
    
      E. M. Baynard v. William Eddings.
    
    Although land in dispute be described in the deed of conveyance as containing a certain number of acres, more or less, if the description is otherwise certain, the party must recover or fail accordingly, and a parol agreement to malee up that quantity, can have no effect.
    What were the limits of the purchase at the execution of a deed, is purely a question of fact for the jury.
    The owner of a tract of land known by a certain name, may attach thereto a part of other land adjoining, which he also owns, and continue to the combined pai--cels the old name; and his declarations as to the fact, and the acts of those connected therewith, are admissible, with the other facts of the case, as evidence of the boundaries understood and intended to be expressed in a subsequent devise or deed of the land.
    A law Court sits to ascertain the rights of the parties, as they have fixed them; it has no power to declare what, in good conscience, they ought to be, and to compel the parties to acknowledge accordingly, and allow them to have effect.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    This was an action of trespass to try title to a tract of land, called the Red House tract, on Edisto Island. The title to the land was in the late Ephraim Mikell. By his will he devised the balance of his Red House tract, after deducting 50 acres devised to his son, John Calder Mikell, to his wife for life, and after her death to his son, William Mikell. William Mikell died, leaving a widow, who has since intermarried with the defendant, and some children. For the purposes of his estate, it became necessary to sell the Red House tract: his mother released her life estate, and by a private contract between Dr. Westcoat, acting for Mrs. Mikell, and Joseph B. Seabroob, for the plaintiff, a sale was effected to the plaintiff; it was guaranteed that if, on a survey," there should not be 150 acres in the Red House tract, it should be made up to that quantity out of the adjoining land of the deceased. To carry out the sale thus effected, a bill m Equity was filed, in which the land is described as about 150 acres, the balance of the Red House tract after deducting 50'acres, devised to John Calder Míkell.
    Such proceedings were liad in Equity, that the Master was-ordered to make a title to the plaintiff: lie accordingly made-a deed, describing the laud as in the bill.
    What was the Red House tract ? Did it include a piece¡ of wood-land lying between an old line ditch and the fence on the Red House tract? were the questions in the case. There was no doubt whatever that originally the Red House-tract covered the whole. Include it, there wore 157 acres: exclude it, and there were 129 acres. Ephraim Mikell"was the owner of the Red House tract, and also of the adjoining tract, called the Crawford tract. The old line ditch was well known as the boundary of the Red House tract. There was, however, no fence between them in Mr. Mikell’s time. In his life time, and after his death, the fence on the Red House tract was considered its boundary, and the woods were called the Crawford woods. This was the proof of Owens, who, had been the overseer of the defendant, and the estate of Mi-kell, for eleven years.'
    Jenkins Mikell, the son of Ephraim Mikell, and his executor, said that for 21 or 22 years the wood land had been called -the Crawford woods. He said he put up the fence after his father’s death, by his mother's assent, or perhaps as her agent, as the boundary of the Red House tract. His father, he said, always called the wood land now in dispute the Crawford Avoods. He said he once offered $>8,000 for the land, the price at which the plaintiff bought it: if he had thought it covered the wood land, he Avould have given $10,000. The plaintiff aud his father, he said, were very intimate kinsmen. Both Dr. Westcoat and J. B. Seabrook agreed that at the sale the wood land was not regarded as pait of the Red House •tract; but said if it did not. hold out 150 acres, that quantity was to be made up out of the wood land.
    A very extensive trespass on the rvood land Avas proved. What was the boundary of the Red House tract meant by .the deed, bill, and will, was uncertain. Hence the proof of Mr. Mikell’s declarations, acts, and those of his Avidow and «executor, fixing it, were all competent, as the Circuit Judge .thought, and were admitted.
    The jury were told .that the plaintiff must recover or fail, «according to the description in his deed. The parol agreement to make up the quantity to 150 acres, could not now have effect. What is the Red House tract, as understood a,t .the execution of the deed by the parties 1
    
    
      The jury were told originally there was no difficulty. The Red House tract, when it passed to Ephraim Mikell, covered the land in dispute. Did he change its boundaries ? and by his will, did he devise it according to the line of fence excluding the woods? Was this the boundary according to which the plaintiff bought, and which his deed describes? If so, he ought not to recover. Otherwise he ought to recover all the land, and such damages as the jury might think right. The testimony was very fairly submitted to them. They found for the defendant.
    The plaintiff appealed, and moved the Court of Appeals for a new trial, upon the following grounds :
    1. Because his Plonor, the presiding Judge, charged the jury that the declarations of Ephraim Mikell, made in private in his own family, were sufficient evidence to authorize the jury in finding against the plaintiff the new lines spoken of in such declaration.
    2. Because his Honor charged the jury that the plaintiff was affected by such declaration, in the same manner as a devisee under the said Ephraim Mikell.
    3. Because his Plonor charged the jury, that unless they found for the plaintiff the whole land in dispute, they could not render a verdict in his favor for a part.
    4. Because his Honor, the presiding Judge, in admitting parol evidence to show the position of the division line, virtually allowed that the same was not fixed by the plat or by the description in the deed — and therefore either erred in admitting the evidence, or in charging the jury that they could not fix this line at a point which would embrace the 150 acres called for by the contract and by the title deed.
    5. Because the land on either side of said division line being owned by the vendor at the time of sale, and the conveyance calling for 150 acres, to be bounded by the vendor’s land, the jury were authorized to fix the line by the bounds called for, so as to embrace 150 acres at least.
    6. Because the plaintiff’s case rested upon an old established plat, derived from the parties who sold to him, and carrying on its face marks of its being recognized by them as the true plat of the Red House tract, and that this plat should have prevailed against mere general statements by parol, and the verdict ought to have been for the plaintiff.
    7. Because the verdict is against the weight of evidence and the justice of the case.
    Memminger, for the motion.
    Hayne, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

