
    *Henry Izard v. Samuel Montgomery.
    The location established by the jury will not be disturbed by the Court, where the question is doubtful, unless there be manifest error, 
    
    A reference in a deed to a will, not executed according to the statute of frauds, will have the effect of incorporating it with and making it a part of the deed. 
    
    Where the question of location is so nearly balanced as to render it difficult to determine the true location, a line run by compromise may be regarded as evidence of it.
    
    This was an action of trespass to try titles, tried before Mr. Justice Johnson, at Lancaster, Pall Term, 1818.
    There was no objection to the plaintiff’s title, except one which arose out of the following circumstances : John Davis, the grantee, and in whom the legal title was, made a deed to the executors of his son, Robert Davis, then deceased, in trust, to be disposed of agreeably to the will of the said Robert Davis. This will was intended to malte a disposition of the land, but it was attested by two witnesses only, and there was no evidence that the legal estate in the lands was ever in him.
    The plaintiff’s grant covered the land described by the lines in the plat, by the letters E, F„ (?., IL, J., K., L., and the defendants claimed the lands described by the lines marked A., B., E., D., and the question as to location was, whether the defendant’s grant, which was the oldest, covered the land lying between the lines marked A., E., and A., M., and within the plaintiff’s grant. If it did, then he was not a trespasser, and the plaintiff was not entitled to recover.
    The surveyors on both sides agreed that the corner at A., was found, and a line running from thence to B., at a variation of three degrees to the left from the original course, where they found the corner called for, considerably shorter than the distance. That they found marked trees from this corner '^on the line to E,, nearly to the point M., but none beyond it, on a course varying twelve degrees to the right of the original. That the corner at D. was found, and a station, marked of a date corresponding with the grant, was also found at P., and a line tree not far from it, both of which were in the original course from D., and were shown as the boundary of the defendant’s grantee. A stump was also pointed out to them at E., as the corner of defendant’s grant.
    A witness, on the part of the plaintiff, swore that the grantee of the defendant’s land had pointed out to him the corner E. and the station F., and the tree near it, as the boundary of his land, nearly thirty years ago, and that he had known and recognized them as such ever since. And it was admitted on the part of the plaintiff, that the grantee under whom he claimed, had spoken of the corner at E. as the corner of defendant’s grant.
    It was also in evidence that when the plaintiff was in treaty for the purchase, he refused to enter into a contract, unless Dunlap, of whom he purchased, and the defendant, would settle the question of boundary between them, and that they finally agreed to do so by dividing the disputed land, and under that agreement, which was not reduced to writing, they run the line from E. to 0., with which the defendant expressed himself satisfied, and Dunlap sold and conveyed to plaintiff accordingly. The variation of the line E., D., from the original course was four degrees. It was not known, at the time of this compromise, where the corner 1>. stood.
    For the defendant, it was insisted that the true location of the defendant’s grant, was by running a direct line from E. to D. 1st. Because the original grant exhibited no angle between those points, and those points were established, D. beyond controversy, and E. by the admission of the parties who before claimed the land. 2d. Because, by allowing one degree of variation more on this line than was found *to exist on the opposite and corresponding line, the corner would answer. And assuming the position that this was the true location, it was contended that the line of compromise was made without a knowledge where the corner D. stood, and ought not therefore to prejudice the defendant, and that, at any rate, it was void under the statute of frauds.
    To these arguments it was replied, on the part of the plaintiff, that this was not the true location. 1st. Because the right to allow a variation depends on the fact of the variation of the needle itself, which may be, in some measure, determined by the length of time, and by the actual variation of marks apparently correctly run; but that none of these data could produce the result contended for, as on one line a variation of three degrees on the left, and on the other twelve degrees to the right, was found to exist; and to allow this location a variation of four degrees must be sanctioned on the third, and only remaining line. 2d. Because there was the same evidence that the station P. was the boundary of defendant’s grant, as that the corner E. was, with this difference in favor of the station, that it was found upon examination to correspond with the date of the grant. And even admitting that both wore established, yet on the well settled principle that actual marks will control the course, they were bound to go to it, although it might make an angle in the line. But it was only to suppose that the parties might have been mistaken in the fact that E. was the corner of the defendant’s grant, and there would then be a location consistent with the. grant, by closing the lines at M., which would give the defendant a greater distance on the line B., E., than was called for. And in answer to the argument that the line of compromise was made by the defendant without a knowledge of his rights, being ignorant where the corner D. stood at the time, it was said that in the absence of this corner, and establishing E. as the true corner, the course would carry them to *jV, so that, by this agreement, the defendant proposed to give up more land than he would have done upon the finding of the corner B. '
    The case went to the jury,, and they found a verdict fnr the plaintiff, establishing the line B., M., as the boundary of defendant’s grant. But upon the suggestion of the Court, that the plaintiff had declared only for the land included in the line E., 0., and could not recover beyond it, they amended their verdict accordingly.
    The defendant moved for a new trial and nonsuit on a variety of grounds, which altogether, however, presented but three questions :
    The 1st. Controverted the correctness of the verdict in relation to the location of the defendant’s grant.
    2d. Because the will of Robert Davis, under which the executors sold and conveyed the lands claimed by the plaintiff, not having been executed in the manner required by law, the deed from John Davis to them, referring to this will, gave them no power to do so.
    3d. Because the evidence on the subject of the line of compromise, being parol, was inadmissible, and the Court erred in charging the jury, that the parties were bound by it.
    
