
    Jacob Hare v. The Lessee of Origin Harris.
    When a deed calls for natural objects, and an older surveyed line, under the mistaken supposition that they correspond, if it turn out that they do not correspond, and the elder line can only be found by ' compass and chain, while the natural objects are clearly identified, the latter must govern.
    This is a writ of error to the Supreme Court of Franklin county, returnable in bank.
    *The original case was in ejectment, and was tried at tho December term, 1844, of the Supreme Court in Franklin county, and a judgment rendered for the plaintiff. To reverse this judgment, this suit is brought. During the trial a bill of exceptions was taken, which discloses tho whole facts of the case, and is as follows:
    Be it remembered, that on the trial of this case in the Supreme Court of tho State of Ohio, in and for Franklin county, at the December term thereof, a. d. 1844, the plaintiff, to maintain tho issue upon his part, gave the following evidence, to wit:
    1. A deed from John Falkner to Jacob Hare, dated March 2, ISIS, the description wherein is as follows:
    “A certain tract of land situated in township 5, range 22, and section 39 of the refugee tract, so called, in the county of Franklin aforesaid, containing fifty (50) acres, and bounded as follows, to wit: Beginning 100 polos south of the northwest corner of said section No. 39, in the west line of said section ; thence south 50 poles with said line; thence east 160 poles; thence north 50 poles; thence west 160 poles, to the place of beginning.”
    2. A deed from. Edward Livingstone, administrator of John Falkner to Jonathan Tipton, dated March 1, 1823, the description wherein is as follows: “ JBoing part of section 39, township 5, range 22, refugee tract, beginning at Jacob Hare’s southwest corner to two beeches, a red oak and sugar trees, in the west boundary of said half section; thence south with the section line 113 poles, to two white oaks and a beech northwest corner of the widow’s third part; thence east with the north boundary 160 poles, to a stake in the half-section line; thence north with the said line 113 poles to a white oak, to Hare’s southwest corner; thence with Hare’s line 160 poles to the beginning — containing 113 acres, be the same more or less.” 4
    3. A deed from said Jonathan Tipton and wife, to James ^Harris, dated February 21, 1831, the description wherein is as follows, to wit: “Part of tho west half section 26, in township 5, range 22, of the Eofugee Tract, so called, bounded as follows, to wit: ‘ Beginning at a small dogwood, beech, and white ash, southwest corner, to said James Harris’ tract of 75 acres; running from thence west 53 poles and 20 links, to two white oaks and a beech in tho section line; thence north with said line 113 poles to two beeches, a red oak and sugar; thence 53 poles and 20 links, to two small white oaks and a beech ; thence south 113 poles, to the beginning, containing 38J acres, more or less.’ ”
    4. Jonathan Tipton to Bichard Holmes, dated November 2, A. d. 1820, the description wherein is as follows: “Part of section 39, Township 5, range 22, in the refugee tract, so called at a white oak, Jacob Hare’s southeast corner; thence south 113 perches, to a stake in the half-section line; thence west 106 2-10 perches, to a post; thence north 113 perches, to a post in Jacob Hare’s south line; thence east along said lino 106 2-10 perches, to the beginning ; containing 75 acres, more or less.”
    5. Bichard Holmes and wife to Harvey Adams, dated April 10, a. D. 1826; the description is the same as in the above deed.
    6. Harvey Adams and wife to James Harris, dated February 14, A. n. 1828, tho description wherein is as follows: “Beginning at two small white oaks, and a beech on the south boundary of Jacob Hare’s tract, and northeast corner of Jonathan Tipton’s tract; running from thence with said Haro’s line east 106 poles and 5 links to a white oak, southeast corner of J. Hare’s tract; thence south 113 poles to a post; thence west 106 poles and 5 links to a small dogwood, a beech, and white ash, southeast corner to said Tipton’s tract; thence north with his line 113 poles to the beginning, containing 75 acres, more or less, being part of lot No. 39, the west half of section 26, in township 5, of range 22, in the refugee tract, so called.”
    *7. James Harris to Origen Harris, dated May 1, A. d. 1839, the description wherein is as follows: “In the county of Franklin, State of Ohio, on the west half of section 26, township 5, and range 22, in the refugee lands, to wit: 50 acres to be taken off the north end of a tract of 113J acres, which the said James Harris holds by two deeds; the one from Harvey Adams and wife for 75 acres, recorded in book 9, page 318; and the other from Jonathan Tipton and wife for 38J acres recorded in the same book, page 212. ' Now, the 50 acres hereby conveyed, are to be taken off the north end of the 113-J acres by a direct line parallel with the side lines thereof.”
    It was admitted that both parties claimed under John Falkner, as the common source of title.
    A plat which is hereto annexed was also given in evidence, and it was proved that the land in controversy is the strip between the land marked on said plat as “ Hare’s,” and the 'tract marked “ Harris’,” being two rods and fourteen poles in width.
    It was proved also that the stakes called for at Hare’s corners were not to bo found.
    It was also proved that the distances called for in Hare’s line from 1 to 2, and from 4 to 3, would terminate at the points 2 and 3.
    It was also proved that the corner trees of the tract marked Harris’ land, at A, C, F, and D, and the marked lines from A to C, are still found, and clearly identified.
    It was proved further that in running out said tract marked “Harris’” on the plat, by the said administrator of Falkner, With a view to the conveyance thereof to the said Tipton, the lines were run, and the corners made and marked, as represented in the said plat, and the intent was to join said Hare’s line and land, and that no line was intended north of said corner trees at A and C. It was further proved that the lines of said several tracts, as represented on the plat, are correctly laid down.
    And it was further proved that said Hare, about nine years ago, built a fence on the said line from A to C, which is *still standing thereon ; and that, previous to that time, no fence had been erected by any one on said line.
    The point near C, a white oak, is about two rods from the section line. One of the marked trees at A, is some short distance from the others, and west of the section.
    It' was also proved that the object of the calls was to join Harris’ 50 acre tract, and Hare himself said that he had no claim to any land beyond the 50 acres; and that his beginning corner was 150 poles from the northwest corner of the half section. And no further evidence having been given, the case was submitted to the court, and argued by counsel; and the court were thereupon of an opinion, that the plaintiff was entitled' to recover the premises in dispute, and so found; whereupon the said defendants moved the court for a new trial, upon the ground that the opinion of the court was contrary to the law and the evidence in the case — which motion the court overruled, and therefore the defendant excepted to the opinion of the court, and prayed that his bill of exceptions in that behalf might be allowed, which is accordingly done.
    The plaintiff assigns for error :
    1. That the matters contained in said record are not sufficient in law to maintain said action.
    2. That the opinion and judgment of the court on said case, were contrary to the law and evidence.
    3. That the court erred in overruling the defendant’s motion for a new trial.
    4. That said judgment was given for the lessee of said Harris, when, by the laws of the land, it ought to have been given for the said Jacob Hare.
    
