
    [Sunbury,
    July 1, 1824.]
    BENNER against HAUSER and others.
    IN ERROR.
    The admission of a person under whom the plaintiff claims, by deed subsequent to the admission, as to the situation of a comer tree, pointed out to him by a-third person, is evidence of boundary against the plaintiff; the person who made the admission, being dead at the time of trial.
    Evidence that the defendant was in possession of the land in dispute, and bad purchased it, at a period antecedent to the date of his deed, is admissible.
    Where the party offering evidence is called upon to state for what purpose it is offered, he will be confined to the point proposed to be proved; but if the evidence be objected to generally, all that is incumbent upon the party offering it is to show, that it is proper for some purpose.
    Two bills of exceptions to the admission of evidence offered by the defendants below, who were also defendants in error, accompanied the record of this ejectment, on the return of a writ of error to the Court of Common Pleas of-- county.
    Both the plaintiff and the defendants claimed under Josiah Mat-lock, who in the year 1786, purchased from Samuel Burrows, fore 
      contiguous tracts of land, taken up in the year 1774, by warrants, in the names of William Lippencott, John Gill, Caleb Jones, Isaac Catharall, and Christopher Rinks, and patented in the year 1776. Two of these tracts, one in ■ the name of Jones, the other in the name of Catharall, were purchased by the defendant, Hauser, of Matlock, who executed a deed of conveyance to him, dated 2d of March, 1795. The plaintiff, Benner, purchased also of Matlock, part-of the said five tracts, and received a deed of conveyance, dated 2d of May, 1792. It turned out, that according to the lines marked upon the, ground, the five surveys contained several hundred acres more than the returns called for, and both the plaintiff and defendants had considerably more land, than was supposed when they purchased of Matlock. Their dispute was concerning their boundaries, and particularly as to the situation of a corner pine tr'ee. The defendants offered to prove, by the oath of Robert Moore, that in the year 1788, .at the request of Matlock, (who was in search of'the line between the land he had sold to Hauser, and his other land,) he showed him this corner pine, and that Matlock said, that would do, and ran from it, on an eastern course. They also offered to prove, by the same witness, that at the time he showed the pine to Matlack, Hauser was in possession of theftracts in the name of Jones and Catharall, which he had purchased of Mat-lock, and had made valuable improvements on them.' To this evidence the plaintiff objected, and the court having admitted it, he excepted to their opinion.
    The defendants offered in evidence, the deposition of Joshua Elder, which stated, that the deponent was appointed a deputy surveyor in the then county of Cumberland, now Indiana county, in the'beginning of the year 1769, and acted in that capacity until the revolution, after which, he was appointed deputy surveyor of the same district, and continued in that office until the year 1790: That during the time he acted as deputy surveyor, it was customary to include much larger quantities of land in surveys, than were mentioned in the warrants: That he frequently surveyed two hundred acres on a warrant for one hundred acres, and never had any difficulty in having the return received in the surveyor general’s office, provided the land was vacant, and there were no interfering claims, and that he never had occasion to throw off any part of a survey, when making his return, although he often included in it double the quantity mentioned in the warrant. The admission of this deposition in evidence was objected to by the plaintiff, but the court permitted it to be read, and an exception was taken to their opinion. •
    
      Potter and Burnside, for the plaintiff in error,
    argued, that the testimony of Robert Moore, ought not to have-been received, because it contradicted a deed. He swore that Hauser purchased the tracts in the name of Jones and Catharall, before the year 1788, in the face of Matlock’s deed, which bore date 2d of March, 1795. Besides, the boundary, proved by Moore to have been recognized by Matlock, contradicted the deeds made by him to Hauser, and to Benner, the latter of whom purchased of Matlock in 1792. Matlock, moreover, did not point out the pine as a boundary, either to Hauser or to Benner, neither of whom was present, nor indeed to any one else. Moore showed it to him, and he merely said, it was very well, and ran a course from it. Such an observation, under such circumstances, is no evidence of boundary.
    The deposition of Joshua Elder was not relevant. If it proves any custom of the land office, it is a custom to receive returns of survey of more land than is included in the warrants. But here the return was not of more land than the warrant called for, with the usual allowance, but the lines marked on the ground, embraced five hundred acres more than the returns called for, and it was the defendants’ object to show, that a survey, containing within the marked lines, more land than appeared by the draft returned, would have been accepted; a position, which the evidence did not tend to establish. This deposition was liable to another objection. It did not prove a general custom of the land office, but only what was done in respect to the particular surveys, made by the deponent himself. Nor was it the best, evidence even of this, which the nature of the case admitted of. The surveys returned by the deponent into the land office, might have been had, and should have been produced.
    
