
    *Sarah McAfferty and others v. Thomas J. Conover’s Lessee.
    Effect will be given to the intention of parties to a deed, in respect to lines and corners; and parol evidence of declarations and conduct may, for this purpose, be received where there is a latent ambiguity, or where the application of the description in the deed to the monuments found on the land require identification. But the intention of the parties can not be made to take the place of a controlling call in a deed, or to contradict the description in the deed. When, therefore, the intention and the controlling call are so inconsistent with each other, that the land as described in the deed, and the land intended to be conveyed, are different tracts, the description in the deed must prevail at law, and the parol evidence of intention must be rejected.
    To conclude the owner of land from denying his own acts and declarations in relation to an erroneous line, which have influenced the conduct of another, and to work an estoppel in pais, and forfeit title, the acts and declarations of the owner must, in general, be willful — that is, with knowledge of his rights, or with intention to deceive the other party.
    'When the line between owners can not with certainty be ascertained, and they, in view of this, agree upon and establish a line, such agreement settles the line; but where a line or corner is, in fact, certain, and an erroneous line or corner is, by mistake, made, the acts of the parties in making such mistake, and the declarations or admissions induced by such mistake, and the fencing by both parties, in accordance with such mistake, do not operate in the nature of an estoppel in pais to forfeit the estate. What subsequent acquiescence, after the mistake is discovered, or what gross neglect afterward to assert a right to correct it, amounting to fraud, will conclude the owner, is another question.
    Ejectment.
    On petition in error to reverse the judgment of the ■district court of Butler county.
    Thomas J. Conover owned a tract of land, called the Chambers •tract, bounded on the south by a county road. One Smith owned land on the east' side of this tract; and defendants below, McAfferty .and Stimpsons, owned land on the south side of the Chambers tract. The county road run between the Chambers tract and the lands of McAfferty and Stimpsons. Conover and Smith, in 1849, .procured a surveyor to survey the Chambers tract. There was no doubt about the true lines and monuments of the Chambers •*tract; but the surveyor so surveyed it, by disregarding the monuments, as to overlap and take in a strip of two acres of Smith’s land on the east, and leave out a strip of two acres of the Chambers tract on the south, adjoining the lands of McAfferty and Stimpsons, thus giving to McAfferty and Stimpsons two acres on the north side of the county road. Smith was present at this survey, and seems to have supposed the survey correct; and he and Conoverplanted stones and moved their fences accordingly. As to the strip left out of this survey on the south, Conover set a stake and stone to mark the new corners of the Chambers tract on its south 3ide. Up to this time it does not appear that McAfferty or Stimpsons knew anything about this survey. Conover then called on McAfferty and Stimpsons *to purchase this strip of land in the Chambers tract, lying on the north side of the county road. They denied owning the strip, and claimed no land upon the north side of the county road; but Conover insisting that they did own it, purchased it from them, and on the 7th and 12th of September, 1849, they made deeds to him, with covenants of general warranty and title. Conover, having thus purchased his own land, and paid McAfferty and Stimpsons for it, soon afterward discovered that the true lines of the Chambers tract did not overlap Smith’s land, and did extend to the county road. He did not like the trade, and thought- McAfferty and Stimpsons should pay back the money. McAfferty and Stimpsons liked the trade, and juref'erred keeping the purchase money. Conover took the advice of counsel. The deeds of McAfferty and Stimpsons, which were intended to convey the strip to Conover, described a strip of land, and conveyed the-following premises: “ Beginning at the southeast corner of the Chambers tract, now owned by said- Thomas J. Conover; thence west, eighty rods; thence south four rods; thence east eighty rods; thence north four rods, to the place of beginning, containing two' acres of land, strict measure.” Conover then, under the advice of counsel, brought this action of ejectment, to recover, not the strip' of land in the Chambers tract, which McAfferty and Stimpsons intended by this description to convey, but to recover a strip of land on the south side of the county road, adjacent to, and south of, the-true lines of the ^Chambers tract. The defendants below* obtained a verdict in the common pleas. On appeal, the case was’ tried in the district court, and a verdict rendered for Conover. A bill of exceptions was taken. The lines and monuments of the-Chambers tract, as set forth in the deed therefor, are not stated in the bill of exceptions; but by the bill of exceptions, it was admitted that the parties claimed under a common source of title; that the Chambers tract as deeded, and according to monuments erected, extended to, and was bounded by, the county road ; and, consequently, the true southeast corner of the Chambers tract was at the road. The defendants below then, for the purpose of locating the lands described in their deeds to Conover, within the true, limits of the Chambers tract, offered to prove the circumstances above mentioned, under which the purchase was made and the deeds were executed to Conover : thereby showing the intention, of the parties, and the location of the land intended to be convoyed. This proof was objected to by the plaintiff, and the district court ruled out the testimony. The question whether the district court erred in ruling out the testimony, is now before this court on petition in error filed by MeAfferty and Stimpsons.
    
