The findings of the judge at Special Term, construed by the light of the conveyances in evidence, must be regarded as establishing as a matter of fact, that the sale by Jonas Reed to the plaintiff, and Milton Reed, included all *Page 440 of the land in dispute in this action. But that by reason of long continued possession or occupancy, an ancient fence in the central portion thereof had come to be the actual and rightful dividing line for about thirty-three chains in such center. And so the judge found the respective ownerships to be separated no longer by a straight line; but by a line deviating from the line indicated by the contract of sale, and the deed given in pursuance thereof. As the plaintiff does not appeal, it is unnecessary to inquire whether the judge was or was not correct in giving to the defendant a portion of the disputed land up to the ancient fence referred to, or not.
As to the actual boundary of the land sold to the plaintiff and Milton Reed, there was evidence, and to my mind, satisfactory evidence, in support of his finding. The testimony of the surveyor, Mr. Arnold, is very pointedly in support of that finding.
As a question of fact upon the evidence, this point is therefore not open for discussion of this appeal.
Unless, therefore, his conclusion was reached in violation of some rule of law, either in admitting or rejecting evidence, or in the construction and effect of the instruments of title, the judgment should be affirmed.
And this is so, however conclusively it is shown, that the original proper division line was a straight line, for the defendant cannot complain that the plaintiff has recovered less than the establishment of a straight line would give him.
As to the reception of the evidence of the contract for the sale by Jonas Reed to the plaintiff, there was no error. The proof of its loss was abundant, and the evidence left it doubtful whether it had a subscribing witness. More than twenty years had elapsed since it had been seen. It would be manifest injustice to require a party to do what was impossible. The instrument itself could not be found. The person in whose possession it was last seen was dead. No inspection of it could, therefore, be had, to determine whether there was a subscribing witness or not, and there appeared no means of *Page 441 ascertaining who such witness was, if the contract was attested by any witness.
I think the appellant's counsel is right in saying that he was entitled to a ruling upon the admission or rejection of the deed to his grantor, and if it was at all doubtful whether the deed was in truth received in evidence, it would furnish a question of some importance; but it is clear, from the finding of the judge, that he sustained the appellant's title to all that he deemed that deed to convey, and to that land lying in the center of the disputed location already adverted to.
As to the evidence of a parol location of fences at the westerly end of the land in dispute, it is undoubtedly true that mutual consent to the location of a boundary theretofore in dispute, followed by long acquiescence and by mutual occupation in conformity with, has been held to conclude both parties. But the general rule is, that mere parol is not sufficient to pass the title to land.
The opinion delivered in Baldwin v. Brown (16 N.Y., 363), shows that something more than agreement and possession according to it for a few years, is necessary to confer title or create an estoppel. In Jackson v. Douglass (8 Ill., 367), eight years was held not sufficient; Kip v. Norton (12 Wend., 127), four or five years; Adams v. Haskell (16 Wend., 285), eleven years also held insufficient. In Stuyvesant v. Dunham (9 Ill., 61), merely acting on the agreement is held not enough to change the true time. Justice SELDEN says: "In all cases in which practical locations have been confirmed upon evidence of this kind, the acquiescence has continued for a long period, rarely less than twenty years." Here the conversation offered in evidence was less than three years before the trial, and one year before the action was brought, and the building of the fence was "after" the conversation; how many months before suit brought is not shown. The evidence was properly rejected.
The only other point, which it seems to me material to notice, is that founded upon the terms of the deed to Edwin Reed, which bounds the defendant's premises, "north on lands owned and occupied by Levi Reed." *Page 442
The defendant has actually, by the judgment herein, retained all the land south of the fence which separated the land occupied by Jordan from the other part of lot No. 6, and there is no pretence that the line of Edwin Reed was further north than that.
As to the residue of the disputed boundary, there was no fence, and upon a finding of fact that the actual ownership was in accordance with the line established by the court, the terms owned and occupied by Levi Reed were properly held to import the lands, which, by virtue of the contract, did in equity belong to him, and as to which, in the absence of proof of other actual possession in connection with proof of actual occupation of the farm, generally draws to it the possession as matter both of law and evidence.
I think the judgment should be affirmed.
All concurring, except GROVER, J., who did not vote.
Judgment affirmed.