      
      
    
    
      *Swayne & Bates, for plaintiff :
    1. The plaintiff is estopped from denying .that the corner and line described in the dower’s deed to Tipton as Hare’s, are so, and also from claiming i}ny other line. Ho claims under this deed, and is concluded by it. Young v. Buckingham, 5 Ohio, 490.
    
      “ A party tracing his title through a regularly executed deed, is concluded by its recitals." Scott v. Douglas, 7 Ohio, 228, pt. 1; Dougglas v. Scott, 5 Ohio, 194 ; Kinsman’s Lessee v. Loomis and Wood, 11 Ohio, 478; McChesney’s Lessee v. Wainright, 5 Ohio, 455; Com. Dig., Estoppel, 77, a 2; 1 Salk. 285; 4 Port. 85; 9 Wend. 289; 17 Mass. 432; 3 Coke, Jr. 352, b; Hart’s Lessee v. Johnson, 6 Ohio, 89 ; 7 Johns. 245.
    2. Course aijd distance must yield to natural or fixed objects. Alshire’s Lessee v. Hulse, 5 Ohio, 535 ; Wright, 170, 576 ; 6 Mass. 131 ; 3 Pick. 401; 9 Conn. 661 ; 4 Mon. 32 ; 6 Wheat. 583 ; Graham v. Adams, 2 Binn. 109 ; Pet. C. C. 496; 3 J. J. Marsh. 420.
    3. If the line 2-3 corresponds with the courses and distances called for in Hare’s deed, it does not with those called for in Tip-ton’s.
    The line A F would still be too short. The plaintiff might, with the same propriety, claim to extend the northern terminus of that line still further, in order to make 113 poles in length, instead of 110J.
    4. The deed to Tipton calls to begin at certain trees at A, “ southwest corner of Jacob Hare's land," and runs thence south. To give the plaintiff what he claims, it would be necessary to disregard his deed and the marked trees at A, and begin at a point two rods and fourteen links further north — a point not called for in the deed, and never marked or designated as a corner. Can this be done ?
    5. Tipton’s deed shows that the line for which we contend, *had been run, marked, and established as Hare's, before he bought. It was then notorious, and is recognized in his deed as Hare’s. His land was run off accordingly. This shows that it was the intention and understanding of the parties, that Tipton’s land should extend north to that line, and no further. ■ The same corners and line are recognized as Hare’s, in other deeds, in the plaintiff’s claim to the title.
    Upon what "ground, then, of justice or law, can the plaintiff now claim to establish the new line for which he contends ?
    
