The lessor of the plaintiff undertook to make out title in himself, by showing first a grant, dated in 1795, to David Flannigan, his ancestor; which grant, after setting forth several lines not material to be stated, called for a gum, John Osborne's corner, which both parties admitted *Page 428 to be at C; running thence with three of his lines north sixty-four degrees east one hundred and fourteen poles, to a pine, at D; thence north eighty-eight poles, to a hickory at E; thence north thirty-four degrees west forty-three poles, to a stake in said Osborne's line at G; thence to the beginning. He next gave in evidence a sheriff's deed to himself, executed in 1813, calling for precisely the same boundaries, as those set forth in the grant, and proved a continued possession for twenty years in himself and his ancestor.
The defendant, to show title in those under whom he claimed, gave in evidence a grant dated in 1773, to Noble and John Osborne, for a tract of land-lying south and east of Flannigan's land, which called for the several boundaries above mentioned, until it came to E; from thence, instead of north thirty-four degrees west forty-three poles; it called for the same course seventy-four poles, to a black oak at P; thence by several other courses, Q, c., to the beginning. He next exhibited a deed executed in 1795, to Noble and John Osborne, by Adlai Osborne, agent of the trustees of the university, corresponding generally in its boundaries, with those of the grant to them, but after reaching the gum at C, instead of calling for a course north sixty-four degrees west, one hundred and fourteen poles, to a pine, it called for north sixty-one degrees east one hundred and fourteen poles, to a stake at L; thence north three degrees west, eighty-eight poles, to a hickory at O; thence by the same line as in the grant, to the beginning. He also gave in evidence a deed executed in 1804, from David Flannigan, the father of the lessor of the plaintiff, and three other persons, calling themselves the heirs of Noble Osborne, deceased, to John, James, Noble, and Jane Osborne, "heirs of John Osborne, deceased," for the land described in the deed of Adlai Osborne. Neither of these deeds contained any recital or averment, that the land thereby conveyed was the same which had been granted to Noble and John Osborne; nor did they make any reference to their grant, or to that of Flannigan; and the latter deed passed estates only for the respective lives of the bargainees. One of those bargainees, had died *Page 429 many years before the day of the demise in the plaintiff's declaration.
The evidence of title on both sides having been given, the plaintiff offered testimony to show, that the line C D, was the true line of the grant to David Flannigan, running from the gum, John Osborne's corner, with his line north sixty-four degrees east, one hundred and fourteen poles, to a pine; but the defendant objected, that no evidence for that purpose could be received; because it would contradict David Flannigan's deed, which made the line C L, running from the gum north sixty-one degrees east, one hundred and fourteen poles, to a stake, to be the line of Osborne's land. His Honor being of this opinion, the plaintiff was not permitted to offer his evidence to establish the line C D, as the line of the grant to the ancestor of his lessor, and submitted to a nonsuit; and appealed. — In support of this decision, it has been insisted here, that the true line of John Osborne from the gum, wherever it can be ascertained, is the boundary of Flannigan's grant, and cannot be departed from: that although Osborne's line, previously to 1795, might have run from C to D, yet that upon the execution of Adlai Osborne's deed, which preceded the grant to Flannigan by two years, it was extended out to C L; and that in legal intendment, the call in Flannigan's grant for Osborne's line, is for Osborne's line then existing; and not for a line of Osborne's, which had formerly existed; but was not then in being.
