Evans v. Greene

| Mo. | Mar 15, 1855

Leonard, Judge,

delivered the opinion of the court.

The principal question in the cause relates to the proper location of a piece of land of twelve and one-sixth arpens, now within the city of St. Louis, under Price’s deed to O’Hara, of the 16th of March, 1820, designated on diagram No. 1, by the lines at — ts—si—la, and hereafter referred to as the O’Hara tract. This land was part of a larger tract of 30 93-100 ar-pens, originally sold by Chouteau on the 3d of August, 1808, to Meriwether Lewis, designated on the map as ai — ih—hf—fa, and hereafter referred to as the Lewis tract, and which, after Lewis’ death, was acquired by Price, on the 25th of October, 1811, at an administrator’s sale of Lewis’ title.

And this tract was part of a still larger tract, originally conceded to Chouteau by the Spanish government, marked on the map as ab — be—cd— de — ea, and to be referred to as the Chou-teau confirmation. The description given of the O’Hara tract, in Price’s deed, is, “ all that certain tract, piece or parcel of land, situate, lying and being in the township of St. Louis aforesaid, containing twelve and one-sixth arpens of land, being part of a certain tract of land containing thirty arpens and ninety-three perches, French measure, conveyed by Pierre Chouteau and Bridgette Sauciere, his wife, to Meriwether Lewis, by deed bearing date the 8d day of August, in the year of our Lord one thousand eight hundred and eight, which said thirty arpens and ninety-three perches is described in said deed as follows : “ A tract of land adjoining the town lots of the town of St. Louis, bounded as follows: Commencing at a stone in Antoine Roy’s upper line, thence running south 67 deg. SO min. west, forty-five perches to a stone in the line separating the town lots from the lots which have been granted for cultivation, thence north 21 deg. 30 min. west, seventy-two perches to a stone in said line ; thence north-eastwardly forty-five perches to a stone, and thence sixty-five perches to the beginning, containing thirty arpens and ninety-three perches, French measure, in superficie, which said tract of thirty arpens and ninety-three perches was afterwards sold under an act of court, by Edward Hempstead, administrator of Meriwether Lewis, deceased, to the said Risdon H. Price, and which said tract of twelve and one-sixth arpens, hereby intended to be conveyed, is particularly laid down on a map or plat thereof made by Joseph C. Brown, deputy surveyor, a copy of which is on this deed, and the original is hereunto annexed, and which said twelve and one-sixth arpens is on the south-east corner of the said tract of thirty arpens and ninety-three perches, and is bounded on the north by the lands of Elias Rector and others, and on the west by, wholly or in part, Third street.”

The question upon the trial was, whether, under this description, the land sold must be located in the south-east corner of the Lewis tract, or whether, if it appeared that the words “ south-east” were put into the description by mistake, proceeding either from a mere slip on the part of the writer of the deed, in using these words for the words " south-west,” or from misapprehension on the part of the grantor as to the true position of the south-east corner of the Lewis tract, they could be rejected, and the land located by the other descriptive calls. The jury, under the direction of the court, located the land in the south-west corner, disregarding the call for the south-east corner, and the propriety of these instructions being contested, brings before us the question we have suggested as to the proper rules of law applicable to the location of this land.

It is thus seen that the question, as to the location of the O’Hara tract, involving in it the true positions of .the southeast and south-west corners of the Lewis tract, depends, in a good degree, upon the real or supposed position of that tract, and that this depends again upon the position of the'Chouteau concession. For the purpose of ascertaining the proper location of these several pieces, as they were successively carved out of the larger tracts, from which they were taken, it is proper that we carry ourselves back to the times when these transactions occurred, and these descriptions were given; and, surrounding ourselves with the circumstances that then existed, in that way put ourselves in a position rightly to understand the acts of these parties, and to interpret and apply, understanding^, the descriptions they themselves have left us of what they did ; and we may then refer, in order to test the correctness of our conclusions, to the practical interpretation that the parties themselves and others interested put upon these acts, both at the time and subsequently.

The Chouteau tract was an original concession to him by the Spanish government on the 16th of October, 1799, of 133 arpens, which was afterwards, on the 10th of March, 1803, surveyed by Soulard, under the Spanish authorities, so as to embrace the quantity granted, and was then bounded on the east by the Mississippi river; on the south, in part, beginning on the river, by Roy’s land, (which was afterwards acquired by Chouteau,) and on the west by the royal domain.

