
    Elbert Marsh v. William Stephenson.
    Where lots adjoining each other on the east and west sides were sold at the same time to different purchasers, the sales being made by numbers and by reference to a recorded plat; the division lines not being fixed by stakes, or otherwise actually marked; and where the deed of the one- grantee fixed the location of his lots by reference to a known and fixed monument on the west, whilst that of the other grantee fixes the location of his lots by reference to another fixed monument on the east, and each of the deeds described the respective lots as being of the width indicated by the plat, more or less; but *upon actual admeasurement of the ground, the width thus assigned to the lots severally will not make them meet, while the plat shows that they were intended to meet, and that the grantor intended to sell the whole premises; the surplus ground ascertained to exist will be divided between the grantees in proportion to the lengths of their respective lines, as shown by the plat and stated in their deeds.
    ■In error to the district court of Hamilton county.
    The controversy in this case relates to a question of boundary between lots owned by the parties respectively.
    
      Under an order of sale, made in a proceeding in chancery, the sheriff of Hamilton county, acting as a special master commissioner, made a subdivision of several squares of ground in Cincinnati, belonging to the estate of Samuel Betts, which subdivisions he platted and placed upon record. One of these squares, known as No. 8, is shown by the plat to be bounded on the north by Everett street, on the east by John street, on the south by Clinton street, and on the west by Cutter street. This square was subdivided into sixteen lots, lying in two tiers of eight lots each; the northern tier fronting ■on Everett street on the north, and the southern tier upon Clinton street on the south. The lots were numbered progressively from west to east. The northern tier embraces Nos. 1 to 8 inclusive; and the southern tier Nos. 9 to 16, inclusive; so that Nos. 1 and 9 are bounded by Cutter street on the west, and Nos. 8 and 16 by Jobn street on the east. All the lots in the northern tier are represented by the plat as having each a front of fifty feet on Everett street, except No. 8, to which a front of twenty-five feet is assigned. Those in the southern tier are represented as having each a front of fifty feet upon Clinton street, except No. 16, which has a front of seventy-nine feet eight inches. The oblique direction of John street makes the square wider on the south than on the north, and gives a trapezoidal form to lots 8 and 16, while the other lots are rectangular parallelograms. The sheriff had these lots appraised, and sold them at public auction, in March, 1838. ' At this sale Marsh bought lots 8,15, and 16, and Stephenson purchased all the other lots in the square; and deeds were made by the sheriff *to the respeptive parties, agreeably to the order of the court made u]Don the confirmation of the proceedings.
    May 21, 1838, the sheriff made his deed to Stephenson, for-lots 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, and 14, “the lots being platted” [says the deed] “ and numbered by said sheriff, as per plat on file in said cause, and on record in the recorder’s office of Hamilton county; said lots measure fifty feet more or less in front, and those fronting on Everett street are one hundred feet deep, and those fronting on Clinton street are ninety-nine feet deep.”
    May 29, 1838, the sheriff made a deed to Marsh. “ The lots,” says that instrument, “ being platted and numbered by said sheriff, as per plat on file in said cause, and on record in the recorder’s office of Hamilton county; said lot, No. 8, measuring twenty-five feet, more or less, front on Everett street, and one hundred feet deep; and lot No. 15 being fifty feet, more, or less, front on Clinton street, and ninety-nine feet deep; and lot No. 16 being seventy-nine feet eight inches, more or less, front on Clinton street, and ninety-nine feet deep.”
    In making this subdivision of square No. 8, the division lines between the lots were not staked out, and they were sold by their numbers, and by reference to the plat. Step>henson’s six lots, Nos. 9,10, 11, 12, 13, and 14, according to the plat, have an aggregate front upon Clinton street of three hundred feet; while, by the same plat, Marsh’s two lots, 15 and 16, have a front of one hundred and twenty-nine feet eight inches upon the same street; thus making the whole southern boundary line of the square, from Cutter street on the west to John street on the east, four hundred and twenty-nine feet eight inches. But this line is found to be in fact about ten feet longer than the plat indicates.
    This produces a surplus of land which has brought into question the location of the line dividing their respective premises, that is to say, the division line between lots 14 and 15. Stephenson not being aware of this surplus, seems to have taken possession of but three hundred feet front upon Clinton street, but upon learning the facts, he brought an action of ejectment in *Oetober, 1846,-for all the lots conveyed to him by the sheriff, simply following the description in his deed. Marsh, though served with notice, did not enter into the consent rule, and judgment was rendered against the casual ejector.
    A writ of habere facias possessionem was thereupon issued, and Stephenson, claiming to have been thereby put in possession of the premises up to a line three hundred and seven feet three inches east of Cutter street, moved the line fence, which had been previously erected by the plaintiff, eastward to that place, still leaving Marsh in possession of one hundred and thirty-two feet nine inches front; whereupon, Marsh brought an action of trespass, quare clausum, fregit, against Stephenson. Upon the. trial'of this cause, the court of common pleas held that Marsh’s deed invested him with title to all the property described in said subdivision east of a line three hundred feet east of Cutter street, and rendered judgment thereupon for the plaintiff. This ruling and judgment of the common pleas was, upon error, reversed by the district court. The present petition in error seeks to reverse the judgment of the district court.
    
