 1830, Yar-borough and his wife joined in a deed, conveying to Abernathy, the owner of No. 5, the tract marked 1; and to Mitchell, the owner of No. 7, the tract marked 2; thus recognizing the line, run from the ash marked by Breckeridge as Charles Polk’s north-west corner, as the true northern boundary of that survey, and of course, as the southern boundary of the Doherty tract.
    The line from L to B, had been reputed to be the north boundary of Rebertson’s tract, from 1816 to 1821, when an agent of Robertson marked a line considerable south of it, as Robertson’s north boundary; and then Robert McNairy, who owned a part of Armstrong’s tract, entered as vacant the land lying between the new and the old lines.
    Upon the supposition that the dotted lines were the real boundary of Doherty’s survey, and to recover the lands held under Polk’s title, and Robertson’s and Armstrong’s titles north and west of those lines, an action of ejectment was commenced on the 20th of December, 1837. The demises were laid in the names of Porter and wife, Yarborough and wife, and Mary W. Burke; and notice of the action was served on Mr. and Mrs. John H. McNairy, Elizabeth Dickson, Alexander Tarpley, Henry Scales, Charles C. Abernathy, Elizabeth Mitchell, Rebecca Harwell, and Allen Wilkinson. At February Term, 1838, they were admitted to defend instead of the casual ejector, upon the common rule.
    The cause was tried at June Term, 1838, before Judge Anderson, sitting instead of Judge Dillahuntí, and a; jury of Giles.
    Both sides adduced proof as to the true position of the disputed boundary. But the defendants relied also upon the statute of limitations, they having had uninterrupted possession from 1809 or 1810, under their deeds, which covers’ tbe ]anc]s nortb 0f the plaintiff’s southern boundary as claimed by^them. And they also relied upon the supposed estoppel arising from Yarborough and wife having treated as the real boundary of their own tract, the line claimed by the defendants as Polk’s northern boundary.
    His Honor charged the jury, that they would have to balance and weigh the evidence applicable to each line, and give their verdict according to its preponderance; that if either of the lessors of the plaintiff was a feme covert, when the defendants took possession, and has so continued ever since, she would not be bound by the statute of limitations; but if one of the lessors, though covert when the possession was taken by the defendants, became discovert at any time since that possession was taken, the statute would commence running as to her moiety, and would bar her, though she again became covert before the seven years had elapsed; that it was unnecessary, in this suit, to determine any but the southern boundary of the Doherty survey, and if they looked to the evidence as to any other line, it must lie with a view to determine that line, that if the defendants had had twenty years possession, though in some cases, that would justify a presumption that they had a title to it; yet this presumption would not arise against claimants who were femes covert, or infants, a part or ail of the time.
    
    The jury found a verdict for the defendants. The plaintiffs moved for a new trial, which being refused, they appealed in error.
    Wright, for the plaintiff,
    as to the validity and effect of the remarking by Breckeuridge, cited Williams vs. Buchanan, 2 Ten. Rep. 278; Garner Dickson vs. Morris, 1 Yer. 62; Houston vs. Pilloio, 1 Yer. 481; Davis vs. Smith fy Tapley, 1 Yer. 496; Singleton vs. Whiteside, 5 Yer. 40; Houston vs. Matthews, 1 Yer. 116; Gilchrist vs. McGee, 9 Yer. 455; Michol vs. Lytle, 4 Yer. 456; Profit vs. Williams, 1 Yer. S9.
    But none of these cases, he said, decided what effect the doctrine of remarking would have upon the rights of a feme covert. The real and only question was, can the lands of a feme covert be lost through any laches of the husband, or can her estate be divested in any mode except by her privy examination, upon a deed duly taken? To maintain the negative, he cited, White vs. Cook Wife, 15 Johns. R. 483, 546, 547, 548, 550; 17 Johns. R. 167; Lassiter fy Wife vs. Turner, 1 Yer, 429; Watson vs. Watson, 5 Conn. R. 77; act of 1723, c 4, § 6.
    2. As to the power of a party, laboring under a disability which prevents the operation of the statute of limitations, to bring a suit either during the continuance, or after the removal of the disability, he cited Watson vs. Watson, 5 Conn. R. 77; Angelí on Lira. 218; Chandler vs. Villett, 2 Saunders, 121a, note 5; acts of 1715, 1797 and 1819.
    These authorities, he contended, proved that no running of the lines of a feme covert’s land, or acquiescence in, or recognition of such lines, by deeds in which she joined her husband, or otherwise would bar her suit to recover her land, which she had not actually conveyed away in the manner prescribed by law.
    3. He said that a grant is never presumed but against those who are capable of laches, which a feme covert is not. An-gelí on Lim.; 3 Starkie’s Ev. 1203 note 4; Id. 1216; An-gelí on Adverse Enjoyment, 65, 70, 76. The laches of him who has a mere temporary interest cannot prejudice the owner of the inheritance; and in such case, a deed, grant, &c. will not be presumed from adverse enjoyment, 3 Star-kie’s Ev. 1216, 1218; 2 Saund. 175d; Angelí on Adv> Enj. 116.
    And finally he insisted that if there was no error in the charge of the judge, still there ought to have been a new trial, because the verdict was against evidence.
    Field & Combs, for the defendants,
    insisted, that his Honor, the circuit judge had fairly placed the facts of boundary before the jury, and charged nothing to the prejudice of the plaintiffs; that the jury having found the line claimed by the defendants to be the true line, the court would not disturb their verdict, unless there was a decided preponderance of evidence against it; that though there was evidence in favor of both lines, yet so far from there being a clear preponderance against the verdict, the testimony clearly sup» p01,tec| an(j consequently no new trial would be granted an(j (ftgy cited to this point, Grubb vs. McClatchy, 4 Yer. 444; Gibson vs. Gibson, 9 Yer. 330; Id. 27]; 4 Yer. 323; 4 Yer. 152-3, 505; 3 Yer, 107.
    January 19.
    2. As to the point of the disability of the femes covert, they observed, that the defendants had been in possession since 1809; that Mrs. Porter, one of the lessors of the plaintiff, was a feme sole from 1815 or 1817 to 1821, and of full age, and was therefore clearly bound by the statute.
    3. That the boundary was as claimed by the defendants was maintained, they said as well by reputation, 4 Yerger, 4S6; 3 Starkie, 1030; by the remarking and recognition of the parties, 1 Yer. 116, 496; 5 Yer. 34; 8 Yer. 406; 2 Yer. 290; 1 Tennessee R. 509; 9 Yer. 455; as by lapse of time and acquiescence. 7 Wheaton, 59; 12 Ves. 266, 267, 252; 5 Johns. C. R. 550; 1 Hayw. 469; 2 Hayw, 128, 147; 2 Ten. Rep. 312, 151; Cowper, 100, 102.
   Reese, J.