In August, 1808, five years aifter this survey, and when the land embraced in it was yet in the condition in which it was left, both as to boundary and title, by the concession and survey, Chouteau sold a part of it (30 93-100 arpens) to Lewis, describing the part sold as follows : “A tract of land adjoining the town lots of the town of St. Louis, bounded as follows: Commencing at a stone in Ant. Roy’s upper line ; thence running south 67 deg. 30 min. west, forty-five perches to a stone in the line separating the town lots from the lots which have been granted for cultivation ; thence N. 21 deg. 30 min. west, seventy-two perches to a stone in said line ; thence northeast-wardly forty-five perches to a stone, and thence sixty-five perches to the beginning, containing thirty arpens and ninety-three perches, (French measure,) in superficie.”

This, it is seen, is a conveyance of a specific portion of the earth’s surface, marked upon the ground by artificial monuments at the termination of the four straight lines that enclose it, and as an original question, untouched by the acts of the parties and the peculiar condition of the land titles of the country at the time, there would not seem to be any doubt as to its true location ; nor, indeed, do we know that there was any, until subsequent events showed that the eastern line of the common field lots was not in the position indicated by the deed. In such a description, the law is, that the monuments placed at the angles, when certainly ascertained, fix the position of the land, regardless of tbe course and distance of the connecting lines ; and if they are not to be found, as their original position constitutes the true boundary, that position must be established by proof, and the highest, and as a general rule, the controlling proof upon the subject is, the description of their position, given by the parties themselves in the deed. .When, however, in March, 1820, Price made the sale to O’Hara, and gave the description of the land sold which has occasioned the present controversy, the boundaries of the Lewis tract were, it would seem, somewhat different, in the opinion of the parties inter ested, from what they were in 1808, when the title originated. In 1817, Mr. Brown made an official survey under the United States, which ascertained the true position of the eastern line of the common field lots, west of the south-west corner of the Chouteau confirmation. This line had never been previously surveyed, and had been supposed to be further east at that point than it was fixed by Brown. It is indicated on diagram No. 1 as ¿2B, and intersects tbe western line of tbe Spanish survey of Chouteau’s concession, leaving south of the intersection a gore of land between the common field lots and the concession, and north of it, cutting off a portion of the concession to the west.

Going back now to 1811, it appears that Chouteau’s concession was confirmed on the 28th of May, of that year, to the amount of 93 arpens and one perch, Mr. Chouteau throwing off the excess, in order to get rid of conflicting claims, and this confirmation was subsequently, in April, 1817, officially surveyed by Brown, as indicated on the map. The southern line of this survey is identical with the Spanish survey, and the western lines of both surveys, beginning at the south-west corner, coincide until they are intersected by the common field line, when Brown’s line leaves the line of the Spanish survey, and thence northwardly coincides with the common field line, throwing out of the confirmation so much of it as lays west of what is ascertained to be there the eastern line of the common field lots.

Both parties to the suit claim the land in controversy under Price, as part of the Lewis tract; the defendant through O’Hara, as the owner of the O’Hara tract, and the plaintiff under an execution sale of Price’s property, made after the execution of the deed to O’Hara, upon the ground that the land now in controversy is not included in that deed; and so it is not material here to inquire whether the ascertainment of the true position of the eastern line of the common field lots had, in point of law, the effect of removing the south-east corner of the Lewis tract westwardly along Roy’s line to a point in that line forty-five French perches east of the intersection of the true common field line, by an extension of Roy’s line. But it is material to inquire how the parties viewed this matter — what was the effect of it in their opinion — and whether they acted upon the assumption that it had the effect suggested, of removing the south-east corner of the Lewis tract westward to the new point indicated on diagram No. 1 at m; for, if. Price acted upon this supposition, believing, when he sold to O’Hara, that the south-east corner of the Lewis tract was at a point in Roy’s line, west of the old corner, to be obtained in the manner indicated, but erred when he fixed its position at a point to be touched by an extension southward of Rector’s east line, which is now ascertained to be several feet west of the supposed new corner, we have an explanation of the alleged inconsistency in the calls of the deed, which reconciles all the testimony, and produces the same result as the plaintiff’s theory of supposing that the words “south-east” were used by mistake for the words “ south-west.” Price, we think, acted under a double error — an error of law as to the effect of the ascertainment of the true common field line upon the south-east corner of the Lewis tract, and a mistake in a matter of fact — the true position of that corner, if established forty-five perches east of the intersection of the common field line, by an extension of Roy’s line ; and the result of this double error was, the introduction into his description of the land sold to Price, of the words “ south-east corner,” which is now ascertained to be a false description, even assuming that the south-east corner of the Lewis tract is at the new point in Roy’s line, west of the old corner.

