In England, heresay and reputation are evidenr' of boundary from the necessity of the case, (2 Term Rep. 55.1 Ld. Ray. 311) where there is no ancient terrier or map. Such evidence has also been received in Pennsylvania, though the same necessity does not subsist here in ordinary cases. But expa/rie depositions cannot be read in evidence to establish an independent title, as that one claimed under an improvement. They may also be received by way of corroboration of other testimony which has been given in the cause. Restricted and used for those purposes the two depositions may be i’ead.
*478After full argument by counsel on the testimony being closed, the court observed to the jury, that matters of facts as well as of law came before them for decision.- .As to the former it seemed necessary to determine, whether the fence was the originally agreed line between the two brothers, and whether it was changed to the lane at the time of the survey by the consent ef the uncle and nephew. On the latter point, exclusive of the direct testimony given, the peaceable possession of Jeremiah, and the total silence and inaetiveity of Thomas from 1759, until the commencement of the ejectment, were violent presumptions of right in the former, and of an acquiescence in the latter. Co. Lit. 6. b. So was the conveyance to the two Brandts; for though the language of the deed may be deemed the act of the scrivener in the first instance, yet by the execution of it, Thomas has adopted it as his own. The probability was, that if the fence was first fixed on as the division line, it was contemplated that an equal partition would be effected thereby; and it is obvious, that if afterwards the boundary was changed to the lane, it supersedes any prior agreement as. to the fence.
As to matter of law : The limitation act of the 26th March 1785, (2 Dall. St. Laws 282) bars the right of entry or recovery on any prior warrant, whereon no survey has been made, and on any prior settlement, improvement or occupation without other title, unless there has been a possession within seven years next before the bringing of the suit.
To this it may be answered, that the caveat and decision of the two land officers, amount to other title. But a ready reply occurs, ■that their decision is merely an order of survey, and the authority not being pursued, is of no avail. Considered by itself, it vests no interest; united with an ancient occupation, long neglected and abandoned, it confers no right or title.
Admitting however, the pretensions of the lessor of the plaintiff in their fullest extent, that the fence was the original boundary, which was never altered by consent, and that the limitation act is no legal bar, still the abandonment of the improvement, and the supine negligence of Thomas for so great a length of time as thirty-six years, living at no great distance from the land, interpose insuperable obstacles to his demand.
If in England, a long possession without a deed, (2 Inst. 118, 362) is preferable to an ancient deed without possession, the rule holds with much greater force in new countries, where the community are peculiarly interested in the cultivation of the soil, and man ual labor so much enhances the value of real property. Such are *479the grounds of policy in the law referred to, and such have been the uniform decisions of courts of justice, to prevent litigations on slight pretensions, and give security to landed titles.
Messrs. Duncan, Hopkins and Elder, fro quer. Messrs. Montgomery and Fisher, fro def.Verdict for the defendant.