      G. Swan, for defendant in error :
    It appeal’s to us that every principle of justice and law requires the call for the trees to be rejected — not the corners of Haro’s line. 'To establish the calls for the trees, and reject those of Hare’s corner, would bo: 1. To make calls of record to yield to those not of record. 2. To make the less certain prevail over tho more certain. 3. To make three distinct calls yield to two; for, if Hare’s two shall bo rejected, of necessity the call to run with his line must also be rejected.
    But the law is settled that, where two calls equally fit two objects — the one of record, the other not — those of record shall govern. Mosely v. Caldwell, 1 Bibb, 86 ; 2 Wheat. 321; 7 Wheat. 10.
    The defendant is not estopped by anything contained in his ■deed. The authorities cited do not sustain tho proposition. A •survey made by a sworn officer, and recorded, does not create an ■estoppel; much less a mere private survey. Blake v. Dougherty, 5 Wheat. 359; Read v. Longford, 3 J. J. Marsh. 420 ; Baker v. Talbot, 6 Mon. 182 ; 2 Marsh. 185 ; 4 Bibb, 399; McNiel v. Dickson, 1 Marsh. 366; Dorr v. Batts, 4 Bibb, 422.
   Birchard, J.

The record presents a question of boundary, and the several assignments of error may be reduced to a simple ^question : Did the court, upon the evidence, render tho proper judgment ? It is apparent, from the bill of exceptions, that ■the intention of Falkner’s administrators, under whom Harris claimed title, was to convey all the land up to Hare’s land. The ■deed, however, under which tho lessee claimed, gives this description of the land : Beginning at Jacob Hare’s southwest corner, to two beeches, a red oak, and sugar trees, in the west boundary of •said half-section, thence south with the section line 113 poles to two whito'oaks and a beech, northwest corner of tho widow’s third part; thence east with the north boundary 160 poles to a stake in the half-section line ; thence north with the said line 113 polos, to a white oak to Hare's southeast corner; thence with Hare's line to the place of beginning.”

The two beeches, red oak, and sugar tree are found to be two rods and fourteen-hundredths from Hare’s southwest corner, and are ■clearly identified, while that corner of Hare's is only to be found by course and distance.

The white oak called for as being at Hare’s southeast corner is also the same distance from the corner, which can only be found by course and distance, and the white oak is now found and identified. The line actually run between the white oak and the two beeches, red oak, and sugar tree, is found to be two rods and fourteen-hundredths from Hare’s line, and to give to Harris two rods less than the length of the lines called for in the deed ; while if Hare’s line is brought down to it, his side 'lines are that much, longer than called for by his deed.

Upon the circuit, I thought the lessee of Harris entitled to this small strip of land, and the chief judge, with some hesitancy, finally concurred with me. A re-examination, with more time to deliberate, has satisfied me of my error, and it is with pleasure that it is in my power to aid in correcting it.

The plaintiff in ejectment can only recover upon the strength of his own title. The weakness of his adversary’s title is no aid to him. The deed here in question called for natural objects and a marked line, also describing them as Haro’s corners and ^Hare’s line. The natural objects and the marked line are found — they are identified; while Hare’s lines and corner have nothing certain by which they can be identified, and their position, as found by course and distance, are such as makes it certain that Falkner’s administrators, when marking the corners and lines of Harris, were mistaken in supposing the line of Hare to correspond. Under the rules of construction, well settled and applicable to a case like this, it is very certain that Harris takes, by his grant, nothing beyond the line so defined; that the less certain ■calls for course and distance, or a call for a recorded or older line, only to be found by a resort to a compass and chain, must yield to calls for natural and fixed objects, which are certain and identitified. See the authorities cited by plaintiff’s counsel.

Judgment reversed.  