
    *B. Lockwood and others v. Wildman, Mills, and others. Wildman, Mills, and others v. B. Lockwood and others.
    The directors of the fire-lands’ company divided all the lands in the half* million tract granted by the State of Connecticut.
    In construing the proceedings of the directors, their intention is to be gathered from a consideration of their entire records.
    Where doubts exist as to the boundaries of land aparted by the directors, the plats of surveys and field notes referred to in the records may be used as evidence, for the purpose of ascertaining the boundaries established by them.
    When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.
    The township of Portland, containing 4,500 acres, was estimated, in making the partition, to contain but 2,783 acres, and was all disposed of in the three annexations, each having a portion of the base line, in the proportion that its quantity of acres boro to the whole supposed quantity of the entire tract.
    A prior decree, to be available as a bar, must bo plead or relied upon, and set forth in answer, and it must be shown that the same points were in issue in the former suit.
    The statute of limitations must be plead or relied upon, in answer, by way of defense; so also lapse of time.
    Persons residing out of the state, at the commencement of adverse possession, are not barred under twenty-one years after the disability is removed.
    This is a bill and cross-bill in chancery, from Erie county.
    In the bill and the answers to the cross bill, the following facts are set forth:
    In the year 180Ü, the State of Connecticut granted to her citizens, who were sufferers by fire during the- revolutionary war, a half million of acres of land, lying within tho State of Ohio, which was to be taken off what was called the “ Western Connecticut Reserve.” By an act of the legislature of the State of Ohio, ¡massed A. D. 1803, the sufferers wero incorporated under tho name of the “Proprietors of tho half-million acres of land, lying south of Lake Erie, called Sufferers’ Land.” The affairs of this company, by said act, were to be managed by a board of directors, who, among other ^-things, were authorized to locate and survey said half-million acres of land, and make partition of the same among the different claimants.
    On November 1, 1805, Taylor Sherman was appointed by the board of directors an agent to survey the above tract of land, and on the 16th day of December, of the same year, he entered into a contract with John McLane and James Clarke, Jr., to survey, or have surveyed, said tract, who were to begin the survey on the south shore of Lake Erie, 120 miles west of the west line of the State of Pennsylvania, as claimed by her, and from thence south to the 41st degree of north latitude; thence east, on said degree of latitude, so far as to include the half-million acres; and also, to begin at tho first-named point on the south shore of Lake Erie, 120 miles from the Pennsylvania lino, and run easterly along the shore of the lake, taking all the indents of the same, so far that a line run south to the 41st degree of north latitude would make the exact quantity of one half-million acres. Then they were to subdivide the area thus run out into townships, as Sherman might direct.
    Preliminary to any survey being made under this contract, it became necessary for the proprietors of this half-million acres to settle with tho Connecticut Land Company what should be regarded as land and what water in making up the half-million acres, and it was accordingly agreed between the two companies that the waters of Sandusky Bay should not be included. In order to determine “what should be deemed land and what the waters of Sandusky Bay, and what the south shore of Lake Erie,” each company should have an agent on the ground to settle such boundaries. That, in accordance with such an understanding, a survey was made under the inspection of the agents of both companies, by one Amos Spafford, commencing at tho east end of tho fraction, and extending west to within two miles of the outlet of Sandusky Bay, where the traverse terminated. The two companies afterward agreed to continue tho survey, to settle what should be deemed land and what the waters of Sandusky Bay, but it was *never done. McLane and Clarke proceeded under their contract to make a survey of the half-million acres, and among other things, a pretended traverse of the bay. But the whole survey was found to be wrong and inaccurate, which led-the company to cause a new survey of the whole tract to be made; and for this purpose the company, by their agent, Isaac Mills, on March 14, 1808, made an agreement with Almon Ruggles to survey the half-million acres, and especially, to survey off “ the fraction or broken tract or parcels of land on the shore of the lake, that they might be annexed together, so as to make one or more entire townships, and furnish said company with a correct map or chart of said lands,” in which was to be made appear “ all the town lines, streams, or water-courses, together with a traverse of the shore of Lake Erie and Sandusky Bay,” to be completed on October 1,1808.
    Ruggles surveyed the entire grant, run off the same into townships, but made no survey of Sandusky Bay, and made return of his proceedings, together with tho minutes of the survey made by McLane and Clarke of tho south shore of Sandusky Bay, to the board of directors at New Haven, with the following certificate appended to the whole :
    “I hereby certify that the above and foregoing field minutes were taken and made by me on the survey of the land of the Sufferers’ Land Company, in pursuance of my contract with said company, as on record, and are true and correct. But as to tho traverse of the shoro of the lake and Sandusky Bay, which was formerly taken under contract, between the company and John McLane and James Clarke, Jr., I can not certify that said traverse is correct.
    “ Almon Ruggles.
    “ November 7,1808.”
    The board of directors, having no confidence in the traverse of McLane and Clark, did not adopt it as a part of the survey of the company, and entered the following resolution on their records:
    “ That the field minutes of the survey of the lands of the company, made by Almon Ruggles, Esq., in performance of his contract with the company, be approved and recorded at full length in the records of the company.”
    *The traverse was so uncertain that it never was used as a basis of any calculation, either in ascertaining quantity or defining boundary, and has no connection with any other survey on record. Between the north line of township six, in the twenty-third range, and Sandusky Bay, there was a fraction of land, now called Portland township, the same of which no traverse was taken, except that of McLane and Clarke, as before stated, and which fraction, for the want of a correct traverse, was estimated by Ruggles by running a diagonal line on paper from the end of the east to the end of the west leg of the fraction, the former being fifty-three and the latter eighty-two chains in length, which made the exact number of 2,783 acres, thus:
    
