
    Wilson vs. Hudson’s lessee.
    When there is doubt about tho boundary lino of a tract of land, tho claimants may fix the boundary by a verbal agreement.
    WhareB, the grantor, marked and claimed a white oak as his corner, at Craig’s spring, and W, the purchaser under him, claimed the tree at. the spring as his corner, and advised H to enter the land east of it, which he did: Held, that W was estopped to deny Ihe tree at the spring as his corner, although he might be able to show that the true corner was at another place.
    If a person entitled to thirty days written notice from an entarer of land under the act of assembly of 1824, ch. 22, admit that he has had notice, or assent to the entry, being present when the same is made, it is a waiver of his right to notice, and is sufficient without notice in writing.
    The fact, whether one about to enter land in the possession of another, gave the person in possession thirty days written notice of his intention to enter, may be proved either by positive or circumstantial evidence; and being present when the entry is made, advising and assisting the same, is evidence that such notice was given
    The statute of limitations does not run against the state, and therefore where the defendant had been in possession of the land in dispute under a deed for more than seven years, yet he can only compute the time from the inception of the title of the grantor from the state.
    In this case, the lessor of the plaintiff claimed title under a grant to himself for one hundred and seventeen acres, dated the 20th of September, 1827. The entry upon which the grant issued, was * not read, but was recited in the grant to have been made on the 25th of April, 1826, pursuant to the provisions of an act of the general assembly, passed on the 22d November, 1825, and acts supplemental thereto.
    The defendant claimed to have a better title, by virtue of a grant to Stephen Barton for two hundred and seventy-four acres, dated the 17th of June, 1816, and mesne conveyances to himself. It was proved, that the defendant had been in possession of the disputed land for more than seven years before the commencement of this suit, which was the 3d of February, 1834. The plaintiff insisted, and introduced evidence conducing to prove, that the beginning corner of Barton’s grant was a white oak and ash at Craig’s spring. If this was. the corner of Barton’s grant, to run south from thence, according to the calls of the grant, would not in-■elude the land in dispute, which land is covered by plaintiff’s grant.
    The defendant insisted, and introduced evidence conducing to prove, that Barton’s beginning corner was on a white oak and ash, at a sink hole; th^ land south from which, would include the land in dispute, of which' defendant 'had possession at the commencement of this suit, •and when plaintiff entered it. The plaintiff introduced evidence to prove, that Barton, under whose grant‘defendant claimed, had said that his beginning corner was at Craig’s spring, and that he had advised the lessor of the plaintiff to enter the land covered by his grant, telling him that his calls did not cover it, that it was vacant, and that' he. had bought to the o'ld corner of Craig’s, at Craig’s spring., He also proved, that Wilson the defendant star ted, he had loaned Hudson the money to pay the state for the land, and that he was present when .the entry was filed, and said he had notice from Hudson of his intention to' enter the land, 'and assented to -the entry. The court charged the jury, “that in order to ■ establish when the grant to Barton for two hundred and seventy-four acres was originally surveyed, you are to look’ to the proof, and in the absence of direct evidence, you will examine- whether it was surveyed from the white oak and ash at Craig’s spring, or at the white oak and ash at the hollow east of Craig’s spring. Does the-proof satisfy you, that trees such as are hailed for'in the grant, once stood at the northwest corner of the tract marked as corners? Are you satisfied, that running south, from these trees the distance called for, trees once stood marked as a corner which is called for in the grant? And- did these trees stand the distance represented in the grant, from the white oak and ash claimed by defendant as the beginning ? *n runn*nS south from the beginning, as claimed by the defendant, the distance called for, will you comer upon trees such as the grant calls for, and trace an old line to that corner? If so, such facts afford evidence the grant was originally surveyed, beginning at that white oak and ash. 'You will also examine and see whether if the survey had been made, beginning at the white oak and ash, at Craig’s spring, the tract would lie upon the creek, or the waters of the creek — if it would lie upon the creek, or the waters of the creek; if it would lie upon the waters of the creek, by beginning at the white oak and ash claimed by defendant, and would lie upon the main creek by beginning at the white oak and ash at Craig’s spring, these are circumstances to look to, to fix the boundary. You will also examine whether S. Barton and the defendant always claimed the white oak and ash at Craig’s spring, as the beginning corner of said survey; whether said white' oak and ash have been a long time represented in the neighborhood as the beginning of said grant; and after balancing all the proof given upon the boundary, upon whatever side the weight of the proof should lie, and whichever of these points of beginning you are satisfied is the true one, you will fix it at that place. But defendant insists, that although the grant to Barton, and his deed, may begin at the white oak and ash at Craig’s spring, he has been in possession more than seven years, and is protected. The court is of opinion, he cannot protect himself under Barton’s grant hy seven years’ possession, unless you believe that grant and his deed both cover the land in dispute. Defendant again insists, that although his grant and deed does not cover the land, yet it is more than seven years since plaintiff made his entry, and defendant has been in possession ever since; and plaintiff is barred by defendant’s possession, because he could have sued upon his entry. Upon this point the court told the jury if the entry of Hudson had been produced and read, and evidence had been given to show it was a special entry, and covered the land sued for, then the question would be fairly made; but inasmuch as no entry has been read to the jury, the court is of opinion, defendant cannot avail himself of that ground of defence, inasmuch as it is impossible to tell whether plaintiff's lessor could have prosecuted a suit, either in law or equity, for the land now sued for, by virtue of that entry alone, and as this defence was relied upon by defendant, it lay upon him to show the entry was special. Defendant relies upon another defence, which is, that as plaintiff’s entry included land which the defendant had under cultivation, the plaintiff’s entry and grant are void, unless he had given thirty days’ written notice to the defendant, he intended to. enter said land.
    The court charged the jury, the law required thirty days’ written notice, but the fact whether such notice had been given, might be proved by positive or'cifcumstantial evidence. If you believe Wilson was present’ when the entry was made, and admitted notice had been given to him, or assented to the entry without notice, it would be a waiver of his right of notice, and would be sufficient.
    .The court further charged the jury, that if they believed the true beginning was at the white oak and ash, east of Craig’s spring, and to run out the land from that beginning,.’it would include the land in dispute, and his title is older than plaintiff’s, it would give defendant the bést right, unless he is estopped from claiming it as against the plaintiff, by some act of his. It is insisted for plaintiff, the defendant is estopped as against the plaintiff, from setting up his title. Upon this point, the court charged the jury, if they believed from the proof, the .defendant told plaintiff his claim began at Craig’s spring, and it did not extend further east than the place represented on the plat by tire dotted lines, and the land east of the dotted lines was vacant land, and advised plaintiff to enter the land between the black and dotted lines, and was" with plaintiff when the entry was made; 'and if plaintiff did enter the land in pursuance of said advice, and upon these representations of defendant as.to his boundary, he would be estop» ped; but if when he advised the plaintiff to make his entry, he told plaintiff his land extended to the black line on the map, but verbally agreed to relinquish his claim, or not set it up, he would not be estopped. Defendant’s counsel requested the court to charge the jury, if they believed it was notorious in the neighborhood, that defendant’s east boundary extended to the black line as represented on the map before plaintiff made his entry, that in that case defendant would not be estopped from claiming to that boundary, although he had advised plaintiff to enter. But the court charged the jury, the notoriety of the defendant’s boundary made no difference if defendant himself, who is presumed to know his own boundary, told plaintiff, who is presumed not to know defendant’s boundary, that it did not extend to to the black line,'but still advised plaintiff to enter, saying, he would not claim it, defendant would not be estopped; but if defendant told plaintiff his boundary did not extend to the black line, but stopped at the dotted line, and the land between the dotted line and the black lines was vacant, and plaintiff did enter that land in pursuance of, arid founded on his representations as to his boundary, that would estop him from claiming it as against the plaintiff, although it might be notorious in the neighborhood, that defendant’s boundary did extend to the black line.” The jury found for the plaintiff, and a motion having been made for a new trial by the defendant, and overruled by the court, the defendant prosecuted an appeal, in the nature of a writ of error, to this court.
    
