This case was not submitted to the jury, but they were directed by the circuit judge to find a verdict for the plaintiff and for nominal damages, and no request was made by the counsel on either side to the court to go to the jury, except upon the single question that the parties being present, when the partition was made, are concluded by that partition.
*633The counsel for the defendant also requested the court to direct a verdict for the defendant, and excepted to his refusal to do so.
In stating to the jury the ground upon which he directed a verdict for the plaintiff, the judge said he charged them as the law of the case, .“that, the location and boundaries of the seventeen acres, admeasured to Mrs. Rector as her dower, were fixed by the stakes set by the commissioners to admeasure dower. That the proof showed that the commissioners to partition failed to partition the whole of the land set off to the widow, and that the title to that strip remained in the parties as tenants in common.”
In stating, as a proposition of law in respect to the location and boundaries of the dower lot, that the same was fixed by the stakes set by the commissioners to admeasure dower, the judge assumed as matter of fact that stakes were stuck by said commissioners to designate the corners of said lot. If there had been or was any substantial dispute upon this fact it should doubtless have been submitted to the jury, but as neither party asked to have any such question submitted to the jury the assumption of the judge must be deemed acquiesced in and correct.
There was evidence that stakes were stuck at the north-east and north-west corners of said lot, and were seen and remained there for some time afterward, and there was proof that a fence was built on the line indicated by such stakes for and as the boundary of said lot, and remained until the controversy" in this action arose.
The plot of ground was laid out upon a map annexed to the report of the commissioners to set off and assign such dower, and to which they referred, showing also that the said lot was laid out in the shape of a parallelogram, eight chains wide, east and west, by twenty-one twenty-five one-hundredths chains long, north and south; and said report fixed a stake at the north-east corner and at the south-west corner which would imply the place and location of the stakes at the other corners, or the point of the comers respectively.
The complaint in particular fixes or mentions stakes in the northwest and north-east corners, as, do all the descriptions of land between the parties, and the deeds to the defendant, who purchased out the interest of several of the heirs, fix and recognize such stakes. It was right, therefore, to state and hold as matter of law, if stakes were stuck at the corners of the lot at the time the dower was assigned, to fix the boundary and extent of such dower land, that *634such stakes as fixed monuments must control the locative calls in the deeds, and such calls must be satisfied and complied with and prevail in admeasuring such land, or in the construction of the reports and deeds among the parties.
Nothing is better settled than the rule that in the construction of deeds relating to lands natural or artificial monuments or objects fixed and permanent shall control in preference to the courses and distances or quantities mentioned in the deed. This is the rule which the learned judge intended to assert and apply in his charge to the jury.
The statement of the judge also that the commissioners to partition this dower lot failed to apportion the whole, was clearly correct upon his assumption that the true corners of said lot were fixed by the stakes and the fence built in accordance with the said stakes for the northern boundary of said lot.
The conclusion that the strip between such fence and the line fixed by the commissioners in their partition of said lot in the northern boundary thereof was undivided, and that the title to that strip remained in the parties as tenants in common was also clearly correct. The fact that the parties interested, or any of them, in such partition, were present when such partition was made, did not conclude them, and the judge committed no error in refusing so to instruct the jury.
No valid exception was taken on the trial to any ruling of the court, and the judgment should be affirmed.
Judgment affirmed.