      
    
    Ruggles supposed, from his knowledge of the country, that, in some instances the waters of the bay would extend south of this imaginary line, and, in others, that the land would run north of the same, but that, taken in its whole extent, it would form a fair average between land and water. With this information before them the board of directors did so divide off the fraction that each of the three divisions, which were subsequently made, should have whatever land should be north of this diagonal, as an equivalent for whatever bay or marsh might be south of it. Each of the three divisions should have their respective bases on the line of Perkins fixed, and then run the risk of land and water between this basis and the bay. Ruggles, as be was bound by bis contract, made a map of the entire survey, in which he represented the shore as a straight line to agree with the diagonal lino spoken of, and which was the only boundary of the fraction the board had before them at the time of partition.
    *Jessup Wakoman, Isaac Mills, Taylor Sherman, and William Eldridgo were appointed a eommiotoo to adopt some mode to make partition of the grant among different claimants, who, among other things, reported that the twe: ty-third range contained six square townships with a fraction, he one above mentioned between the north line of township six and the shore of Sandusky Bay, which contained, as before stated, 2,783 acres of land; and as sections one and four, in township one, range twenty-four, and section four, in township one, and range twenty-three, were of less value than the average sections of the firo lands, owing to swamp and marshes which existed in the samo» the committee recommended, in order to equalize said sections, as follows: “That to section one, in township number one, twentyfoui’th range, be annexed 1,783 acres off the east end of said fraction of 2,783 acres, between the north end of township number six, in the twenty-third range, and Sandusky Bay. That to section four, township number ono, range twenty-four, be annexed 500 acres of said fraction of 2,783 acres, between the north end of township number six, in the twenty-third range, and Sandusky Bay, next west of the former annexation of 1,783 aeres, and the remaining 500 acres of said fraction of 2,783 acres be annexed to section four, in township number one, in the twenty-third range.” That the sections wore composed mostly of m.arsh, and it was the intention of the hoax’d of directoi'S to equalize them, by appending to them the land on the hay. This report of .the committee was adopted and was made the basis of the partition.
    Some time about the year 1811, one Zálmon Wildman, who, with his brother Seymour, were tenants in common in said sections number one and foux’, in the twenty-fourth range, and their annexations, and also in section three (Isaac Mills being the sole owner of sectioxx foux’, in range twenty-three), having accidentally learned that a part of the above ñ’action was well suited for a town, concealed that fact from his co-tenants, and in the year 1812, filed his ¡xctition for partition of said first-named sections, and their annexations, in the county of Cuyahoga, under which petition partition was made. Under the proceedings in partition a ^travex’se of the bay shore was made, Wildman being present at the time, which traverse was intended to be used as a basis to determine the division from north to south between the several annexations. It was now discovered, for the first time, that the fraction contained about 4,000 acres of good land. This was owing to the fact that it was not known at the time the quantity in the fraction was estimated,, as befox’e stated, that the bay shore, after passing some distance fx'om the east end of the fraction, inclined suddenly to the north, leaving a large tract of land between the diagonal line and the bay.
    
      The Wildmans, being acquainted with the intention of the directors as to the manner in which the fraction was to be divided, and knowing that the first annexation was intended to be located on its proportional basis between the north lino of the township and the diagonal line, and that all land north of said line, if any, was to bo a part of said annexation, without regard to quantity, and so likewise as to the two remaining annexations, so run the lines between the several annexations as, measurably, to carry out the intentions of the directors. Under this partition there was set off to the first annexation 2,300 aeres, about 500 acres moro than its original quantity. To the second annexation there was set off 750 acres, 250 more than its quantity. The Wildmans, under this partition, had set off to themselves 805 acres in the east, or first annexation, which was bounded on the oast by what is familiarly known as the sycamore line, and which was, in fact5 their whole interest, not only in the annexations, but also in the three sections, and was so meant by the committee at the time. In the second or middle annexation, there was set off to the Wild-mans 475 acres, which was their entire interest in section four and its allotted annexation.
    According to this survey all the land cast of the famous sycamore, and 805 acres west of this lino, belonged to the first annexation, which brought the west line of the same to what was called the old white store, a spot near midway between Wayne street and Columbus avenue, on the present site of Sandusky City. The middle annexation extended west of the *last-.mentioned line, 750 acres, and was bounded on a line on the west, run from tho bay shore, south, at or near what is sometimes called Davidson & Root’s slaughter-house, at least sixty rods west of the store of Mr. Townsend. Mills and George Hoadley, who were the owners of the west annexation, found fault with the Wildmans for the manner in which they divided off the fraction ; Mills claiming that the west extended as far east as a point on the bay shore, near the present corner of Columbus avenue, and thence south to the township line. In order to define the extent of his claim, ho drove down a post at the point near the corner of Columbus avenue. The line thus run or claimed by Mills would give him 1,560 acres more than his original quantity of 500 acres. This he claimed by virtue of the term “remainder,” which was applied to the west annexation.
    
