
    Royal Makepeace versus Alpheus D. Bancroft.
    If a conveyance of land refer for its boundary to a monument not actually existing at the time, and the parties afterwards fairly erect such a monument, intending to conform to the deed, the monument so placed will govern the extent of the land, although not entirely coinciding with the line described in the deed.
    This was an action of covenant broken, brought upon a deed made to the plaintiff by the defendant on the 22d day of May, 1809, purporting to convey to him in fee, “ a certain piece of land in Cambridgeport, measuring on Worcester Street twenty-two feet and a half, and keeping the same width seventy feet, back to another way, with all the privileges and appurtenances to the said lot belonging, meaning to convey thereby the same lot which was conveyed to the said grantor by John M’Neil, by his deed dated October 29th, 1807, including one half of the brick wall mentioned in the deed last aforesaid.” The declaration sets forth two covenants, contained in said deed, namely, that the grantor was lawfully seized in fee of the premises, and that he had good right to sell and convey the same as aforesaid ; and alleges a breach of both these covenants.
    The defendant pleads that he was seized, and had good right to convey, &c., according to his covenants. The plaintiff replies, that, at the time of executing the said deed, one Benjamin Whitman was seized in fee of the premises, and that he alone had good right to convey, &c., and traverses the seizin and right of the defendant. The defendant rejoins, maintaining his plea, and tendering an issue, which is joined.
    This issue was tried at the sittings here after November term, 1813, before Jackson, J., from whose report of the trial it appears, that the action was brought to recover the value of one half the brick wall mentioned in the declaration, with the land under the same ; the grantor’s title to the residue of the premises being undisputed.
    [* 470] * It was in evidence, that Noah Porter, on the 8th of January, 1806, was seized of the lot in question, and of another adjoining lot of equal dimensions, and on that day conveyed the lot in question to Abijah Ruggles, and the other to Oliver Willet. On the 4th of March, 1806, Willet conveyed his lot to Martin Sikes. On the 18th of July, 1806, Ruggles and Sikes agreed to exchange their lots, and, at the same time, Sikes agreed to sell the lot, which he was to take on that exchange, to John M’Neil. Accordingly, Sikes, on that day, conveyed the lot which he then held, to Ruggles, and Ruggles on the same day conveyed his lot to M’Neil. Porter, at the time of the conveyances above mentioned, was the owner of a third lot .adjoining that sold by him to Willet, 
      on which was a brick house ; and in his deed to Willet, he included m the premises granted, the one half of the wall of that house ad joining Willet’s lot.
    In July, 1806, there was no building on either of the other two lots ; but Ruggles then intended to build á brick house on the lot which he received in exchange, and, in his said deed to Af’AKZ, after describing the lot so conveyed to him by Porter, he added, “ I do also convey to the said JW’Neil, the one half of a brick wall that I hereby engage to erect on the adjoining lot now owned by Mr Sikes, which the said Sikes is this day to convey to me.”
    There was no money paid between Ruggles and Sikes, nor any other consideration for their two deeds, but the exchange aforesaid ; Sikes conveying to Ruggles one half the brick wall already built by Porter, and mentioned in the said deed to Willet; and Ruggles undertaking to convey to the said appointee of Sikes, one half the wall which he engaged to build as aforesaid. Both these deeds are subscribed by the same witnesses, acknowledged before the same magistrate, and registered on the day of their date ; and the said Ruggles testified that they were both executed at the same time. In October, 1806, Ruggles built a brick house on his lot, and, as he testified, he intended to place one half of the wall adjoining to McNeil’s lot on the land of JVPNeil. There was, at the time, a stake at the street on the * line between these two lots, and he [ * 471 ] endeavoured or intended to place the centre of said wall at that stake ; but it appeared by actual admeasurement, lately made by another witness, that the whole of this wall was within the boundaries of Ruggles's lot, as described in said deed. On the 29th of October, 1807, JW’Neil conveyed the lot in question to the defendant, Bancroft, describing it as before, referring to Ruggles's deed to him, and adding these words, “ including the one half of the brick wall mentioned in said deed.” On the 22d of May, 1809, the defendant conveyed the same lot to the plaintiff by the deed declared on, describing it as in the declaration.
    On the 17th of April, 1807, the said Ruggles conveyed the lot, on which he had built said house, to Phineas Brown, describing it as “ a certain tract or parcel of land lying in Cambridge, with a brick dwelling-house thereon, bounded and measuring as follows,” and then bounds it on one side by land formerly owned by himself, and which he had conveyed to M’Neil, and states the same courses and length of line as in the former deeds, and such as would include the whole of the wall in question in the premises granted. On the next day Brown conveyed the same lot, by a like description, to M. R. Bartlet. On the 20th of the same April, Bartlet conveyed the same lot, by a like description, to Benjamin Whitman, and on the 5th of August the said 'Whitman conveyed the same, by a like description, to the plaintiff, Makepeace.
    