      James Rucks and O. B. Hubbard, for plaintiff in error.
    The court erred in charging the jury, that Wilson’s possession would do Mm no good, unless they were satisfied, that the grant and his deed covered the land, without telling the jury, that if they believed that Barton went .and run out his land in 1818, and re-marked it, or claimed the old marks which had been originally made, that then it would be good against a subsequent enterer, as he should have done. See Williamson vs. Buchanan, 2 Tenn. R. 282. The re-surveying must reasonably conform to the calls of the grant (see Garner and Dickson vs. Norris’ lessee, 1 Yer. 62), which it most certainly does, for it lies on Rowle’s creek, and begins on the northeast corner of Stephen Barton’s five hundred and forty-six acre tract, now' owned by Wm. Newby in part.
    The plaintiff in error contended in .the court below, that more than seven years had elapsed from the date of defendant’s entry to the bringing of this suit, and that therefore he was barred by the statutes of limitations, but the court below charged the jury, that the entry of defendant in error had not been introduced and read, and therefore that defence could not avail him, although plaintiff in error then insisted, that the date of defendant’s entry was specially set out in his own grant, and formed a material part of it, and that he ought' not to deny it. “Material recitals cannot be disputed by those making them.” Willis 9, cited from Baylie’s Digested Index Evi. Gould’s Esp’s Nisiprius, 2d part 116.
    The court stated to the jury, that it was the duty of the’ plaintiff in error, to have produced defendant’s entry in the, court below, and shown that it was a special one, before the statute of limitation would be a bar, yet it could not then or now be seen, why its being special or general could make any difference in this case, for it was the plaintiff in error who wished to have the advantage of his adversary’s claim, and was willing to take it in any form, and not complain, which he ought to have been permitted: A claim by entry will be bar-red by the statutes of limitation. See Hickman’s lessee vs. Gaether and Frost, 2 Yer. 200.
    This entry was made on the 25th day of April, 1826, and suit was brought the 3d of February, 1834, making seven years and nine or ten months.
    
