
    
      James H. Jarrot vs. Henry McIlvaine.
    
    As a general rule, where a conveyance of land calls for a certain line as the loundary, the land must be located so as to make that line the boundary; but this rule may be controlled by clear evidence that the parties had actually run another line as the boundary, at or before the execution of the conveyance.
    
      Before Evans, J. at Darlington, Fall Term, 1842.
    This was an action of trespass to try titles.
    Both parties claimed under one Dennis M’Lendon, to whom a grant of 263 acres had been made, in the year 1791. It appeared, also, that a part of the same land had been granted to Arthur Cobb, (one hundred acres,) in the year 1767. The accompanying diagram will explain these grants, and the controversy of the parties.
    
      
    
    
      The whole diagram represents the M’Lendon grant. The part A, extending to the line a b, represents the Cobb grant. The plaintiff claimed under a deed from M’Lendon to M’Neese, for one hundred acres, more or less, bounded on the west by Cobb’s land. The defendant claimed under a deed from M’Lendon to Turner, in 1794, about two years after the deed to M’Neese. This deed describes the land as 163 acres on both sides of 4 Mile Branch, and as all the land granted to M’Lendon, except one hundred acres sold to M’Neese; so that the question was, whether the boundary of the land conveyed to M’Neese, was the line a b, or whether the parties had not in fact made a different line as the boundary between them. It appeared from the evidence, that .in 1819, one Conn, as a surveyor, run the line a b, as the line of Hunter’s land, to whom the land conveyed to M’Neese then belonged. M’llvaine, the defendant, was present and did not object. When the land was run out as Hunter’s estate, some few years before the trial, defendant was present, and contended that the line a b, was not the true line, but it was 10 or 12 yards to the east; but even if the line was run thus, he was still a trespasser. The defendant derived his title thus ; Turner conveyed to M'Call, in 1795, who owned the land until 1811, when he gave or sold it to M’llvaine, who married his daughter. It was proved that!the title deeds of this land were not in the defendant’s possession ; and in this way it was attempted to account for M’llvaine’s apparent acquiescence, when Hunter run a b, as the line between them. It was proved, by two sons of M’Call, that there was a blackjack corner about 200 yards to the east of a, at a point which is designated on the plat as c; from thence there was a line running to the south ; and one of them said the line run to a corner on a branch ; and from some of the plats exhibited, there was a branch to the south of the point c. These witnesses said their father claimed to this line, and one of them said that whilst his father owned the land, he was with his father, Hunter, and Muldrow, at the black-i jack at c.; and it was said among them, to be the corner l of the line between M’Call and Hunter. This line, (if any Jsuch now existed,) was not represented by the surveyors ; nor had any search been made for it. The presiding Judge thought the evidence satisfactory, (though it might admit of doubt,) that a b was the east line of the Cobb grant, and in his charge to the jury assumed that as sufficiently proved ; and in conformity with this, the jury were instructed that the plaintiff had a right to go to that line, unless he was controlled by some higher evidence of location. That the highest evidence of boundary was what had been done on the land ; and where a line had been actually run by the parties, as the boundary line between them, this-would control a call for another tract of land as the boundary ; thus, although in the deed from M’Lendon to M’-Neese, the Cobb land is called for as a boundary, which is found at a b, yet, if they did, in fact, run a line from c, where the M’Calls say there was a line, then this line would be the boundary, although it should afterwards turn out that it was not the line' of the Cobb land, as called for. This is the rule in the location of grants, and no reason exists why it should not apply equally to deeds. That mere acquiescence in a line, or an admission as to the true line,, are not binding on the parties; and that, therefore, M’llvaine’s, acquiescence when Hunter run the line a b, and Hunter’s admission that the corner at c was the corner of the line between him and M’Call, were not binding on them, if the jury were satisfied the true line was elsewhere.
    The jury found for the defendant; thus, in effect, giving him the land as far as the letter c.
    The plaintiff appealed, and now moved for a new trial, on the following grounds:
    1. That the deed of D. M’Lendon to John M’Neese called for the line of the grant to Arthur Cobb, which was clearly proved and located, and the plaintiff was entitled to recover to that line.
    2. Because no other line but the Cobb line could be found by the surveyors, or shown by the defendant.
    3. Because the presiding Judge erroneously charged the jury on the law as follows ; that the boundary called for by M’Lendon’s deed to John M’Neese, must prevail, unless a line has been agreed on by the parties. And although the deed of M’Lendon calls for the line of Cobb’s grant, yet if it is proved that the parties have agreed upon another line, short oí the Cobb line, the plaintiff must be restricted to the line agreed upon, although the agreement was by parol.
    
      G. W. Dargan, for the motion.
    
      Moses, contra.
    Cited 3 M’C. 361. 2 M’C. 293.
   Curia, per

Evans, J.

Assuming, as I did on the circuit, that a b on the plat was the line of the Cobb grant, the plaintiff had a right to locate his land so as to make that line his western boundary. This is the general rule, but it may be controlled by clear evidence that the parties actually run the dividing line at, or before, the execution of the deed, of which long acquiescence and acknowledge-ments would be evidence. If such a line as was proved by the two M’Calls had been found by the surveyors, and the jury were satisfied it was cotemporaneous with the deed to M’Neese, then I think the verdict should be supported; for it is clear that a line actually run will control a boundary called for in a grant, and the same rule should govern in a deed. But parol evidence that such a line had existed, without any search for it, or its location represented on the plat, is too vague and uncertain. A new trial must therefore be had, and the motion is granted.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  