The two first grounds of appeal have not been at all relied on in the argument: indeed, as taken, they were founded in mistake. For the declarations of Mr. Mikell, the testator, were submitted to the jury, as other facts in the case, to enable them to decide what were the boundaries of the Red House tract of land, as understood and intended to be expressed by the deed of the Master in Equity. That this was the proper course, needs no further or other comment than to refer to Perry v. Morgan, 1 Strob. 8, and to the same case decided at the last sittings in Columbia.

The 3d, 4th and 5th grounds suppose there was error in the charge that the plaintiff must recover or fail, according to the description in his deed — “that the parol agreement to make up the quantity to 150 acres, could not now have effect.” The first part of this charge is a truism in law, about which there is and can bo no dispute. The second is also admitted to be true in terms, but it is supposed that the parol agreement, although it could not be specifically enforced in this action, yet might be regarded as defining the boundary. This might be true if there were any existing boundary to which it could apply; but there is none. It is expected to give effect to it, that the jury should make some intermediate new line.

This cannot be done, for a law Couit sits to ascertain the rights of the parties, according as they have fixed them: it has no power to declare what, in good conscience, they ought to be, and to compel the parties to accordingly acknowledge,- and allow them to have effect.

The 6th ground makes the only real question in the-case: what was the Red House tract, at the execution of the deed? This was purely a question of fact, resolvable alone by the verdict of the jury. They have decided it in favor of the defendant, and I think their verdict ought not to be disturbed. It is very true, that when Ephraim Mikell bought the Red-House tract, it was represented by the plat mentioned in the 6th ground. It is also equally true, that the old line ditch, to which the plaintiff insists oil extending his deed, was then the boundary: but Mr. Mikell was also the owner of the adjoining tract, called .the Crawford tract, after his purchase, and, for the convenience of his agricultural operations, he had a right to attach part of the Red House tract to the Crawford tract, and continue to the combined parcels the old name. That he did this, is apparent from the testimony of his son and executor, Jenkins Mikell. When he devised the Red House and Crawford tracts, he gave to his wife a life estate in the balance of the Red House tract, (after taking off fifty acres for his son, John Calder Mikell,) and to his son William A. Mikell he gave the Crawford tract immediately, and in remainder the said balance of the Red House tract. The executor, Jenkins Mikell, as tho agent of his mother, fixed the fence, which the jury have found as the boundary of the plaintiff’s deed, as he then acknowledged, and known western limit of the Red House tract. For at least eleven years before the plaintiff’s purchase, the overseer, Mr. Owens, had known and considered it as the boundary. When the gentlemen who negotiated the treaty of sale were conferring, they regarded the fence as the boundary: the Red House tract, with that as its western boundary, was the subject of their contract. From not having the papers before me when I made out my report, I omitted to state that the plaintiff’s deed, after having given a' description of the Red House tract by quantity, and the contiguous tracts, says, “having such shape and marks as are represented by the eastern division of a general plan of the lands of the said William A. Mikell:” on referring to that plan, it lays down three tracts of land, viz: Davant’s, Crawford’s, and part of the Red House tract. The Davant tract constitutes the western division, and is separated from the Crawford tract by a well designated line or bank: the Crawford tract constitutes the centre; the separation between it and the Red House, the eastern division, is not designated otherwise than by the representation on the plat of the line fence put up by Jenkins Mikell, extending from the southern to the northern line. The old line ditch, the original western boundary of the Red House, was not designated in the plan: it is now merely marked in pencil. Under these circumstances, and especially when connected with the proof that Ephraim Mikell spoke of all the Red House tract west of the place where the fence stands, as parcel of the Crawford tract, and that his family, including his executor and devisees, so understood and treated it after his death, it is fair to conclude, that what the parties meant by the “eastern division,” was that portion of the Red House tract lying east of the fence. It is very true that the plaintiff, in such a location, has not his quantity. It is seldom that quantity is of much weight in a question of location. Sometimes, when it is the only certainty in a description, it might and very probably would have a controlling effect. But here, it is no more certain than the other parts of the description: it is “about 150 acres, more or less.” The plaintiff obviously chose to give up the certainty of having precisely 150 acres, for the prospect of getting by the description, which he obtained; seven acres more. Like others equally unfortunate, in grasping at more; he has lost the certainty of less. The motion is dismissed.

Richardson, J. and Evans, J. concurred.

Wardlaw, J. and Frost, J. dissented.

Withers, J. absent, from sickness.

Motion dismissed.  