      In this controversy, Wildman justified the course he took, upon the ground that the directors had no traverse of the bay shore before them at the time they made partition ; that the quantity in the fraction was estimated by a diagonal line upon paper, and that it was the intention of the board that the fraction should be divided, as has been already explained. The ground covered by the dispute is the samé which now lies between Columbus avenue and McDonough street, being a body of about 750 acres. Kilbourn, who was anxious to close the controversy, in order that the city might be begun, advised a compromise, and under his auspices Wildman, who had before this time purchased out the interest of his brother, agreed to quitclaim the one-half of the disputed territory to Mills and Hoadley. But afterward, Mills and Hoadley, being anxious for an interest in Wildman’s location east of the point on Columbus avenue, and bet%veen that point and the sycamore line, Mills agreed to take the one-fourth of the whole 1,280 acres, set off to Wildman in the two annexations, instead of the one-half of the tract first mentioned as the one in dispute.
    This agreement was finally consummated, and Wildman and his wife, on May 3,1819, released to Mills and Hoadley, the one-fourth of the 1,280 acres, which is described in the release, as follows : “ A certain tract or parcel *of land on the fraction, so called, on Sandusky Bay, in Huron county, and State of Ohio. Said tract contains, in tbe whole, about 1,280 acres more or less, and is the same heretofore set and aparted to me, and my brother Seymour Wildman, on a writ of partition in Cuyahoga county; and for more particular description and boundary of said tract, reference must be had to said partition record. It is the same tract on which the city of Sandusky is located.” By this settlement, the division lines between the several annexations were settled upon by Mills and Wildman, and for twenty-five years were considered fixed and permanent, and were not departed from by either, until within a few years since. Shortly after the above settlement between Mills and Wildman, the former caused what he termed his west annexation, to be run out, and directed those who made the survey, in order to find the east line of the same, to commence at the east corner of Perkins-township, and follow that line to the point or stake where Wildman had fixed the southwest corner of the first annexation, and from thence west to where he had fixed the southwest corner of the middle, and from thence north to the bay shore, at the sapling near the slaughter-house of Davidson & Root.
    This, Mills called the east line of his annexation, which, according to the survey made at the time, contained 1,001 acres. In the year 1815, after Wildman’s partition,William, Eliphalet, and Buckingham Lockwood, and others, filed their petition for the partition of the remainder of the first annexation, Wildman having taken 805 acres off the west end. The committee who made the partition recognized Wildman’s lines of 1812. Owing to the fact that Wildman had his rights in the sections and annexations sot off in one body in the latter, when the Lockwoods, and some of the other tenants in common, came to get their portions of the east, or first annexations, according to the outlines of Wildman’s survey, there was nothing left for some of the co-tenants, and especially for Sam-' nel Cannon, who was a large owner in both annexations. Mills and Wildman, seeing the difficulty which would be likely to grow out of this state *of things, thought it advisable to get in the interest of Cannon, and accordingly set themselves about it, which they called a purchase, to quiet their title to Sandusky City. In 1818, Mills and Wildman contracted to K. Townsend a part of the 1,280 acres set off to Wildman in 1812, coupled with the condition that they could purchase the interest of Cannon in the tract, or, to use the words of the contract, “provided their title to said lands could be quieted.” Mills and Hoadley afterward did purchase out the interest of Samuel Cannon, both in sections 1 and 4, and their respective annexations. Before Mills and Wildman effected this arrangement with Cannon, the latter brought a writ of error to reverse the partition of 1815, and the same was reversed. The Lockwoods then supposed that Cannon’s rights in the first annexation would be located east of the sycamore, which, as Wildman had taken 805 acres off the west end, was already short. This gave rise to a bill in chancery shortly after the proceedings in error the object of which was to limit Wildman and Mills to a proper portion of the first annexation.
    The bill charged that there was a1 largo surplus in the fraction, and that they, Mills and Wildman, had, or threatened to take, possession of the same. The attorney and agent, George Lockwood being the latter, did not know that Mills and Wildman then held what was charged to be surplus as parts of the first and second annexations, and that Wildman, in 1812, had attempted to run the lines dividing the two, according to the intention of the board of directors.
    Milis and "Wildman did not set up any title or claim to unloeated rights east of the sycamore, except that of Samuel Cannon, to the lands undisposed of, and this was now done, although it had been purchased in the first place to “ quiet their title in Sandusky City.” As soon as that decision was made, which virtually decided that the first annexation was not entitled to the surplus, they sought to give it the most extended application, and claimed the entire 1,280 acres as a surplus, which belonged to the west, or Mills’ annexation. It was now claimed for the first time that the sycamore line, which, ^according to the survey of Wildman, in 1812, was the east boundary of the city tract, was, in fact, and in truth, the west boundary of the middle annexation. The west boundary of this annexation was now shifted from the line run from the shore at the slaughter-house, to the sycamore line, thus making at a single leap a stretch of 1,555 acres. The first'and second annexations now lay east of the sycamore line, when onty a part of the former, according to WiMman’s partition of 1812, lay on the east of this lino, 805 acres being on the west.