In 1817, four conveyances were made of portions of the Lewis tract; two by Price, one of eight arpens to Douglass, of the £0th of May, and the other of five arpens to Rector, of the 19th of August, and two by Douglass, one of five arpens, part of his eight arpens, to Post, of even date with his conveyance from Price; and the other on the 5th of July, to Simpson and Quarles, of the remaining three arpens.

That we may understand the descriptions in these conveyances, it is necessary to remark that in December, 1810, Chou-teau sold to Carr 84J arpens out of his concession, by specific boundaries, extending east and west across the whole tract, and in November, 1815, sold 21 arpens out of it to Bates, bounded east by the Mississippi river, south by the one arpent tract, west by the Lewis tract, and northwardly by the land sold to Carr. The piece Price sold to Douglass is taken off of the north end of the Lewis tract, and is described as bounded westwardly by the lots granted for cultivation, and northwardly and eastwardly by Bates’ land, the closing line on the south being left open to be fixed in position and course by the quantity. The five arpens out of the Douglass tract, conveyed on the same day to Post, are taken off of the north end of the piece, with the same boundaries on the west, north and east that are given in the deed from Price, the closing line to be parallel with the northern line, but left open to be fixed in position by the quantity. The remaining three arpens are subsequently described in Douglass’ deed to Simpson & Quarles, as beginning at Post’s south-west corner, and bounded thence by Post’s south line, until it intersects the land of Bates, thence by Bates’ western line “ to the north-east corner of Risdon H. Price’s land,” thence westwardly to the common fields, and thence northwardly along the common field line to the begin-ing, leaving the southern and northern lines both open, to be afterwards ascertained by the quantity.

We come now to Price’s deed to Rector, which discloses most important facts in relation to the boundaries of the several subdivisions into which Price divided the Lewis tract, and shows, very satisfactorily, the opinion he entertained and acted upon in reference to the proper location of that tract, after the ascertainment of the true common field line — and by the artificial monuments that were then placed upon the ground, fixes the position of the eastern line of the tract as he then supposed it must be located. This deed describes the land conveyed as being enclosed within five lines, with a stone placed at four of the angles, and gives the courses and distances of all these lines. It describes the first course in the western boundary as being the common field line, and by giving the direction of the second course in that boundary, from b to t, identifies it with the western line of the Chouteau confirmation. It describes the north line of the tract sold, as being identical with the south line of the Simpson Sr Quarles tract, terminating at the southeast and south-west corners of that tract.

We learn, then, from these descriptions, that Price, at this time, limited the Lewis tract on the west to the western line of the American survey of the Chouteau confirmation, and on the east to a new line west of the old line, to be determined by running from the new corner in Roy’s line, either to the old northeast corner of the tract, or to a new north-east corner, to be obtained by re-constructing the figure of the Lewis tract, either as shown by the figure mn — nr—rq—qm, or by the figure mn — no—op—pm.