      The court charged the mry, that although the plamtifl . . , ° V J- 1 , 1 • J. , m en'or was m the possession of the land m dispute at the time defendant in error made his entry, and was entitled to have thirty days notice that the defendant in error intended to enter the same; yet proof that such notice had been given, might be proved by circumstances or by positive proof, although it was then contended on the part of the plaintiff in error, and is now insisted on, that the statute of 1824, ch. 22, sec. 6, has decided how that notice shall be given, and any other manner or mode of doing it would operate as a repeal of said statute: It is therefore contended for the plaintiff in error, that as the statute required thirty days’ notice in writing, which cannot be dispensed with without making said statute a nullity, which the courts of the country will not do. And in support of this position and principle, see Johnson vs. Seacy, 4 Yer. 185; Martin & Yer. R. 333; Newman vs. Carroll 3 Yer. 26.
    It was further charged by the court, that plaintiff would be estopped to set up his defence, if he had advised defendant in error to enter the land in dispute, saying it was vacant, which was then, and now is thought to be erroneous; for if Barton’s land was granted in 1816, at the place where Wilson claims it to lie, and where it was notoriously admittedbythe whole neighborhood (with few exceptions) that it did lie, then the plaintiff in error could not, by loose and casual conversations admit away his land; the act of 1801, ch. 25, sec. 1, forbids it, and so does the case of Patón vs. M’Lure, Martin and Yerger 333; Newman vs. Carroll, 3 Yer. R. 26. It would seem singularly strange to say, that the landholders of the country could operate a transfer of their lands by unguarded admissions in unguarded conversations, without any consideration, or the promise of it, when they could not do it by the most solemn contract or agreement.
    To establish such a principle would be to repeal the act of 1801; overrule the decisions of the courts upon it, and> violate one of the best rules of policy. This would lay the real property of the country at the mercy of the designing of every party, who could depend for proof upon the credulity, of some, the mistakes of others, and the malice of many.
    Where lines are not settled down or known, parties may agree, but where one had settled down upon his land, and claimed it for fifteen or eighteen years; bounded with plain marked lines, and claimed up to, on every square, by his neighbors, to admit proof to destroy such a claim, and that too in favor of one who had no claim of right, cannot be done. See Profit vs. Williams,- 2 Yer. R. 91;- Nichol v. Lytle, 4 Yer. 456.
    
      Wm. B. Campbell and J. S. Yerger, for defendant in error.
    The land in dispute must be covered by the deed and grant of plaintiff in error, and possession must accompany the same, or he will not be protected under the statute of limitations..
    It was not the duty of the defendant in error to produce the' entry on the trial below. If the plaintiff in error relied oh the statute of limitations, the entry was necessary to the defence, and was therefore his business to produce and read it. Cheatan and wife vs. Bass,-3 Yer-. Rep. 61.
    The act of assembly requires the notice to the person in possession to be in writing. But notice may be waived. Evidence of such notice may be positive or circumstantial. 5 John. Rep. 248; 16 John. Rep. 152; 5 Yer, - Rep,. 300, 215.
    The plaintiff in error cannot ¡ret up his title, however perfect or notorious, if he advised or induced defendant in error-, to enter the land. Plaintiff in error either knew that it was vacant, or was mistaken in the fact. If he knew that it was not vacant, and induced defendant in error to enter, he practised a fraud, and cannot take advantage of it. If lie was mistaken in the fact, it was his own . w . * lault and misfortune, and not produced by any act of the defendant in error, and he cannot take advantage of his own mistake. 6 John. Ch. Rep. 166; 2 John. Ch. Rep. 51; 1 John. Ch. Rep. 240, 512.
    The marking and claiming the corner at Craig’s spring, by Barton the original grantor and by Wilson, was a good re-marking, and conclusive upon them. Ross vs. Turner’s lessee, 5 Yerger 338, and Whitesides vs. Singleton, 5 Yerger 18.
   Green J.