    At the October term of the court of common pleas, 1829, for Huron county, the decision in bank having been made the year before, they filed a petition for partition, wishing to have all their rights as tenants in common in the first and second annexation relocated east of the sycamore. And as the waters of the bay are subject to fluctuation, varying with the seasons, so as to effect the east end of the fraction, they continued their petition until the February term, 1836, waiting for the most favorable stage of the water, after which time they could no longer have a continuance. But while the petition was pending, to wit, in the year 1833, and after commissioners were appointed, Mills and Wildman sent for one of them, who was a surveyor, and directed him to run out the east annexation ; and in doing so they directed him to wade into the bay, along the east end of the fraction, “as long as any grass could bo seen above water.” The commissioner, after wading in deep water for some time, refused to proceed, as ho Was required, to make a survey which was dishonorable and impracticable. In the spring of 1836, a committee came on to the ground to make partition of the first annexation, which was, under the petition of Mills and Wildman, filed in 1829, the other tenants in common having in the meantime joined, and wore followed by Mills or his agent, and by the agent of Wildman, who was then deceased. While on the ground, tho agont made divers propositions to the committee about including a portion of the bay as a part of the first annexation, to which the committee paid no attention. The agent then took the writ of partition from them and indorsed the discontinuance of Mills, *and the heirs of Wildman. But the committee proceeded and made partition among the other claimants, except in two instances, whore the names were omitted in the writ by mistake, which proceedings were afterward confirmed.
    The committee barely set off to the first annexation 1,783 acres of land, which is about 500 acres loss than was sot off to the same by Wildman; and when 500 acres were set off next west for the second annexation, tho two did not extend as far west as the first did under Wildman’s partition of 1812. Quite a portion of tho 1,783 acros, as set off by the committee, is for tho most part of the season covered with water, over which a boat may float, and is of no value. As the lines of the first and second annexations were established by the committee, there was -left for the west annexation, although originally only entitled to 500 acres, more than 1,700 acres, which, on account of its quality and location, is much the most valuable part of the tract, comparing acre with acre. But, notwithstanding this, Mills and the heirs of Wildman complain that injustice has been done them, and have threatened suits in case their co-tenants took possession of what was set off to them under the partition. This led the claimants in the first annexation to file the present bill, with the intontion of bringing the entire subject again before the court. And in order that tho west line of this annexation may be permanently established where it should be, the owners in the second are made parties. The bill submits the cause to the court upon all tho facts, and asks that tho lino should be run according to the law and equity of the case. To this bill, although there aro numerous defendants, Mills and the heirs of Wildman are the only persons who come in to defend, and claim that the board of directors ascertained the quantity in the gore by means of the old traverse, as the northern boundary, and that the east or first annexation should be run out so as to conform to it. They also charge tho committee with fraud in divers particular’s, and, among others, charge that they were bound to run fifty-three chains on the east end of the fraction, when, in fact, they run only eighteen chains, and sixty-one links.
    *An issue is made in the bill, and answers as to the manner in which the board ascertained the quantity in the fraction north of Perkins township; the defendants claiming it was by means of the old traverse, and the complainants by means of the diagonal-line, and it is submitted on both sides for the court, to-ascertain the truth, and run the'lines of the annexations accordingly. Mills and the heirs of Wildman have also filed a cross-bill, in which they set up their rights in the first annexation, and pray that after it is run out, in accordance with the views and intentions of the directors, that the rights of each may be aparted to them in severalty, and insist upon what was the true mode-adopted by the directors.
    The complainants in the original bill have all answered, and deny that thé directors over used the traverse of McLean and Clarke for any purpose, but that the quantity in the traverse was-ascertained by means of the diagonal line, and ask that the annexations be run accordingly, or that the lines run by Wildman in 1812 be established as conclusive upon all the parties. Mills is. the exclusive owner of the third, or west, annexation ; he owns, or claims, 145 acres in the first, and about the same amount in the-second. Wildman claims 180 acres in the first, and about the-same amount in the second. The heirs of Eliphalet Lockwood and the heirs of John Cannon, the original sufferer, are the principal owners in the east annexation, and the latter own a small interest, or about one-fifth of the second. A partition was made-of the second annexation in 1837, as well as the first. The original bill states that two of the claimants in the first annexation-have not had their rights set off at all, and pray that, in the final order of the case, it may be ordered to be aparted to them ; also,, that one of the claimants in the second, Mrs. Townsend, has never-had her rights, which are asked to be set off to her.
    The controverted facts of the foregoing statement will appear in the opinion of the court.
    The case was elaborately argued, for complainants, by George. Reber, C. Boalt, and Peter Hitchcock, and for the respondents, by E. Parish, and Beecher & Cooke.
   *Birchard, J.