      Hale, Blanchard and Carothers, for the defendants in error.
    The plaintiff claimed part of the surplus land included in the five surveys belonging to Matlock, from whom both parties derived title. The question was one of boundary. We contended, that the land in dispute, was not within the marked lines of the plaintiff’s survey, and that it was within those of the defendant’s survey on CatharalVs warrant. The situation of the pine tree was the material question. The plaintiff’s deed from Matlock, of 22d of May, 1792, calls for the Jones tract as belonging to Jacob Hauser, beginning at a marked pine, and running due* east; and we offered to prove, that Hauser was living on the Jones tract in 1788, having purchased it of Matlock: That Matlock was shown the p>ne tree, the beginning of the Jones tract, and that he expressed himself satisfied, and ran a due east course from it. We had a right to prove by parol, that Hauser was in possession of the land in dispute, had made improvements on it, and had purchased it. He might have purchased of Matlock before 1788, by parol, and taken possession, or have held by articles of agreement, though he did not receive a deed until 1795. The confession of Matlock, therefore, under whom the plaintiff claimed by deed subsequent to that confession, was clearly evidence of boundary. It admitted the situation of the pine tree, upon which the whole controversy depended. Caufman v. The Congregation of Cedar Spring, 6 Binn. 59. Hamilton v. Menor, 2 Serg. fy Rawle, 70.
    
    
      There was a mistake in the returns of the five surveys belonging to Matlock, there being five or six hundred acres embraced by the lines on the ground, more than appeared by the returns. Of this surplus, the plaintiff has one hundred and fifty-nine acres, but is dissatisfied because Hauser has more. His object is to get half of the surplus. But there was a surplus of seventy-four acres in one survey, as returned, and it was to show the defendants’ right to this, and not to the large surplus, on the whole return, that the deposition of Mr. Elder was offered. The object of it was, to show the custom of the land office, to accept surveys containing a surplus, provided there was no intervening right. It has long been the practice of the courts of Pennsylvania, to receive evidence of the custom of the .land office. Lessee of Forbes v. Caruthers, 3 Yeates, 527. Merchant v. Millison, 2 Sm. L. 165. Peakes Ev. 190, 191.
   The opinion of the court was delivered by

Tiighman, C. J.

I think the evidence of Robert Moore was properly admitted. The plaintiff claims under Matlock by purchase since the year 1788. The admission of the pine tree by Matlock, as Hauser’s boundary, in 1788, was evidence, therefore, against the plaintiff, Matlock being dead at the time the evidence was given. It is objected, that Matlock knew nothing of tlye tree himself, but took his information from Moore, the witness. The evidence was not conclusive, but as every man is supposed to know something of his own affairs, it was of some weight, that Matlock acquiesced in Moore’s intimation, and ran from the pine which was shown him, considering it as a boundary. Another objection to the testimoney of Moore was, that it contradicted the deed from Matlock 1,0 Hauser. Moore swore, that Hauser was in possession, and had purchased from Matlock, prior to the year 1788; whereas, the deed bears date in 1795, But there is no contradiction in this. Nothing is more common, than a contract for sale of lands, many years before a conveyance is executed. The purchaser is let into possession, improves the land, and gets his deed when he has paid the purchase money, or given good security for it. Moore proves, that the possession was in Hauser. That was a notorious fact, in which he could not be mistaken, and the subsequent conveyance from Matlock, makes it highly probable, that the contract of sale was made before Hauser went to the expense of making improvements. Valuable improvements in tracts of vacant land, in an unsettled country, are not commonly the work of tenants.

The plaintiff took another exception to the admission of the deposition of Joshua Elder. This deposition proved, that Elder was appointed a deputy surveyor under the proprietaries, in 1769, and served in that office until the revolution, when he was again appointed under the state government, and remained in office, until the year 1790; and that during that time, he frequently returned surveys containing much more than the warrants called for, and there never was any difficulty, as to the acceptance of them, where there was no interference with the claim of any other person. Parol evidence of the custom of the proprietary land office, has been often admitted ; and this custom is made up of a number of particular facts. To be sure, the surveys of which Elder speaks, might have been procured from the land office. But the great trouble and expense of making out a custom in that way, has induced the courts to make a small relaxation in the strict law of evidence. It is not much longer, that evidence of customs prior to the revolution, will be had, from the mouths of living witnesses. No ill consequence can result, therefore, from continuing the practice which certainly has prevailed, of permitting testimony of this bind to go to the jury, who will give it such weight as they think it is worth. But there was one particular objection urged against Elder’s testimony, viz: that although, in general, parol evidence of custom has been admitted, yet it ought not to be suffered in this case, where the quantity of surplus land was so great, and so contrary to the written orders of the board of property. To this objection the defendants’ counsel answered, that it was material for them to prove title to the tract in the name of Isaac Catharall, which contains a surplus of only seventy-four acres; so that the evidence would be good for that purpose, without applying it to the larger quantity of surplus contained in the exterior lines of the five contiguous surveys, owned by Matlock. This answer meets the objection. The plaintiff’s counsel might have asked the defendant for what purpose he offered the evidence, and then he would have been held to the point for which it was offered. But, having objected to the evidence generally, all that is incumbent on the defendant is, to show that it was proper for some purpose

I am of opinion, on the whole, that there is no error in the record, and therefore, the judgment should be affirmed.

Duncan, J, gave no opinion, having been counsel for the plaintiff in error.

Judgment affirmed.  