
    Nichol vs. Lytle’s lessee.
    
    When the lines or boundary of land are fixed and can be identified, a verbal agreement to fix the line or boundary different, is within the statute of frauds, and void.
    But where there is doubt as to the true locality of a line, a verbal agreement of the adjoining claimants, and their acts done in pursuance . of it, is evidence that the line so agreed upon is the true boundary.
    On the thirteenth day of December, 1805, John Nich-ol, father of the plaintiff in error, conveyed to the defendant in error, two hundred and one-fourth acres of land in Williamson county, being part of a 1000 acre grant to himself. The boundaries of the land so conveyed, are as follows: beginning at a cherry tree and dogwood in Murfree’s line; thence east with his line 180 poles to an elm, hickory and hornbeam; thence north 178 poles to a poplar and dogwood; thence west 180 poles to a stake in Nichol’s west boundary line; thence south with his line 178 poles to the beginning. John Nichol, Jr. the plaintiff in error, was present when this land was conveyed by his father to Lytle; assisted m making the survey; knew the lines and corners then, and continued in possession of this knowledge up to the time this suit was brought. The poplar, Lytle’s north east corner, had been frequently pointed out by Nichol as Lytle’s comer. AT- 1 i • j • P n T , , JNichol obtained possession oi part of Lytle’s land, on the northern boundary, and a dispute arose as to how far north Lytle was entitled to hold. To settle this dispute it was agreed in 1825, that all claim to any particular lines and corners should be abandoned, and that the land of Lytle should be run out by Hunt, the county survey- or, according to the courses and distances called for in the deed, and that both parties should be bound by the result, whether the northern boundary should turn out to be north or south of the true line. According to this agreement, (which was not reduced to writing) the survey was made, and the 178 poles on the eastern boundary line, terminated twenty poles short of the poplar, which had been known as Lytle’s north east corner. Lytle af-terwards became dissatisfied, and instituted this action of ejectment against Nichol. A verdict and judgment was rendered in favor of Lytle in the circuit court of Williamson county, from which Nichol prosecutes his appeal in error to this court.
    
      R. C. Foster and Collinsworth, for plaintiff in error.
    
      Craighead and Washington, for defendant in error.
   Green, J.

delivered the opinion of the court.

From the evidence in this cause, it is apparent that the parties labored under no uncertainty as to where the true line was, as called for in Lytle’s deed. The only uncertainty was, whether the distance called for in the deed running north, would arrive at that line. It was "an agreement in fact, on the part of Lytle, to give Nichol whatever land should be found to be included in the lines of his deed, as they had been marked and designated, over and above the two hundred and one-fourth acres called for; and on the part of Nichol, to give Lytle so much land as said lines might fall short of making that number of acres. They seem to have been under the impression that Lytle was entitled to two hundred tod one-fourth acres, whether that amount was included in his marked lines or not, and that he was entitled to no more, though a larger numher’should he found to be thus included. In this they were mistaken: Lytle was entitled to all the lands included in the lines of his deed.— The court was therefore right in telling the jury that this contract was within the statute of frauds. If Lytle would not have been hound by a • parol agreement to sell his land to Nichol, shall he be hound by such agreement to give it away without consideration ? Surely not. 3 Ran. Rep.

Where there is doubt as to the' true- locality of a line1, the verbal agreement of adjoining claimants, and thei-r acts in pursuance thereof, fixing upon one, is evidence that the line so agreed upon, is the true boundary, especially if long acquiesced in. 3 Stark. 1030: Houston vs. Davidson, 1 Yerg. Rep.' In this case no such doubt existed, and it cannot fall within that rule.

Judgment affirmed.  