These suits were brought to effect a settlement of the boundaries of two parcels of land, embracing the site of Sandusky City, being a part of the township of Portland, or of the gore lying between the township of Perkins and the •southern shore of. Sandusky Bay. The great value of the property in controversy, and the importance of the issue to the numerous parties interested in it, have elicited untiring industry on the part of their respective counsel in preparing these causes for •a final hearing, and demand at our hands a careful investigation.

This land is a portion of the half million of acres granted in 1792 by the State of Connecticut to those of her citizens who suffered by the burning of Danbury, and several other towns, by the public enemy, during the revolutionary war. In the year 1803, these grantees and sufferers were incorporated by an act of the ■legislature of this state, which act authorized the appointment ■of a board of directors for the purpose of locating and surveying the grant, and making partition thereof among the numerous ■proprietors. In pursuance of their duty under this act, the directors, through Sherman, their agent, on December 16, 1805, entered into a contract with James Clarke, Jr., and John McLane to survey the entire grant. Before this survey could be made, it became necessary to settle a preliminary question with a company, who, under the name of the Connecticut Land Company, in the year 1795, purchased the remainder of the Connecticut Western Reserve, including prior grants, and particularly the grant of the half-million acres to the sufferers. This latter grant was bounded north on Lake Erie, but it was finally agreed by the agents of both the companies that the waters of the bay should be ■considered the waters of the lake, and that the northern boundary ■should be run by competent surveyors under the superintendence ■of two agents, one appointed on behalf of each company. Mc-Lano and Clarke began a traverse under the direction of Sherman and Spafford, the agents of their respective companies. The .answers of the respondents to the original bill, alleges that they did “so far settle all necessary lines *to enable the two companies to run and establish the dividing lines between the land owned by the respective companies,” and that McLane and Clarke did traverse the south shore of Lake Erie and Sandusky Bay “so .as to enable the two companies to run the division line, and run it correctly;” (and this traverse was the one adopted by the diirectors, and which regulated and controlled the' whole survey, and •all the annexations on Sandusky Bay,) “ and that this traverse is ■as binding upon the proprietors of the annexations as any other line.” There exists a train of circumstances and facts which induce the belief, and carry to our minds the conviction, that these allegations of the answer, however honestly made, are not in truth agreeable to fact.

1. If true, the area of the entire grant, instead of being given ag 500,027 acres, would have been some 8,000 acres greater than that number.

2. The gore in dispute would have had an area of 4,500 acres, nearly, instead of 2,783 acres.

3. The plats executed at the time, instead of representing the •shore of the bay, where it bound this fraction on the north, as -corresponding nearly with a right line drawn between the northern extremities of the side lines, would have corresponded more nearly with the true shore of the bay. Add to these the acts of the directors and the statements of witnesses, and all doubt is removed .as to the object and uses made of this traverse. It was never acted upon for any purpose beyond the effecting a settlement with the Connecticut Land Company. It could never have been regarded as a true line for the purposes of partition. Clarke and McLane left their work incomplete. In consequence of this, and of supposed inaccuracies, the directors, by Isaac Mills, their agent, on March 14, 1808, entered into a contract with A. Ruggles to survey and subdivide the entire grant, “ and especially the fraction )r broken tracts or parcels of land on the shore of the lake, that they might be annexed together,” and to furnish a map, showing all the town-lines, streams, or water-courses, together with a traverse of the shores of Lake Erie *and Sandusky Bay. Under this contract Ruggles mado a survey, and on November 7, 1808, returned to the directors his field notes and map, upon which is stated the area of each township and fraction, and also the field notes of the traverse of the shores of the lake and bay, taken by McLane and Clarke, certifying that his own work was correct, and stating that he could not certify that the traverse of McLane and Clarke was correct.

This survey was approved, and several hundred copies of the map by Ruggles were ordered to be published. In making the partition among the sufferers, the directors seem to have acted entirely upon this survey and report. A map struck under the order of tho directors, and a copy of tho manuscript map. used by them in making the partition, are in evidence, and upon neither of them is there anything to indicate tint the McLane and Clarke traverse was at all regarded. On the contrar>-, they show that it must have been entirely disregarded by Ruggles in platting the survey, and by the directors in aparting the lands.