It is palpable enough from the deed, that Price thought the Lewis tract was limited on the west, as we have indicated, and a few considerations will render it quite as manifest that he did not extend its eastern boundary beyond a line to be obtained by running northwardly from the new south-east corner. Before he could convey, by specific boundaries, the five arpens to Rector, it was necessary that the southern line of the Simpson & Quarles’ survey, which was the southern line of the Douglass tract, should be located. He was interested in its location, and being bound by his deed to Douglass to locate it in the eastern line of the Lewis tract, and so far south along that line as to include in the tract eight arpens, it was necessary for him to ascertain not only the eastern, but also the northern and western lines of the Lewis tract, and to put this line in a position that it would cut off of the north end of the Lewis tract eight arpens, and terminate in the eastern boundary of that tract, which is described as the line running north and south between Lewis and Bates. This was done by this deed, which fixes the eastern termination of it at the common corner of the Rector and Douglass or Simpson & Quarles’ tracts, and this corner being now ascertained by measurements upon the ground, obtained from the deed, to be several perches west of the old eastern boundary of the Lewis tract, indicates, clearly enough, that Price had then abandoned that boundary, and was governed by the new line, to be obtained by running to the supposed new south-east corner in Roy’s line, west of the old corner; and as the eastern line of the Douglass tract lay wholly in the eastern boundary of the Lewis tract, and so was now wholly in this new eastern line, which was a straight line from corner to corner, it is not unreasonable to suppose that the eastern line of the Rector tract was a continuation of the same straight line, and the course of it being given .by the deed, it is now found by measurement upon the ground, that an extension of it intersects Roy’s line west of what is now ascertained to be the true position of the supposed new south-east corner of the Lewis tract, but not so far from it as to exclude the idea that it was the point expected to be reached by it, especially when it is considered that there seems yet to be some difference of opinion among surveyors as to its true position; one of the witnesses in the present ease fixing it in Main street, and the other thirty-six feet west of the curb stone, which is less than one hundred feet east of the point touched by an extension of Rector’s eastern line ; and this is the more probable, as to suppose otherwise is to suppose that Price intentionally retained a small strip of ground between the Rector tract and the new eastern line of the Lewis tract, not a quadrilateral figure, as seems to be supposed by the map in the cause, but a triangular shaped piece, standing on a base of a few feet from s to g, and terminating in the eastern line of the Lewis tract, at the south-east corner of the Douglass tract.

It is now, it seems, ascertained that Price was in an error in a matter of fact, in supposing that the direction he gave to Rector’s eastern line would intersect Roy’s line at the new south-east corner of the Lewis tract, so that the line would coincide with the new eastern line of the larger tract. It is enough, however, for our present purpose, if he so thought, and acted upon that assumption, how much soever he may have erred as to the fact. In his view of the matter, the south- east corner of the Lewis tract was in the angle at l, made by an extension southward of Rector’s eastern line to Roy’s line, and the piece of land that remained to him, after the sale to Rector, was situated in what he thought was the south-east corner of the Lewis tract, and is indicated on the map as at — ts—si to la, and this piece of land, as the proof now shows, contains twelve and one-sixth arpens, is enclosed by four lines, two of which (on the north and west,) coincide with the lines of Brown’s survey of Chouteau’s confirmation, and therefore have their courses ascertained, and the courses of the other two are ascertained by reference to the Rector survey, and it is bounded, in part, on the west by what was then the Bellefontaine road, a continuation of Third street, now Broadway, and on the north by the south line of the Rector tract, which is here the common boundary of both tracts, and thus fixes the length of the north line of the tract now referred to.

The deed to O’Hara was made three years after all these transactions, when, however, there had been, as yet, no change in the land or in the surrounding objects, except, perhaps, that other persons may have, in the mean time, acquired interests in the Rector tract, and that the Bellefontaine road, owing to the extension of the city in that direction, may have, perhaps, assumed more the appearance of a street than it had in June, 1816, when Price, in selling a portion of this Lewis tract, (the five acres conveyed to Rector, by his deed of that date,) describes the land sold as bounded " westwardly in front on the hill road leading to camp.”

Mr. Price now, in 1820, causes a survey to be made of the ground he is about to sell, and, in describing it, first designates it as a part of the Lewis tract, then gives the length and courses of each of the four sides that inclose it, by a plat of the survey annexed to the deed, on which the courses and distances of the respective sides are specified, and then proceeds to fix its position in the Lewis tract, by describing it as being in the south-east corner of that trace, and bounded on the north by the lands of Elias Rector and others, and on the west wholly or in part by Third street. This tract of land corresponds in shape and area, with great exactness, with the piece of ground in the Lewis tract, which then remained to Price — the eastern, southern, western and northern sides of both tracts corresponding respectively in course, and the northern side, the only one the length of which had been previously ascertained by adjoining surveys, corresponding also in length. Now, by the call for Third street, it is carried westward to the western line of the Chouteau confirmation, and by the call for the land of Elias Rector northward to the south line of the Rector tract, and these two lines being thus located, the other two lines are found to correspond, in course and position, with the two remaining sides of the tract supposed to have been left to Price after the deed to Rector in 1817. Price, when he made that deed, indicated where he supposed the south-east corner of the Lewis tract was, and what was then so strongly implied from his acts is now declared in almost so many words by this deed to O’Hara, where it is said that this piece of ground, thus described, and which, when located according to its other calls and descriptions, covers the whole remaining piece, lies in the south-east corner of the Lewis tract.

