Bleckley, Chief Justice.
This is the second appearance here of the case of Towner vs. Thompson, in which a second motion for a new trial was granted by the court below, and the judgment was affirmed here at March term, 1888. 81 Ga. 171. At the third trial, Thompson, the plaintiff below, recovered, and a motion for a new trial made by Towner having been denied, the present writ of error was brought by him.
1. The writing in evidence reciting the purchase of *744a “mill-seat” was ambiguous, and that being so, Yarborough’s testimony to the effect that the land in dispute was not embraced in that purchase, although it was covered by water of the mill-pond, was admissible.
2. So also was his evidence showing that Robertson, while owner of one of the tracts, admitted that the creek was the line. We take this evidence to mean that the admission was made before Robertson parted with his title, although the date of the same is not fixed.
3. During the concluding argument, counsel for Thompson stated a fact not in evidence, to wit, that Towner was born in Illinois. This statement was improper, and the request made by opposing counsel to charge directly to that effect, should have been granted; but the charge given, to wit, that the jury should try the case by the evidence, and not by what counsel said in their speeches, was sufficient. No court, however, should tolerate counsel in stating any fact in argument as to which there is no evidence, unless it be some fact which can be noticed judicially without proof; certainly that Mr. Towner was bom in Illinois is not one of this class of facts. There should have been no allusion made to it in argument.
4. Under the evidence as it comes up in the record, the right of the plaintiff' below to recover was- very doubtful; but the evidence did not constrain a finding for the defendant; and the jury having resolved the doubt, and the verdict being approved by the presiding judge, we do not feel called upon to set it aside. Had the finding been the other way, we would probably have had as strong doubts of its correctness as we have with regard to the finding which actually took place. It is best that the litigation between these parties about a small piece of land be here and now terminated forever.
Judgment affirmed.