When this cause was be-, fore us, on a former occasion, (4 Johns. Rep. 140.) we all agreed that the premises in question were included within the boundaries either of lot No. 15. or of lot No, 16.; and that, as the lessors of the plaintiff had shown a title for both these lots, they had a right to recover, unless they had concluded themselves by establishing different boundaries from those given in the letters patent. The written agreement between Goodrich and the defendants, for the purchase by the former of fifty acres of the land, which was then supposed to lie between lots No, 15. and 16., was offered in evidence, on the former trial, as one, among other circumstances, to establish-that the lessors of the plaintiff had thus concluded themselves ; but the judge overruled it. We supposed that this agreement was admissible on the ground that “ it might have been followed up by acts which would conclude Griswold, and those who derive title, under him, from claiming the premises as within either of the lots ■and' therefore lest “ the defendants might have forborne to ^pffer similar or inferior evidence of acts,” &c. we awarded a new trial. Although the court did not ex- *245. aresslv determine that if the agreement had been ad- ' r J . mitted in evidence, the plaintiff still would be entitled to recover, unless it was followed up by further evidence, yet it is clear that such was then our opinion. Now I cannot discover any facts in the present case which ought to lead to a different conclusion from the one we before arrived at, when this cause was before us on a similar application. The evidence on the former trial is not so fully reported as it might have been, nor was it necessary in the view we then took of the case.
But waiving what we before said on this subject, let us consider the cause as it now stands. The question is whether, upon the facts before us, the present claimants have said or done any thing, or acquiesced in what has been done by others, so as to devest themselves of their title to the lands in controversy. There being no dispute about the facts, this is a question of law. Owing to some cause which is not explained, and about which we are left entirely to conjecture, the person who surveyed the lots in "question committed an error which created some confusion in relation to the line between No. 15. and No. 16. Goodrich, who resided in Connecticut, was ignorant of the true extent of lot No. 16., and therefore agreed to purchase the 50 acres mentioned in the case from the defendants. Those from whom Goodrich derived his title were also deceived with respect to the true line of division between No. 15. and No. 16. and expressed an opinion that neither lot embraced the premises in question. Some few years ago the error under which the proprietors of these lots laboured was detected, and the defendants now set up this misconception of the lessors of the plaintiff as a defence in this action, and the court consider the defence to be valid. This is going much further than we have ever yet gone, and, in my opinion, to a most dangerous length. The extent which we have hitherto gone is,, that when two persons, already having a title, have settled the line *246of division between them; or where one having title made an actual location according to what he supposed to be his true line, and his neighbours have acquiesced in such location for a considerable length of that the boundary thus established shall remain undisturbed. But in this case my brethren' go greatly beyond the principle of our former decisions. Here the defendants, confessedly, have no title at all; and the judgment of the court is, that the true and undisputed owners have not only lost their rights, but that the defendants, after a possession for about eighteen years, have acquired a title, which, it will be seen, is good against all the world. The government, it is conceded, have no claim to the property. The title must, therefore, be in some other person ; and if it be not in the lessors of the plaintiff, then the defendants have it. It is thus that the acquiescence of those having the right, in ignorance of its actual extent, and a few loose parol declarations, are made to confer a title upon those who were trespassers when they entered, and who otherwise would have no right at all.
There is another view of this subject which, it appears to me, is equally conclusive against the defence which is relied upon. There can be no doubt that the lands in question fall within lot No. 16. One set of the lessors of the plaintiff derive title to that lot from John Harper by his deed of July, 1790. Harper had no title to No. 15. All the right he had was to No. 16,, and the whole of that, as described in the letters patent, he had conveyed to James Hawley three years before the conveyance to Ansyl M'Call, under whom the defendants claim. The parties thus derive their title from the same source. The defendants are in no better situation than Harper himself would have been if he had remained in possession of the premises, and the present action had been commenced against him. Now it would seem to me that Harper never would be permitted to avail himself of the defence.insisted *247~spon by the defendants ; and if he would not, neither can the defendants. I am persuaded the more this view of the question is considered, the more conclusive it will appear against the defence which my brethren think it their duty to sanction.
If I understand the argument of the counsel for the defendants, they rely in a great measure upon the evidence of adverse possession, considering probably (as I most certainly did) that our former decisions (for this is the third time this cause has been before us) had disposed of every jother point. There is no force in this objection; and the only reason why I omit going fully into a consideration of this part of the case, is, because I have never understood my brethren, in conferring with them on this subject, that they placed their opinion at all on this ground. My opinion is, that the verdict is against law, and ought to be set aside, with costs to abide the event.
Motion denied.