It has already been remarked that only one moiety of the land was conveyed by the deed of March, 1820, and that the remaining moiety was conveyed by deed of the 1st of September, of the same year, by the same description ; and we may here observe that this repetition of the words “ south-east” may be allowed to have some weight in support of the view here suggested, and against the idea that it was a mere clerical error, not yet detected, or, if detected, fallen into a second time by a slip of the writer. The form too of the description corroborates the idea that the words “ south-east” are intentionally used, to convey the idea in the mind of the party. The mode of identifying the land here adopted was, to give the courses and lengths of the lines inclosing the piece surveyed, and then to fix its position by reference to surrounding objects on all sides, and this is done by reference to Third street on the west, and Rector’s land on the north, and by the call for the south-east corner of the Lewis tract for its boundaries on the east and south. Upon the idea, however, that the words “ south-east” were used by mistake for “ south-west,” the general description, by reference to adjacent objects, would be deficient in referring to no object on the east, and redundant in fixing the western boundary not only by the corner, but also by reference to Third street.

We now refer to the practical construction of this description, furnished by the acts of the parties themselves, not only at the time of the conveyance, but subsequently.

O’Hara, very shortly after the conveyance to him, laid out a portion of the ground into lots and streets, as an addition to St. Louis, and the position of this addition is shown by the natural mounds found upon the ground and represented on the map to be in the south-west corner of the Lewis tract, as originally surveyed; and in September, 1820, the same month that the last deed was made to him by Price, O’Hara sold and conveyed to Price six lots in this addition, one of which is within ninety feet of the south-west corner of the Lewis tract, as originally surveyed.

Here is a cotemporaneous practical construction given to the description by both the parties to the deed, and it fixes the position of the O’Hara tract, not in the south-east corner of the Lewis tract, as originally surveyed, nor in the supposed southeast corner, obtained by carrying the beginning point westward along Roy’s line, thirty-six feet west of Main street, but within the boundaries we have indicated, the western line of the confirmation on the west, and an extension of Rector’s eastern line on the east, thus extending from the south-east to the southwest corners of the Lewis tract, as he then located it, and embracing all of it that yet remained to him undisposed of.

Afterwards and before or in December, 1820, a large judgment was obtained against Price in the St. Louis Circuit Court, and his property swept from him by execution, so that he ceased to have any further interest in these questions.

And, we may remark that, when O’Hara sold the land to Anderson, by deed of the 26th of December, 1820, which was after the judgment had been obtained against Price, under which his interest in the original south-east corner of the Lewis tract was subsequently sold, and when other and perhaps sharper men had become interested in the property, and claimed for him where he had omitted to claim for himself, he describes the land as “ bounded on the east by lands of Risdon H. Price, claimed also by Frederick Bates, or his assigns thus confirming the suggestion before made, that an extension of Rector’s eastern line to Roy’s line was at least claimed to be the common boundary on the east, between the Lewis tract and Mr. Bates’ land; and after Gen. Ashley had acquired the title from Anderson, in 1826, he took possession up to the western line of the Lewis tract, and at-first limited his inclosure on the east to a continuation of the line of Lindell’s fence, who had become the owner of the Rector tract, afterwards moving down to Main street, after Lindell had moved down, upon acquiring a new title to that line.

It is not our duty to decide upon the facts, and we have not referred to them with any such view, but we must look into the evidence, in order to determine upon the propriety and correctness of the instructions given by the court in reference to the location of the land embraced in the deed; and it is for this purpose that we have referred to most of the leading circumstances of the transaction. Whether the evidence given establishes the facts the parties rely upon, in support of their respective positions, was a question for the jury; and if they were correctly instructed as to the law, and there was no error in the reception or rejection of evidence, the judgment must be affirmed.

As we have before remarked, the turning point in the case was, which call should prevail in fixing the position of the O’Hara tract — the call for the south- east corner of the Lewis tract, or the call for the street and Rector’s land, taken in connection with the fact that the figure of the piece sold corresponded with the south-west and not with the original southeast corner of the Lewis tract, and also- in connection with the subsequent acts of the parties, in taking possession of the land in the south-west corner, as they successively succeeded to the title, and the substance of the instruction given was, that if the facts were as indicated, and the jury believed it was the intention of Price to sell and convey the land in the south-west corner of the Lewis tract, they might reject the call for the south-east and locate the land in the south-west corner, and we have no doubt of the correctness of the direction, as applicable to the circumstances of this case.

