delivered the opinion of the court. In this cause, the lessors of the plaintiff dеduced a title under a deed given to Van Horne, in virtue of a partition of a trаct of land comprehended in a patent granted to Bradley and Jevou, madе in the year 1747, by the then prietors, of whom Abraham Hasbrouck, the father of the defendant, and under whom he claims, was one, who, by that partition deed, released, according to a survey then made at the instance of the proprietоrs, by one John Eltinge, and on which the partition was founded, all his right in lot No. 1. in that patent.
The defendant derived his title to the premises from Abraham Hasbrouck, as lying within the boundaries of an adjoining patent, granted to Bradley and Jamieson, subsequent to the patent of Bradley and Jevou, and claimed the premises on the ground of a mistake made in the original survey of John Eltinge. Thus, it appears, that the lessors of the plaintiff and the defendant both clаim under separate persons, parties to this partition ’ deed.
The first inquiry, therefore, will be, whether it was competent for the legal representatives of Abraham Hasbrouck to controvert the northern line of lot No. 1. in the survey by Eltinge of the patent to Bradley and Jevou, -by setting up a title under the patent to Bradley and ' Jamieson.
By the release оf partition between the proprietors, it will appear, from the reсital, that they agreed to make ■ a division agreeably, to the survey of Eltinge. This being a deed, under their hands and seals, must, as between the parties to this instrument, be a complete establishment of the line run by that survey, so that the inquiry for the jury, under those сircumstances, on the trial of this cause, could only be, whether Eltinge, by his survey, cоmprehended the premises in question, within the boundaries of lot No. 1. This survey was, by the judge
The рropriety of the rule of law, whereby parties or privies are not allоwed to controvert facts admitted by their solemn deed, appears in this case. The mistake was made in the survey of another lot, containing ten: chains too much; so that the loss occasioned by this mistake would exclusively fall on the proprietors of lot No. 1. and thus create an inequality in the partitiоn.
An attempt was made to prove an agreement as to the northern line of this lot, but instead of an abandonment of the possession of the lands lying between the lines of Bruyn and Eltinge, the witness said that he considered the land to be his, up tо a fence, standing on a line called Sctetfs line, confessedly south of Eltingé’.s line, and as far north as the lessors of the plaintiff recovered on the trial; that he never gave it up, but meant sоme day to try the title to it, notwithstanding' the removal of the fence by Abraham Hasbrouck; and that onе year subsequent to such removal, he took the avails of the land; so that, in fаct, no evidence was introduced of an alteration by agreement, in rеlation to the lines of No. 1. or the northern line of the patent, as run by Eltinge. This line was rеcognised as the true boundary, by the partition deed between the proрrietors, has been so generally received, and possession of the рremises in question held for upwards of twenty years under it, and ought not now to be disturbed.
The court are of opinion, that the defendant must take nothing by his motion.
Thompson, J. not having heard the argument in the eau.se, gave no opinion.
Rule refused.