We do not assent to this reasoning. In the first place, it is to be borne in mind, that when Flannigan's grant calls for Osborne's lines, it does not call for them simply by that name, but it adds other descriptions to identify them; "running with three of his lines north sixty-four degrees east, one hundred and fourteen poles, to a pine; north eighty-eight poles, to a hickory, and north thirty-four degrees west, forty-three poles, to a stake in Osborne's *Page 430 line." Of the boundary in question, there are then three descriptions — it is Osborne's line — it runs north sixty-four degrees east one hundred and fourteen poles — and it runs from a gum to a pine. When all the descriptions of a boundary in a deed or grant can be made to agree, they must all be observed. When they disagree, and some must be rejected, then that description, or those descriptions should be preferred, which the law regards as comparatively more certain. In this scale of legal certainty, the first rank is assigned to those permanent and striking monuments of the natural objects called for in the instrument, in regard to the existence and locality of which, a mistake is almost impossible; and the next rank is given to the less permanent and notorious, but still permanent and notorious monuments then erected, or then marked to show forth the boundaries intended by the parties. Had it been ever so clearly established, that at the date of Flannigan's grant, the line C L wasnotoriously Osborne's line, and that there was no other which had ever borne that name, it was still competent for the plaintiff to show the originally marked corner pine yet standing at D; or to prove that it had stood at that point; or to prove a line of marked trees, either existing, or shown to have existed at date of Flannigan's grant, extending from C to D; and in either case, it would have been the duty of the Court to instruct the jury, that such monuments, if established to their satisfaction, to have been made as and for Flannigan's corner, or Flannigan's line from the gum to the pine, were to be respected, rather than Osborne's line, as affording more certainty in regard to the extent of the land intended to pass by the grant. With respect to the conflict between the call for another's line, and the course and distance by which it is described, there is not the same decided legal preference. Where this line is shown to have been well established and notoriously known, it is reasonably regarded as yielding greater certainty than the other description; but where it is not a well-known marked line, and especially if an observance of it shows so gross a mistake in the course and distance, as shocks probability, it is more safe to adhere to the latter, and reject the former. *Page 431
But the call for another's line, is not necessarily a call for his true line. It means the line bearing that appellation, and reputed to be such. Of course, in the absence of all proof tending to show a difference between the true and the reputed lines, they will be presumed to be the same; but they may be shown to be different. Thus, if there have been two lines bearing the same name, the reference will be understood to apply to the one or the other, accordingly as extrinsic evidence, or the other descriptions in the deed, shall show the one or the other to have been intended. If, for instance, in the present case, from 1773 to 1795, the line C D was John Osborne's line, and in 1795, in consequence of the deed from Adlia Osborne, this line was extended out to C L, it is open for inquiry by extrinsic evidence, whether in 1797, the former had lost its appellation altogether, and the latter had become known in the neighbourhood as Osborne's line. If such were the fact, and there were no additional descriptions in Flannigan's grant, to designate the line, then the new line, as being the one bearing exclusively that name, must be deemed the line contemplated by the parties to the grant. But if the old line had not lost its name, and the new had not acquired it, clearly, on the same principle, the old must be understood as the line called for. In the present case, however, the Court was bound to hold that the reference in Flannigan's grant, was to Osborne's line, under the grant of 1773, and not to his line under the deed of 1795, because of the additional descriptions and references in Flannigan's grant. The calls from the gum are to go with three of Osborne's lines, and the courses and distances of two of these, and the course of the third, are set forth, north sixty-four degrees, east one hundred and fourteen poles, to a pine; north, eighty-seven poles, to a hickory; and north, thirty-four degrees west, forty-three poles, to a stake in his line. If the lines of Osborne's grant be meant, there is a perfect correspondence between all the lines described, and all those referred to. If those of Osborne's deed be meant, the entire description in the first line, and the course of *Page 432 the second, must be rejected as erroneous and deceptive; and they must run, not north sixty-four degrees east, to a pine, but north sixty-one degrees east, to a stake; and not north, but north three degrees west, to a hickory. Such a construction ought to be put on the grant, if it may be, as will give to every part of it a sensible effect.
Something has been said about an estoppel, but the argument, whether well or ill pursued, is founded on a mistake. There is no averment in David Flannigan's deed, that the land thereby conveyed, is the land which had been granted to Noble and John Osborne. There is no recital that the line from the gum north, sixty-one degrees east, to a stake, is the line of his grant. The question of boundary, therefore, was perfectly open to both sides — to evidence on behalf of the plaintiff, that C D was the line of Flannigan's grant; and to evidence on behalf of the defendant that C L was the line. If C L be established as the line, the plaintiff must fail altogether. If C D be established, yet as the ancestor of the plaintiff's lessor in 1804, conveyed up to the line C L, his interest, so far as that deed purported to convey it, passed thereby. This deed operated, not by estoppel, but to pass an estate. By this deed, however, the bargainees acquired estates but for the term of their respective lives; and if C D be the true line, then the reversionary interest in the piece in controversy remained in David Flannigan. Upon the death of one of these bargainees, the right to immediate possession accrued to the reversioner or his heir, or assignee. And it is not to be questioned at this day, but that on a demise for an entire tract, the plaintiff may show title to an undivided part thereof. In this way, the lessor of the plaintiff might have entitled himself to a judgment for an undivided part. Perhaps he might have established a right for the whole. The sheriff's deed was colour of title to all the land embraced within it, and accompanied by a proper possession, of sufficient duration, it would ripen into a valid and indefeasible title.
This Court is of opinion, that the evidence proposed to *Page 433 be given was admissible. The judgment below is therefore to be reversed, with costs, and a new trial ordered.
PER CURIAM. Judgment reversed.