The rules of law upon this subject are the rules of right reason, adapted to ascertain the real intention of the parties, and are such as are found by experience generally to produce that result. ' When there are natural objects or artificial monuments upon the ground, fixing the position of the land sold, they must prevail, for they mark upon the earth’s surface the specific part sold, and the position of these objects, when found, cannot be controlled by the description of their position given in the deed, by course and distance; and, generally, whenever there is a conflict in the calls of a. description, the call for a natural object or an artificial monument prevails over the call for course and distance, for the obvious- reason that men are more likely to err as to the course and distance, than as to the natural or artificial objects to which they refer.

The grantor here gives the form and area of the piece of ground he sells, describing the respective courses and distances of its southern, western, northern and eastern lines, and he then designates it as part of a larger tract, and, for the purpose of fixing its position in that tract, calls for the south-east corner of the large piece, a street on the west, and the land of a particular individual on the north. The call for the southeast corner is supposed to conflict with the call for the street and for Rector’s land, and is inconsistent with the shape of the ground sold, and with the subsequent acts of the parties, in taking possession of it; and we are, in effect, asked to declare that the call for the south-east corner shall prevail in this case over the call for the other two objects, however strongly the latter call may be corroborated by the other circumstances to which we have referred. If there be, in truth, a conflict between these calls, we know of no rule of law that requires us to declare that the call for the corner shall prevail as a matter •of sheer, rigid law, over the call for the street and the land of Rector. Indeed, the rules of law would seem to require us to declare quite otherwise, for the only object in this description, obvious to the senses, is the street or road. The corner made by the meeting of two imaginary lines of the tract, has, of course, no pretensions to that character, and its true position, so far from being 'so obvious as to preclude the probability of error on the part of the grantor, in reference to it, has been the stumbling block in the way throughout the whole transaction. We see how much easier it was for the party here to fall into an error as to the true position of the south-east corner of the Lewis tract than as to the road, an artificial object on the ground, obvious to his senses, and the numerous errors in the conveyances used upon this trial, as to the relative position of corners and other objects, is but a confirmation of our own experience, that no errors are more likely to occur in deeds, as mere slips, on the part of the writer, than mistakes of this character. In truth, we think it would be a mere perversion of the rules of law, defeating instead of executing the intention of parties, to declare that the call in this deed for the south-east corner must control every thing else, no matter how conclusive the other parts of the description may be as to the identity of the land sold, and the mistake in the particular description sought to be enforced as the controlling call. The rule that course and distance must give way, in reaching natural or artificial objects, to the objects called for, is not at all applicable to the circumstances of this.case. Here is a plat of ground of a definite shape and size sold, and the only question is as to its true position in the larger tract from which it is taken. That position is described, not by course and distance, but by two calls, one for the south-east corner of the larger tract and the other for two other objects, a street or road and an adjacent tract of land; and so, too, the other rule to which we have referred, that in descriptive calls natural or artificial objects on the ground, obvious to the senses, are to be preferred to other descriptions less obvious, justifies the rejection of the call for the corner, if it sufficiently appears to be a false description, fallen into either through inadvertence or mistake as to the fact.

Certainly it is not competent in this action, involving the legal title only, to correct a mistake in the deed and then give effect to it as amended, and therefore, if the words “ south-east corner” were put into the deed by mistake, and without them there is not sufficient description left to identify the land sold, it would be a case for relief in equity ; but if part of the description is inconsistent with other parts, proceeding either from the mistake of the writer or the error of the grantor, and the remaining part is sufficient to designate the land sold, the remedy is afforded at law by disregarding the false description and giving effect to the other calls; and we think if the facts here relied upon were made out to the satisfaction of the jury, there was ample description left in this deed, after striking out the call for the corner, to ascertain the land sold. Whether the •description upon the diagram, together with its correspondence fin shape and size with the south-west, and non-correspondence 'With the south-east corner of the Lewis tract, would have been ¡sufficient for this purpose, we need not decide, as there is also dn the description the call for Third street and Rector’s land, which clearly fix its position in the south-west corner of the 'Lewis tract, where it has been placed by the practical construction of the successive owners of the title.