Exhibit number two, appended to the answer of Mills, shows the plan of making the partition adopted by the directors. It is an important document, and mutually relied upon by all tho-parties to this proceeding. It is a record of the proceedings of the directors at a meeting holden at the county-house in New Haven, Connecticut, on November 8, 1808, to which Was reported-at length the plan of partition which was finally adopted. This report recites, among other things, that Ruggles had completed a survey of the lands of the company, by surveying it into five ranges of townships from south to north. The report gives the locality, boundaries, and area of each range, township, and fraction. It recites “ that the twenty-third range contains six square townships of the same dimensions as the others ” (five miles from north to south, and a little more than five miles from east to west), “with a traction between the north line of the sixth township and tho shore of tho Sandusky Bay, containing 2,783 acres,” and, after recommending tho mode of numbering, etc., it further recites, “that*range twenty-third consists of six townships, numbered as aforesaid, exclusive of the fraction of 2,783 acres, between-township number six and tho Bay of Sandusky, which is afterward annexed to section four, in township number one, in the-twenty third range, and sections one and four, in township number one, in the twenty-fourth range;” and stating that the object of making annexation is to render each section of equal value, in order that the whole land might bo aparted and divided by the drawing of one hundred and twenty classifications; tho proprietors-in each classification drawing the equivalent of one quarter township or section. The report recommends “ that to section first, in township number one, in the twenty-fourth range, be annexed 1,783. acres olf the east end of the fraction of 2,783 acres, betwoeu the north end of township number six, in the twenty-third range, and Sandusky Bay. That to section four, in township number one, in the twenty -fourth range, bo annexed 500 acres of said fraction, of 2,783 acres between the north end of township number six, in> the twenty-third range and Sandusky Bay, next west of the former annexation of 1,783 acres; and that the remaining 500 acres ■of said fraction of 2,783 acres be annexed to section four, in township number one, in the twenty-third range.” This exhibit ■further shows that, on November 9,1808, “the directors proceeded to and completed the draft, and made the exact partition of all the lands of the company, agreeably to the foregoing mode of parti* tion and act of incorporation,” and voted that the field minutes of the survey of the “lands of the company, made by Almon Buggies, Esq., in pursuance of his contract with the company, be approved and recorded at full length in the records of the company.” The present controversy has arisen from the fact that the fraction •lying between township six and the shore of the bay, including the marsh or lands frequently or constantly covered by the waters of the bay, has an area of about 4,500 acres instead of 2,783 acres. The respondents to the original bill, in their answer, and by their cross-bill, claim that the proprietors of the eastern annexation shall have their demand satisfied by a survey *of 1,783 acres, and no more, to be taken from the east part of the fraction, making the Clarke and McLane traverse, or the shore of the bay, their northern, and the township line of Perkins their southern boundary; and that five hundred acres next west, shall in like manner, be surveyed to satisfy the second annexation, leaving, for the purpose of satisfying the third annexation (which, in the words oí the directors, is “ the remaining 500 acres of the fraction of 2,783 acres ”), over 2,200 acres, no part of which is land covered with water. In support of this bold proposition, the court are urged to construe the descriptive language of the records of proceedings of the company, as we would similar language of description in a deed of bargain and sale; to apply the technical rules which govern such cases, and thereby gather the intention of the directors, regardless of all the other evidence manifesting their real intention, and, especially, regardless of all the parol and ■other proof, showing that such a course will clearly defeat the •object of the directors, will give to the owners of the third annexation an unjust advantage which was never intended, and will throw upon the owners of the 1,783 acre tract near 600 acres of marsh, swamp, or bay, which the directors and their agent, in the controversy with the Connecticut Land Company, were unwilling to receive and measure as land. We concede and recognize the doctrino that the boundaries of the fraction and annexations, as-fixed by tho directors, when found, are to remain immovable, and that the partition made is, in fact, the conveyance of their proportions to the respective owners. Nor is it d,oubted that when land' is conveyed by m.etes and bounds, all the land within the bound, and no more, passes by the deed or grant. It is upon this principio that we hold that all the land between the north line of Perkins- and Sandusky Bay was disposed of by the three annexations, notwithstanding the fact that tho directors assumed only to dispose, of 2,783 acres, when, in fact, they disposed of 4,500 acres.

Taking the record evidence by itself, it sufficiently appears’ that tho true area of the fraction was unknown to any of the *parties engaged in making the partition.