      Thomas Millikin, for plaintiffs in error, insisted:
    1. Conover made a new south line, put in new corners for the Chambers tract, moved his fences on the east side; and then represented to the plaintiffs in error that these were the true lines and corners. The plaintiffs in error acted upon these representations upon the request of Conover, and he is estopped by his own acts and admissions from denying that the new corners are the true corners, or from asserting that he owned land south thereof. 1 Greenl. Ev., sec. 207; Gray’s Adm’r v. Allen, 14 Ohio, 58, 71; Galloway et al. v. Brown’s Lessee, 16 Ohio, 428; Swarts v. Moore, 5 Serg. & R. 257, 265; 1 Phil. Ev., Cow. & Hill, 200, 212.
    2. There -are two corners on the ground — the old and the new corners. Here is a latent ambiguity, and parol evidence may be received to show which was intended. 1 Greenl. Ev., note 1, sec. 301; 2 Phil. Ev., Cow. & Hill, 1390; 13 Pick. 265; *2 Greenl. Cruise, 337, note; 2 Met. 41; Mann v. Pearson, 2 Johns. 37.
    3. Parol evidence is competent to show an agreed corner. 9 N. H. 473; Wright, 576. Such agreement is not within the statute of frauds. Lindsay v. Springer, 4 Harr. 547; 4 Wheat. 513; Jarrot v. McIlvaine, 1 Richardson, 14. Such proof is admissible to aid the interpretation. Stone v. Clark, 1 Met. 373.
    
      John It. JOewis, and Scott & McFarland, for defendant in error:
    1.. We admit that in a suit in equity, parol evidence might be received to correct a mistake in the deeds where the mistake is charged in the bill, so that it may be answered and issue taken upon it. But in that case the party seeking relief must do equity— must offer to refund the purchase money, which seems to be far from the intention of the plaintiffs in error in this. case. But such a defense can not be set up at law. Patterson et al. v. Hull, 9 Cow. 742; Austin v. Sawyer, Ib. 39.
    2. It was not competent for the plaintiffs in error to prove that by the “southeast corner,” Conover intended the corner made by the new survey. There is no ambiguity, either latent or patent, in the deed as to the place of beginning. To say that a tract of land, lying in the form of a parallelogram, and bounded by north and south, and east and west lines, has two southeast cox-ners, is simply an absurdity; there can be but one, and any other point than the true one is not Hthe southeast corner,” and to receive evidence as to any other point is to contradict the deed. Jackson v. Wendell, 5 Wend. 146; Jackson v. Wilkinson, 17 Johns. 147; Bratton v. Slawson, 3 Strobh. 127; Bell v. Moore, 6 N. H. 205; Milling v. Crankfield, 1 McCord, 257.
    3. It is claimed that the parol evidence was competent to show an agreed corner. But there was no dispute between the parties to this action, nor is the desorption in the deed doubtful, both of which conditions we conceive to be necessary in order to render such evidence admissible. In the case cited from Wright, 576, *the court say: “ But if, without such controversy or ageement to settle, the parties under a mistake as to the boundary, or in ignorance of the line, shajxe their occupancy to a supposed line, which is afterward discovered not to be the line, they are not concluded by such occupancy, but may resort to their title jxapers.”
    4. Conover is not estopped by his acts and admissions from claiming the land in dispute, because they resulted from mistake, and not from a fraudulent intent, which, aixd that the party alleging the estoppel is himself ignorant of the truth, and relied on the faith of such acts or declarations, and that the truth will injure him, are necessaxy to constitute an estoppel in pais. See Dezell v. Odell, 3 Hill, 215; Dye v. Cady, 20 Conn. 563; Martin v. Angell, 7 Barb. Sup. Ct. 407; Commonwealth v. Moltz, 10 Barr, 527; Copeland v. Copeland, 28 Maine, 525; Tilghman v. West, 8 Ired. Eq. 183; 5 Met. 478; Tolman v. Sparhawk, Ib. 469. The case of Gray’s Adm’r v. Allen, 14 Ohio, 58, does not conflict with this rule, but rather tends to establish it.
    
      Again: an estoppel in pais is never allowed to be used as an instrument of fraud; but only to prevent injustice. Pierrepont v. Barnard, 5 Barb. Sup. Ct. 364.
   J. R. Swan, J.

No doubt the rights of these parties could be readily adjusted, and upon just principles, in a court of equity. Our inquiry now is : What are their rights at law?

I. Can McAfferty and Stimpsons be permitted to show that, by the call in their deed of “ the southeast corner of the Chambers tract,” they and Conover meant and intended the corner made by the then recent survey.

