The opinion of the court was delivered,
by Thompson, C. J.It is unquestionably true that calls in a deed, or lines on the ground, will control both courses and distances in a deed, with a qualification in regard to lines, which is always understood, that there be no fraud or mistake in running them: Ogden v. Porterfield, 10 Casey 195; Caldwell v. Holler, 4 Wright 168.
In this case, if we understand it, the deeds contain courses and distances taken from the draft made by the surveyor, which embraces the land actually sold and to be run off to the purchaser, Schweier, from a larger tract belonging to the vendor, viz., 32 acres and 27 perches. Schweier accepted the conveyance, and always claimed and occupied by tiñese lines. The defendant, a subsequent purchaser, discovered a line extending beyond the point 58 perches west of the Haines corner some 42 perches, of the same age with that of the line to that point, making the line *285west from the last named corner 101 perches to a post and stones, and from thence, a line N. 18° west 129 perches to a white oak, and so on around to the place of beginning. These boundaries contain upwards of 60 acres, and the defendant contends that that was the actual survey made for the purpose of executing the conveyance between Riekabaugh, the vendor, and Schweier, the vendee, and to which the principle that the lines on the ground must apply, and is to control the courses and distances in the deed, and that the deed must be held to cover this territory, notwithstanding it contains nearly twice the number of acres actually agreed to be conveyed.
The learned judge very properly held that this would be so in the absence of fraud or mistake in running the lines. That there 'was mistake, at least on part of the surveyor, if he meant to return those lines to the party, is demonstrable. The area embraced proves this. He was to start at a fixed point and run a certain course and distance, and from thence cut off 32 acres; instead of which he almost doubled the length of the first line, and included almost double the amount he was to set off. There was mistake or fraud here, which would prevent the principle invoked from applying. The defendant could not claim to reform his deed by a mistaken survey; and consequently could not defend on the equitable idea that, as he was entitled to have the deed reformed, it was to be considered as reformed so as to extend to the limits of that survey, if that survey was a mistake; and whether it was a mistake or not, was submitted.to the jury, with a very strong and very proper expression of opinion that the line was a mistake.
In fact, it seems to me there was evidence on the ground, to show that the boundaries in the deed, were run at the same time, either immediately before or immediately after the larger boundaries were now claimed to. I think the evidence of this would have been sufficient to have carried the case, but the defendant had his theory, which it was necessary to dispose of, and it was well disposed of by leaving the question of fraud or mistake in running the lines alluded to, to the jury. It might have been more satisfactorily disposed of by simply leaving to the jury, the question whether the smaller survey was not the true survey made and reported by the surveyor, and by which the deed was made. But still, the course adopted was unobjectionable, and there was no error in ruling as the learned judge did therein. The defendant could not pretend to be an innocent purchaser of the 60 acres without notice. The title disclosed that there was but 32, and not 60 acres in the purchase of Schweier from Riekabaugh, and there is no evidence that he bought more. If he did, it was his own folly not to be warned by what appeared in the line of his title.
Seeing no error in the record, the judgment is affirmed.