Ruggles did not pretend to have measured any but the base and side lines. Ho reported that McLane and Clarke’s traverse could not bo relied upon, in bis final report and previous letters. The-face of his maps shows that he did not follow it in platting. The-area stated could not have been given if any calculation had been based upon it, and could only have been found, as uniformly stated in the record, to contain 2,783 a'eres, by closing tho survey with an imaginary right lino, drawn between the northern termini of tho side lines. Other proof shows that the directors,, agent, and surveyor were aware that the extension of the east line fifty-three chains, would carry that part of the boundary off the dry land, and some twenty-eight chains into the marsh or bay, where the water was frequently from three to four feet in depth, and would include many superficial acres of what was not regarded as land, in the adjustment of boundaries between the Sufferers’ grant and the Connecticut Land Company. They were-also aware that the shores of the bay wore very irregular, and that, as claimed by them in the settlement with tho other company, the water-line would, in some places, lie south, and, in others, north of the right line assumed in estimating the quantity. The estimate, as shown by the letters ol Ruggles and the statements of the directors, was intended to be kept, at least, within the actual quantity of dry land, excluding the marsh and water; and, in making .the north and south parallel linos, to divide tho annexations, it was undoubtedly designed to intersect the base line at points where they would cut it, establishing them upon mathe. matical principles, assuming the measurement to be as reported by Ruggles : The base, four hundred and twelve chains in length ; the east line at right angles, and fifty-three chains in length ; the west line also at right angles, and eighty-two chains in length;, and the survey closed by a right line. This would give two hundred and eighty-three chains seventy links, for the base of the 1,783 acre tract; sixty-six chains and eighty-hundredths for the base of the first 500 acres next west therefrom, and a base "of sixty-one chains and a half for the “remaining 500 acres;” *and, in the words of the records of the directors, “ make a complete and exact partition of all tho lands of the company, according to the foregoing mode of partition.”

The whole of the land between the shore of the bay and the north line of township six was so divided, because that is what was intended to be done. Were it a fact that 'the whole record, taken together, owing to the manner and form of the expressions employed, would not admit of a construction consisteut with tho object had in view by the directors, the merits of this cause would make it a legitimate subject for the interposition of a court of chancery to correct the mistake, and to prevent annexation thus from acquiring an advantage inequitable, unlair, and unjust, in any and every aspect in which it may be viewed. But a court of equity is not at.liberty, nor is a court of law at liberty, to gather the intention of tho directors from an isolated part of the record. The whole, when brought forward and relied upon, should be looked to and considered as one act and deed. Tho object in view, and the means of arriving at it — equality of division and a complete partition, without a remaining surplus — were the great objects. Having no traverse of the bay, they gave quanüty as a rule of proportion, according to their understanding of the rights of proprietors; and what boundaries they intended can now, and could then, be lound only by adopting their mode of ascertaining the quantity given as their rule of proportion. Why should the descriptive words of the first 'and second annexations be the exclusive guide, and all other parts of the record disregarded? Wh3r disregard the plats referred to in the proceedings, and used at the time? Why overlook the objects in view — the duty of directors to make a complete and equitable division? Why the fact that, in equalizing, the values of the annexations are given in the quantity of acres each was supposed to contain? And why the words used descriptive of the third annexation — ‘‘.the remaining 500 acres of the fraction of 2,783 acres ” — words that clearly imply, that all of the fraction, save the 500 acres, was, in fact, given to the first two annexations? Independently of all parol proof, it is impossible for us to suppose *the directors meant to leave an undivided portion of the fraction ; as imposille to believe they intended to give to the third annexation 2,200 acres of the better portion of the’ tract. Taking the acts done, the facts and things to which their words referred, as they existed when the words were employed, and the true meaning may be safely gathered from a consideration of the whole, and in no other way.

They had three measured lines; an unmeasured,-but natural boundary, for the fourth line, and an underestimated quantity, all laid down upon a plat — the whole to be divided in the proportion agreed on. Thoy'so divided as to exhaust the entire base. Had this base been severed by lines run upon the ground, the descriptive words would not have changed those lines. They were only marked upon the plat. Yet the intention in this, as in all other grants, should govern; that intention was, that each annexation should appropriate a portion of the base, in proportion to the quantity, and the contents of the entire tract.

Eldredge, one of the directors, testifies that the area of the fraction was ascertained as we have supposed. Mills and Wildman have both said the same thing. Eldredge also states, that “it was the intention of the directors, that the 1,783 acres, from the east side of the gore, should extend west, on the south line of the gore, its duo distance, allowing the other tracts, of 500 acres each, the same extent of base, according to the quantity, and the supposed jhape of the gore.” The imaginary lino was used merely as the means of making the division, but it was intended that each annexation should extend to the bay shore. All the facts connected with the case so strongly fortify this statement that it would seem an unbiased mind could not question its accuracy. We believe in it, and act upon it. It will give to each tract more than the quantity estimated by the directors and Buggies, and will bound each, on all sides, by the boundaries intended, and will not enrich one class of proprietors at the expense of another.