Nothing is more common, upon the trial of eases to settle conflicting boundaries, than the admission of parol evidence of third persons, and proof of the declarations of the parties in interest, in relation to corners. In the application of the description of land in a'deed, to the land itself, the fact whether the monuments found thereon are identical with those mentioned in the deed, is always the subject of parol evidence. And, when *the calls of the deed, and the objects found on the land, render it uncertain which of the objects found were called for, parol evidence, the admissions of the parties, or other extraneous circumstances may be proved, to show which of the objects were in fact called for by the deed. In such case, there is a latent ambiguity arising in pais, and to be settled by proof in pais. Nor does such proof contradict the description in the deed. It simply aids in its interpretation, and gives application to its description of the land. But where there is a call in a deed, which was in fact not intended by the parties, and is found, and is unambiguous, the intention of the parties can not be made to take the place of the call; for if this could be done, titles and lands would be transferred by the intention of parties, and not by deed. Effect will be given to the intention of the parties, in respect to calls, only where the words of description they employ will admit of it, and are not inconsistent with the intention proved; further than this, a court of law can not go; beyond this, is the region of equitable jurisdiction, under the head of mistake.

In this case it was admitted as matter of fact, on the trial and by the bill of exceptions, that “the southeast corner of the Chambers tract ” is on the county road: the controlling corner of the land described and conveyed by the deeds of McAfferty and Stimpsons to Conover; and the only locative call in the deeds. This admission precludes any doubt as to where the southeast corner of the Chambers tract is; sets at rest any question of latent ambiguity; so that, if the proof of the intention of the parties to the deeds, is received and acted upon, it would contradict this call and transfer all the calls of the deed from the south side of the county road into the Chambers tract. Such a transition of a tract of land can not be made by proof of intention, in contravention of the calls of a deed. It is very clear that Conover made a mistake when he purchased from McAfferty and Stimpsons his own lands; and that MeAfferty and Stimpsons made a mistake in conveying to Conover their own lands south of the county road.

II. It is claimed that Conover made' a new southeast corner for the Chambers tract, represented the same to be the true corner, *and induced the plaintiffs in error to act on that representation ; and hence, Conover is estopped, by his own acts and admissions, from denying that the new corners are the true corners.

As a general rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such denial will operate to the injury of the latter.

Estoppels by deed or by matter of record, sometimes conclude the party without any reference to the moral qualities of his conduct. But estoppels 'in pais are not allowed to operate, except where, in good conscience and honest dealing, the party ought not to be permitted to gainsay his admission. Commonwealth v. Moltz, 10 Penn. 531. And, in general, the act or declaration of the party must be willful, that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party. Copeland v. Copeland, 28 Me. 525 ; Tilghman v. West etal., 8 Ired. 183. Thiskindof estoppel was first established by courts of equity; and has since been extended to courts of law.

It is founded on fraud. There are implied wai’ranties and implied guaranties which are enforced, not as estoppels in pais, but as contracts, and in which the question of fraud or fair dealing may or may not be involved. Whether it be a rule .without exception, that an estoppel in pais must always be accompanied with the willful act or declaration of the party upon whom it is to operate, we do not decide; but we do hold that such act or declaration should be willful, to operate as a forfeiture of lands.

Thus where the true lines are in fact unquestionable, and parties by mistake agree upon an erroneous line as their boundary, and suppose the line agreed upon to be their true line, and fence to it, their acts and declarations do not operate in the nature of an estoppel. A party will not forfeit his estate by a mere mistake; nor can the statute of frauds be thus evaded. Something more is required to transfer the title. If there has been acquiescence, adverse possession, and improvements made in accordance with such erroneous line, under such circumstances *as that the owner is chargeable with gross negligence amounting to fraud, an estoppel in pais may probably permanently establish the erroneous line.

There is another class of cases where the line between owners of land can not with certainty be ascertained; and because uncertain, they agree upon and establish the line. Such agreement settles the line; not by estoppel, but by agreement.

In the case before us, the corners of the Chambers tract were in fact indisputable. The parties acted under an honest mistake, without fraud or intentional deception. Declarations thus made do not operate in the nature of an estoppel to forfeit the title to land.

It is proper to remark, that the deeds made by McAfferty and Stimpsons, describe and convey on their face a strip of land, and the proofs of the acts and parol declarations of Conover would, if an estoppel in pais, convey another and different strip of land. A title to an entire tract of land dependent upon the establishment by parol proof of the acts and parol declarations of a third person, is not quite as certain and convenient a title as the law has in general so wisely provided for by deed and record. And this at least shows that the doctrine of estoppel in pais, however safe in courts of equity, should be carefully and cautiously applied to titles at law.

On the whole, we are of the opinion that in this case one tract of land-was conveyed by mistake instead of another; and‘the mistake can not be corrected at law by jiroof of the intention of the parties; and that under the circumstances of this case and their relations growing out of mutual mistakes as to the purchase and the deed, justice and good faith does not require the application of the law of estoppel in pais to the conduct and declarations of Con-over.

Judgment of the district court affirmed

Bartlet, C. J., and Brinkerhoee and Bowen, JJ., concurred.

Scott, J., having formerly been of counsel, did not sit.  