delivered the opinion of the court.

The circuit judge, among other things, charged the jury, “that if they believed that the true beginning, was at the white oak and ash, east of Craig’s spring, and to run out the land from that beginning, it would include the land in dispute, and his title is older than plaintiff’s, it would give defendant the best right, unless he is estopped from claiming it, as against the plaintiff, by some act of his. It is insisted for the plaintiff, the defendant is estopped, as against the plaintiff, from setting up his title. Upon this point, the court charged the jury, “if you believe from the proof, the defendant told the plaintiff his claim began at Craig’s spring, and it did not extend further east than the plan represented on the plot by the dotted lines, and the land east of that dotted line was vacant land, and advised plaintiff to enter the land between the black and dotted lines; and was with plaintiff when the entry was made; and if plaintiff did enter the land in pursuance of such advice, and these representations of defendant as to his boundary, he would be estopped; but if when he advised plaintiff to malte his entry, he told plaintiff his land extended to the black line on the map, but verbally agreed to relinquish his claim, or not set it up, he would not be estopped.”

This opinion of the circuit court is objected to by the plaintiff in error, by whom it is insisted, that to make his declarations conclusive upon Mm, is to take away his land , - ' - . , . , by force of an unwritten agreement, which is contrary to the statute of frauds. This consequence, we think, does not result from the opinion of the circuit judge.

In the case of Nichol vs. Lytle, 4th Yer. Rep. 456, referred to by the counsel for the plaintiff in error, the court says: “When there is doubt as to the true locality of a line, the verbal agreement of adjoining claimants, and their¡acts in pursuance thereof fixing upon one, is evidence that the line so agreed upon is the true boundary, especially if long acquiesced in.” The principle here laid down is precisely applicable to the case now before the court. Here, the evidence as to which is the true corner, is contradictory, and must create some uncertainty, although, we might think the weight of testimony was on one side. In this state of things, Barton, the former owner, asserted the corner to be at Craig’s spring, and marked the trees then, as his corner. The plaintiff in error,"who claims under Barton, finding these trees marked as the corner, and purchasing only to that corner, constantly declared that to be his corner, and advised the defendant in error, .to enter the land east of that place. Here is an agree ment between one about to make an entry, and the owner of the adjoining land, fixing upon a comer, and line, (not in a’case where they both well knew it'did not exist, (as was the case of Nichol vs. Lytle,) but in a case, when if the one fixed upon was not the true line and corner, the fact as to the true corner was uncertain, and'believed by them to he at the place fixéd upon. This case is like that of Ross vs. Turner (5 Yer. 338.) There Hopkins, the -'grantee, under whom Turner claimed, met the surveyor to look for the beginning corner of his entry on Ross’ north east corner, but not finding any corner, they fixed upon a plan where they drought it ought to be, and Gray, the sufveyor, marked three hickories as the corner, in Hopkins’ presence, and with his assent. This court held .that Hopkins, and those claiming under him, were estopped to claim any land south-of the three hickories. J , -i 1 although it might appear, that Ross north east corner, on which Hopkins’ grant called to begin, was actually south of said hickories. It is not perceived, how this marking the three hickories could have a more obligatory effect than the marking the white oak and ash, at Craig’s spring, by Barton. In the present case too, the fact that Wilson recognized Barton’s marked trees as his comer, and claimed only to that place, is a circumstance not existing in the case of Ross vs. Turner, and one which adds greatly to the obligatory effect of Barton marking, upon Wilson.