Indeed, the call for Third street and Rector’s land is not only fquite sufficient to designate, with certainty, the land intended to be conveyed, but it fixes its position in the south-west cor-mer of the Lewis tract and in the north-west corner of the land •that remained to Price after the sale to Rector, with a power of 'conviction that it is quite impossible to resist. It is obvious that this plat of ground cannot be placed within the Lewis ¡tract so that any part of its northern boundary shall coincide with any part -of the southern boundary of the Rector tract, without, at the same time, making them wholly coincide, and also making the southern and western sides of the plat of ground sold coincide wholly with the respective southern and western sides of the Lewis tract, at its south-west corner; for if the diagram of the O’Hara tract be so placed in the southwest corner of the Lewis tract, and its position be then changed in the least by removing it eastwardly along the southern line of that tract, (and there is no other way in which it can be moved and at the same time be retained within the Lewis tract,) the ground conveyed will lap over upon the Rector tract, (land eonveyed by the party himself,) instead of being bounded by it on the south; and so, in like manner, if you place the diagram within the Lewis tract and south of the Rector tract, and carry it westward to the road or street referred to, you fix the ground sold precisely in the same position.

In reference to the defence of the statute of limitations, the instruction given by the court to the jury was, indeed, we are inclined to think, more favorable to the defendant than the law warranted, and he has nothing to complain of here upon that score. If the jury disallowed it, we must presume it was because he failed to satisfy them of the fact, and the correctness of their finding upon the evidence is not a subject to be revised here.

2. We have now done with the instructions, and proceed to what occurred upon the trial as to the admission and exclusion of evidence. The defendant asked a witness whether he had ever heard surveyor Brown say where the south-east corner of Mrs. Ashley’s land was, and the court rejected the question, and we see no error here. We assume that the person referred to was the surveyor that made the survey and diagram referred to in Price’s deed, and do not mean to decide upon the propriety of the inquiry, if it had been made in such a shape as to elicit from the witness whether he had ever heard Brown say at what point upon the ground he fixed the south-east corner of that survey, although we feel no hesitation in saying that mere hearsay from Mr. Brown that he fixed it either at the old southeast corner of the Lewis tract, or at the point thirty-six feet west of Main street, unless now corroborated by some monument then placed upon the ground, which is not pretended;, would have been entitled to very little weight in the settlement of the controversy, where the facts were well understood, no-matter how much weight it might in fact have received from a jury in the hurry and confusion of a nisi prius trial. It seems-that Mr. Brown had placed a stone at the point in Boy’s line thirty-six feet west of Main street, at the suggestion of Gen. Ashley, and it may be that Mr. Brown’s interpretation of Price’s deed to O’Hara fixed the O’Hara land at this new southeast corner of the Lewis tract; and this opinion of Mr. Brown, as to a matter of law, rather than his knowledge of a fact, seems to have been the matter sought, as it most probably would have been the matter elicited by the question asked, and certainly, in this point of view, the question was rightly rejected. At any rate, the record must show us, affirmatively, that the question put ought to have been answered as it was asked, and this is not done here ; and we are the less unwilling to allow full effect to this principle here, as we are quite well satisfied that no answer from the witness in relation to what he heard from Mr. Brown, upon this point, ought to have changed the result, to which all the circumstances in this case directly led. We do not mean by this decision to express any opinion upon what may, perhaps, be considered the American doctrine as to hearsay evidence in questions of boundary.

It was certainly the duty of the court to direct the jury how the Lewis tract was to be located, and the court afterwards did so, substantially,,in the instructions given; and we, of course, do not sit here to reverse a judgment, because it is said a witness has given his opinion upon a matter of law, when we see that the opinion given was substantially correct, and could not have prejudiced the party complaining of it.

8. There is nothing in the objection that the trial of the cause took place after the marriage of Mrs. Ashley with Mr. Critten-den, without first making her husband a party. It was his privilege to be admitted as a co-defendant with his wife, but the plaintiff was not bound to take notice of the marriage, and stay further proceedings in the cause, until he had made the husband a party. What steps it may be proper for a plaintiff to take after judgment, before taking out execution against the wife, is not a question now before us. All we now determine is, that the plaintiff was not bound to bring in the husband, as a party to the record, before the trial, in order to give validity to the proceedings.

All the judges concurring, the judgment is affirmed.