      
      
         Peay, Executor of Peay v. Briggs, Columbia, Fall Term, 1819. (2 vol. 184.)
    
    
      
      
         Roberts on Frauds, 338, note 122.
    
    
      
      
        Jackson v. Vedder, 3 John. Rep. 12. Jackson v. Dieffendorf, 3 John. Rep. 270. Jackson v. Vedder, 2 Caine’s Rep. 210. R, 1 Sp. 192.
    
   This case was tried before

Mr. Justice Johnson,

who delivered the opinion of the Court.

Is. The question of location went to the jury, after very able arguments on both sides, aided by the views which the Court took of the very great variety of facts which the case presented, and they have determined it impartially, and in all probability, correctly ; at least the Court cannot see that manifest error which would entitle the defendant to a new trial.

*2d. Sround is predicated upon a mistaken view, as it appears to me, of the facts out of which it arises. The executors of Robert Davis do not pretend to derive their power to dispose of the land from his will. It could give them no such power; it was not executed agreeably to the statute of frauds, and was therefore insufficient; but he had no title, and could not therefore authorize them to convey. It is from the deed of John Davis, in whom the. legal estate was, that they derived their power. It is true, that, in directing the uses, he referred to this will; and so he might have done to any other instrument, however imperfect or insufficient it might of itself have been to pass the property. The reference to the will in the deed, had the effect in law of incorporating it with, and making it a part of, the deed itself; so that in fact the will of Robert Davis was the deed of John Davis.

3. The evidence objected to as inadmissible, in the third ground, was not objected to on the trial below. I think, however, that, notwithstanding it was verba], like all other evidence in relation to location, it was admissible ; without it, it would be impossible ever to locate any grant. The paper cannot point to the spot, where the marks of location stand, and it must of necessity be proven by some person who saw it, and in this view the evidence was certainly admissible. On the subject of this evidence, I did not charge the jury, as is supposed in the brief, generally, that the defendant was bound by his compromise, but, that where the question of location was so nicely balanced, as to render it difficult, if not impossible, to determine with precision where the true location was, they might regard it as evidence of the location, and especially when, by dividing the disputed land, they had fixed on a principle most likely to answer the ends of justice ; and if they were satisfied beyond controversy, that the true location gave the land to the defendant, he was not bounded by it, as he had not parted with the title in *the manner directed by law, which requires, that it should be done in writing ; and I yet entertain the same opinion. Whatever view may be taken of this question, it cannot avail the defendant; because, by the verdict of the jury, it appears, that they were uninfluenced by it, as they established the defendant’s location far short of this line.

Williams, for the motion. W. F. Be Saussure, contra.

The motion must therefore be discharged.

Colcock, Nott, Cheves and Gantt, JJ., concurred. 
      
       Seo 2 MoM. 47, 79 : 1 Rick. 384: 6 Rich. 90.
     
      
       287-8.
     