    The defendant insisted, first, that, on this evidence, it appeared he was seized of the peace of land in question, and had a good and indefeasible title thereto, at the time of his conveyance thereof to the plaintiff; but if not so, then, secondly, that he was lawfully seized thereof in fact at that time, and had a good right to convey, and did convey the same by his said deed to the plaintiff; in which case, the plaintiff could not recover'in this action, but, if evicted, must bring his action on the covenant of warranty.
    The judge, intending to reserve these questions for the consideration of the whole Court, directed the jury to find a [*472] * verdict for the plaintiff, which was accordingly rendered, subject to the opinion of the Court on the two points above stated. And, if the Court should be of opinion with the defendant on either of these questions, the verdict was to be set aside, and a .verdict entered for the defendant.
    An argument was had at the last November term, by Peabody, for the plaintiff, and Bigelow, for the defendant
    ; and at this term the opinion of the Court was delivered by
   Parker, C. J.

[After stating the pleadings, and the facts from the judge’s report of the trial.] The titles to both the lots being now united in the same person, no difficulty can arise about the wall hereafter, unless the plaintiff should himself choose to make one. His action is, however, probably founded upon the supposition, that, in his purchase of the defendant, he has paid for a wall, which he could not enjoy without extinguishing the title of Brown, and those claiming under him ; and that he ought to recover back that portion of the purchase-money, which was given in payment for that portion of the premises. And this would be just, if it should appear that the defendant conveyed to him what he had no title to, or, rather, as relates to the covenants declared on, what he was not seized of, and what he had no right to sell ; although he had, in such case, been himself deceived, and would be driven to his action against M,Neil, and M’Neil against Ruggles, who committed the first error, evén he supposing and believing that the several conveyances derived from him gave the grantees the property in the wall, which it was hts in-" tention to convey.

But we apprehend that this troublesome and expensive series of actions may all be avoided, and the plaintiff left in the full enjoyment of his rights, by an application of the principles of law to the conveyances and acts of the parties in this transaction.

It is manifest by the deed of Ruggles to McNeil, that, although he sold the lot by admeasurement, yet, that he intended that a permanent monument should be erected, which was to be a brick wáll he •was about to build, up to which *the lot conveyed was to [*473] extend. Afterwards the intended monument was erected, but by accident a little removed from the line of admeasurement. As this wall was an essential part of the consideration in the exchange made with Sikes, and as he bought with a design to comply with his own contract with Sikes, it is very clear, that, had M’Neil immediately built upon the lot conveyed to him by Ruggles adjoining to this brick wall, Ruggles could have taken no exception to it, nor could he have maintained a writ of entry or an action of trespass against him ; for his deed would have estopped him to claim any thing beyond the wall so built. M'Neil, indeed, must be considered as having become lawfully seized, under his deed from Ruggles, of the lot limited on one side by the centre of the wall of Ruggles’s house ; because it was the intention of Ruggles so to grant to him ; and the monument referred to in the deed, although set up after the delivery, will conclude the grantor, even though it should not comport with the lines specified in the deed. Thus, if a deed of land should pass at a distance from the premises granted, and reference should be made to a stake and stones for the termination of one of the lines, no such monument actually existing ; and the parties should afterwards fairly erect such a monument, with intent to conform to the deed, we think the monument so placed would govern the extent, although not entirely coinciding with the line described in the deed.

We are, therefore, of opinion that JW’JVeiZ was lawfully seized of the lot, so as to include one half of the wall, which Ruggles built for his use, and, being so seized, had a right to convey the same ; and of course the defendant became seized in like manner by the conveyance of «/If’JVHZ, and continued so seized until he parted with his title to the plaintiff. Whether this seizin was an indefeasible one or not is immaterial in the present action. But we are inclined to think that it could not be defeated by Ruggles, or by any person claiming under him. For by a conveyance of his other lot, on which the house was built by him, no right could pass * against JH’Neil or the defendant, to any thing of which [*474] he was disseized at the time ; and he might be estopped by his deed to claim for himself.

In this view of the subject, the plaintiff fails to support his action ; because no breach of the covenant declared on is proved. The defendant was seized when he made his deed, and therefore had a right to sell. If an eviction should afterwards take place, the plaintiff would have his remedy upon his covenant of warranty. At present he is undisturbed ; and he is likely to remain so ; for he has purchased up the only title which could disturb him ; and there is upon the whole no probability that he paid any thing to extinguish the doubtful claim, which he supposes now to exist in Brown, who was the immediate grantee of Ruggles, of the lot which is thought to be encroached upon by the successive owners of the other lot.

The verdict returned for the plaintiff must be set aside, and a general verdict entered for the defendant, and judgment accordingly. 
      
      
        Davis vs. Rainsford & al., 17 Mass. Rep. 212. — Vide Rockwell vs. Adams, 7 Cowen, 76.— Clarke & al. vs. Graham, 6 Wheat. 577. — Jackson vs. Hubble, 1 Cow. 613. — Schauber vs. Jackson, 2 Wend 14. — Hopburn & al. vs. Auld, 5 Crunch, 262. Quære, How can a paroi agreement, unless followed by great length of possession according to it, establish a boundary line between two parties, contrary to the express terms of t ie deeds under which they claim ?
      
     