delivered the opinion of the court,

It is contended for the plaintiffs that the circuit court erred in refusing to grant a new trial, upon the ground that the verdict is not well sustained by the evidence.

This case, therefore, is only another added to the long list of cases in which we have been constrained to repeat, that this court neither can, nor ought to weigh and balance the testimony with a view to disturb the verdict of the jury and the judgment of the circuit court. We adhere to and again announce the principle, as familiar from frequent repetition, as it is obviously correct, that we will set aside verdicts approved by the circuit court, in those cases only, where the weight of the testimony against the verdict greatly preponderates. In the present case, however, we are of opinion, that the testimony well warranted the verdict.

The defendants had been for many years in possession of the land in dispute, up to the line claimed by them. It had, to that line, been in their actual cultivation; that line had for many years been reputed in the neighborhood, and also, by those whose interests were affected by it, as the true line dividing the grants under which the plaintiff’s and defendants claim. The plaintiffs and their agents had long so recognized it, and had for more than twenty years acquiesced in the possession and cultivation by the defendants and others up to that line; they had caused surveys of small tracts to be made with a view to a sale, which were bounded upon that line, as their southern boundary; and finally, they sold and conveyed those tracts to the defendants themselves, and in their deeds called for the northern boundary of the defendants, which they described as their own southern boundary.

Some of the plaintiffs are femes covert, and in respect to their attitude and rights, as affected by the above facts and circumstances, the circuit court charged the jury, that they were not barred by the statute of limitations; that they were not to be affected by acquiescence, as if they had been soZe; that they were not concluded or estopped by the re-marking surveys of their husbands, or the agents of their husbands, nor by joining them in deeds of conveyance, which described and acknowledged the line in question, as their southern boundary; but that the jury were to regard those facts and circumstances as evidence only of where the true line was to be found.

Whatever error may exist in reference to some of these propositions is not error against the plaintiffs, or error on account of which they should be heard here, or elsewhere to complain.

It is argued that a feme covert cannot convey land, except by deed acknowledged according to the statutes, and cannot, therefore, be affected by the re-marking survey of her husband. We answer, neither can the husband transmit title to land except by deed. The doctrine of remarking does not, in either case, proceed upon the idea of transmission of title. It is founded upon the assumption, that where the original lines have been destroyed, or are unknown, or not well ascertained, a survey made by the owner in reasonable conformity to the calls of his title deeds or grants, shall be held and taken to be an ascertainment of the very land owned by him; and such act, in pais, shall, upon principles of public policy, and for the repose and secuiity of others, conclude him.

Whether the grounds of policy and principle upon which this doctrine is founded do, or do not, apply to the interest of femes eoverf, it is not necessary here to determine. For the circuit court decided the question in the negative; and of this, the plaintiffs at all events, cannot complain.

But it is said, that the acquiescence, the recognition of the line, the remarking, and the- conveyances were all made in ignorance of the true line.

We answer, that so far as the doctrine of remarking is concerned, this ignorance of the parties is necessary to give to that doctrine a different operation. Fpr if parties know where the true line is, and by agreement make another, this, would be a parol transfer of the land, and would be void by the statute of frauds, as has been decided by this court. Gilchrist vs. McGee, 9 Yer. 455.

We are of opinion, therefore, that the judgment be af-  