Several objections to establishing the boundaries, as originally designed, romain to be considered. First in order is the *suit determined in this court, in 1827, in Lockwood v. Mills, 3 Ohio, 21. That was a bill in chancery claiming that there was a parcel of surplus, or undivided lands, lying west of the throe annexations, to which all, who drew any interest in the fraction, were tenants in common. It alleged a state of facts which never existed ; and, proceeding upon false premises in matters of fact and conclusions of law, was rightly dismissed, because, had there been a surplus, there was no such tenancy in common as was alleged, and all the parties interested by the showing of the bill and answers were not made parties. This was all that was necessary to bo decided to settle that suit, and all that should be considered as settled by it. In the opinion reported, the court remark that “the annexation, by acres, shows that so many acres were deemed sufficient to equalize the allotments made to each; and we conceive that the actual contents of the lraction can neither diminish nor enlarge the quantity annexed in this case, because the claim of each to his separate annexation was distinct from, and independent of, the other. If there had been a deficiency, each party entitled to an annexation must have been satisfied in the order of his claim, and the one who, in point of law, was last, must have been thrown upon the company, or bear the loss.”

The quotation is doubtless better law when applied to the ease which elicited it, than when applied to one essentially different. Tt should be borne in mind that the court were not called upon to. ■establish an unascertained boundary, and did not undertake to determine that the first annexation should not have the identical boundaries intended by the directors. The opinion is based upon the hypothetical case, there presented as a real one, and merely adoptR the well-established rule, that where a tract is granted, bounded upon three sides by natural or artificial limits, and the ■quantity given as the means of ascertaining the fourth line, the cxac-t quantity, and no more, passes by the grant. A iormor decree to be a bar, even when well pleaded, or set up by way of answer, must be such as shows that the rights of complainants, now set up, have boon already conclusively determined. 7 Johns. Cli. 1. *llenee, in support of a plea of former decree, it is necessary to set forth so much of the first bill and answer as will show the same point was then in issue. Collins v. Gough, 7 Bro. P. C. 94; 2 Mad. 314. But wo can not treat that adjudication as a bar, without doing what the parties do not require of us.

Mills, in his answer, prays that the court would ascertain and establish the west line of said 1,783 acre annexation, and the west line of said 500 acre annexation, next west therefrom, in exact accordance with- the modo of partition adopted by the directors of said' Sufferers’ Land Company, and that the court would then cause to be divided and aparted to each of the owners and proprietors, in each of said annexations, his and their just and exact proportions of said annexation according to the modo of partition, adopted by said board of directors. The answers of the Wikimans refer to the answers of Mills, make it a part of their own, and pray for a like partition; and the eross-bills contain a similar prayer in substance.

The next objection is the statute of limitations, and the above-quotation, from the answers, removes this obstacle. No advantage-can be taken of the statute unless it is pleaded, or insisted upon, by the answer. 1 Atk. 493. Yet, if the answers and eross-bills were differently framed, the statute is not a bar. The actual adverse possession of Mills and Wildman, began about 1818, the time-when the city was surveyed into lots — certainly not prior to 1816— for white settlements did not extend west of the camp,-at Huron, during the war. Before this E. Lockwood died, and his three-sons had never been in this state prior to tho filing of their bill.

John Cannon, the sufferer, died in 1796; John, his son, in 1797,. leaving John the 3d, who has never been in the State of Ohio, and who joined in filing the present bill. John the 2d also loft E. M. Townsend, Sarah St. John, and George Cannon ; the former of whom has always resided out of the state, and who is a party to-the present proceedings. Sarah died in 1808, leaving George B. St.John her heir, neither of whom have, ever been in the state.. •George, the son of John 2d, died in 1829, also being a non-resident. His children are parties to *the original bill. Esther St. John, the present claimant, was the daughter of James Cannon, .the sufferer, who died in 1798. Esther lias always been “beyond seas.” Kneeland Townsend purchased of Mills, in 1824, and between that time and the commencement of this suit, the statute has-not had time to run.

The fact that the parties had knowledge of the adverse possession more than twenty-one years before suit, and bad agents-within the state, does not, as we think, remove the disability and take the case from within tho proviso of the act. That the proviso is in force was settled in 7 Ohio, 152, 225.

The remaining objection is lapse of time. Courts of equity protect parties against stale demands, and will not encourage them in sleeping upon their rights, but will, in general, follow the analogies of the statute. These claimants are not, however, barred, if we adopt the analogies of the statute. Although more than twenty-one years elapsed after their property was wrongfully taken into the exclusive possession of Mills and Wildman, be'ore thoj7 filed this bill, it is not readily preeeived that the claim is a stale one. In some form or other it has been in litigation nearly the whole of the time since 1818. The proceedings in partition sought to be confirmed in one aspect of the case, were begun as-early as 1827, and are now ponding on a writ of error to the eour. of common picas. If the parties have slept upon their rights, ought it to be brought up in judgment to condemn them, cóntrarj to equity, when, from all the lacts, it appears that for twenty-four years they have made continuous efforts to rouse themselves enough to make the merits of their claim manifest in a court of justice, maugcr the skillful, and, hitherto, successful management of their more experienced and bettor informed adversaries? They have-not slept. They merely acted inefficiently, as opposed to more skillful men. Decree must be entered for complainants, referring-the cause to a master to make partition, valuation of property sold to bona fide purchasers, etc., reserving other questions until the coming in of the report. Decree accordingly.

Lane, C. J., did not sit in this case.  