      
      Caldwell & Paddock, and B. B. Warden, for plaintiff in error,,
    cited Pierce v. Faunce, 37 Maine, 63, and cases cited, and Brown v. Gray, 3 Greenl. 126, to show that the words “ more or less ” in the-deeds, do not affect the description as taken 'from the plat.
    
      Fox & French, for defendant in error,
    cited Lincoln v. Edgeconrt, 28 Maine, 279, and Brown v. Gray, 3 Greenl. 129, to show that the surplus must be divided between the parties; and Wyatt v. Savage, 11 Maine, 431, to show that if quantity falls short, it must be borne by each owner; and Wolf v. Scarborough, 2 Ohio St. 363, as sustaining each of these propositions.
   Scott, J.

If Marsh, the plaintiff, is entitled to hold all the surplus ground in square number 8, then the district court erred in reversing the judgment of the common pleas; but, if he *is not entitled to any of it, or only to a pro rata share of it, then the judgment of the district court must be affirmed; for it is not claimed that Stephenson, by the alleged act of trespass, appropriated more than a pro ruta share of the surplus. The testimony shows that Stephenson has only occupied to a line three hundred and seven feet three inches east of Cutter street, and that between-this line and John street, Marsh has in his possession one hundred and thirty-two feet nine inches. Is he entitled to more ? We have-no doubt either as to the law or equity of this case. Neither of the parties acquired a right superior to that of the other in respect to-this surplus, by their deeds, by the recorded plat referred to in their deeds, or by the description accompanying the return of theappraisement of the several lots, made by the sheriff and freeholders, prior to the sale.

In all these evidences of title they stand on an equal footing. The description in the appraisement gives to each of Stephenson’slots 9, 10, 11, 12, 13, and 14, a front of fifty feet on the north side of Clinton street, making in all a front of three hundred feet; and-also gives a definite location to these lots by a reference to a fixed monument, to wit, the northeast corner of Clinton and Cutter-streets.

The same description gives to Marsh’s lot number 15, a front of fifty feet, and to number 16 a front of seventy-nine feet eight inches on the north side of Clinton street, making an aggregate front of one hundred and twenty-nine feet eight inches, and gives to the premises a definite location by bounding them on the east by John street, an equally fixed monument. The plat gives to each of Stephenson’s lots a width of fifty feet; and to Marsh’s lot 15, the same width of fifty feet; and to 16 a width of seventy-nine feet eight inches. The lots were all sold by numbers, at the same time, by inference to the plat; and, as would seem from the evidence of the sheriff, were each sold as being of the width indicated by the plat, more or less. The deeds, executed by the sheriff to the parties, are similar; they each describe the lots by numbers, and by reference to the same plat; they each assign to the several lots the width or front indicated by the plat, with the addition of the words “more or less.”

*The plat includes all the ground between Cutter and John streets, and there can be no doubt that it was all intended to be sold.

There were no stakes fixing the division lines of the lots, and the words “more or less ” in the deeds, together with the face of the plat, render it certain that the whole was intended to pass by the sale and conveyance. Under these circumstances, it would seem equitable that the surplus should be ratably apportioned between the grantees. And tó this effect are the authorities. Lincoln v. Edgecourt, 28 Maine, 279; Brown v. Cray, 3 Greenl. 129. If the quantity falls short, each grantee must sustain his portion of the loss. Wyatt v. Savage, 11 Maine, 431. The same principle has been, settled in Wolf v. Scarborough, 2 Ohio St. 363. And the manifest equity of the rule must command approbation.

But were it otherwise; if Stevenson takes nothing by his deed but the three hundred feet represented on the plat, the same rule must limit the plaintiff Marsh to one hundred and twenty-nine feet ■eight inches, for he stands on the same ground, and must be governed by the same plat. This would give the surplus to Betts, and would be equally fatal to the plaintiff’s claim.

We are unable to see, either in the trapezoidal form of lots 8 and 16, or in the numbering of the lots from west to east, any substantial reason for changing the equitable rule. The same rule of construction must be applied to the deeds of each party.

It is unnecessary, therefore, to inquire how far the claim of Stephenson was strengthened by the proceeding in ejectment.

Judgment of the district court affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Sutlife, JJ., concurred.  