In the case of Singleton vs. Whitesides, (5 Yer. Rep. 18,) the doctrine of estoppel is carried much farther than in the case of Ross vs. Turner, or in the case now at bar. There, Overton and Whitesides were owners of a tract for five thousand acres, granted to John Gray and Thomas Blount, one call of which was, for south to a stake, crossing Duck river. They caused the land to be processioned in 1808, and this line, instead of being run to Duck river, was stopped three hundred and thirty two poles short thereof. After this processioning, Jenkin White-sides repeatedly recognized these .processioning lines as being the true ones; pointed them out to others as his bounds, and conformed in every respect to them for eight or nine years. Whitesides, however, ascertained his mistake,, and set up his claim to the boundaries called for in the grant, and had tenants upon that part lying beyond the processioning lines for years before Cannon’s entry, under which Singleton claimed, was made. Nevertheless, this court held, that he was bound by the processioning lines and his continued claim to them for a series of years, and that he was estopped thereby, to set up his title to the land beyond, although such land was clearly within his grant. This opinion did not proceed upon the idea that the act of the surveyor in processioning and marking the lines, under the act of 1806, chap. 1, sec. 21, was of itself, conclusive upon the .owner of the land, and estopped Him from showing that the surveyor had mistaken his cor- , .. , , , • , , ners and lines, and setting up his claim to his tree boundaries. This it would be impossible to hold, and no such construction has ever been given to that act. But when these processioning lines had been marked, the party recognized them, and claimed to them, and thus made them his own, and thereby was estopped to say they were not his true boundary. The case at bar is much stronger against Wilson, than the one above referred to, was agáinst Whitesides. There Whitesides found out his mistake, and claimed to the true boundary, and had tenants in possession of the land, long before the inception of the adversary claim. Here, the marking was done by the grantee himself, and the corner marked, continued to be claimed by him, and by plaintiff in error, until after the entry of Hudson was made, and the adversary title was acquired by the advice of Wilson. We think, therefore, that in this part of the charge of the court, there is no error.

The plaintiff in error, relied on another defence, in the court below, which is, that as Hudson’s entry included land which the plaintiff in error had under cultivation, the entry and grant of the defendant in error, were void, unless he had given thirty days written notice to the defendant, that he had intended to enter said land. The court charged the jury upon the subject; “that the law required thirty days written notice, but the fact, whether such notice was given, might be proved by positive or circumstantial evidence. If you believe Wilson was present when the entry was made, and admitted notice had been given him, or assented to the entry without notice, it would be a waiver of his right of notice, and would be sufficient.”

It is' insisted that this charge is erroneous, and'that a party in possession of vacant land, cannot waive his right, to written notice, that another intended to enter the land he possesses. This is a most unnatural and strained construction °^^ie actJ requiring the notice lo be given. All intended was, that the occupant should be apprised of the intention to enter the land, that he might avail himself of the right to secure it to himself, if he might desire to do so. It is not perceived how the written notice would have been of any benefit to Wilson, if it had been given. He was present when the entry was made, assented to tire entry, and advised Hudson to make it. To say that the right to the notice was not waived by these acts and declarations, would be adopting a different rule of construe-lion in this case, from that which has governed in cases analagous to this. This court has constantly held, that a defendant in an execution, who is by the act of 1799, chap. 14, sec. 1, entitled to twenty days written notice of the time and place appointed for the sale of his land, may waive the notice, and that the sale and sheriff’s deed will, in such case, vest a good title in the purchaser. In the case of Noe vs. Purchapile, (5 Yer. Rep. 216,) it is said, “the notice required by the act of assembly, of 1799, chap. 14, sec. 1, was intended for the benefit of the defendant, in an execution, that he might be present and divide the land into different lots, if he should so desire, as provided for by the third section of the act. It would seem, therefore, wholly useless to require proof that a written notice was served upon him, if it clearly appear that he had all the knowledge such notice would communicate, and was actually present at the sale.” After some further decision of the subject, the court concluded by saying: “The defendant, by his conduct, assisted in making the sale, stood by at the time, and had an understanding with the purchaser for his benefit. All this amounts to a waiver of notice.

It is manifest from a comparison of these two acts of assembly, that the same principle is applicable to each, and that the case of Noe vs. Purchapile, is a decision of this question.

The plaintiff in error also insisted on the statute of lim-ilations; hut by reference to the grant of Hudson, it is perceived, that it had not issued seven years before the commencement of this suit. Although, therefore, Wilson had been in possession nine years, yet as the act of limitations does not run against the State, the computation of time can only commence from the inception of“the title of the lessor of the plaintiff. His entry is not produced so that it is not shown that he had any title until'he obtained his grant.

We are, therefore, of opinion, that there is no error in this record, and order the the judgment to be affirmed.

Judgment affirmed.  