the opinion of the Court was delivered by
Green, J.:First assignment. — The defendants’ offer to prove that James Hughes was the real owner of the lands articled to be sold by Mrs. Cooke to Thomas Hughes was not an offer to alter or contradict the written articles. Nor was it an offer to set up a parol, title to land against the owner of the paper title resisted by the latter. On the contrary, the proposition was to prove that, notwithstanding the written agreement was made with Thomas Hughes as the grantee nominally, by an outside and independent agreement between Thomas Hughes and his father, James Hughes, the former was named as purchaser, for a certain special purpose which James Hughes desired to sub-serve. This did not alter the relation existing under the articles between Mrs. Cooke and Thomas Hughes. And as the evidence was followed by proof that Thomas Hughes subsequently recognized the title of James *219Hughes by allowing him to take possession of the land and treat it as his own, and by purchasing it himself from parties to whom James Hughes sold it, it cannot be said that the evidence offered and admitted was in antagonism with the title of Thomas under the articles with Mrs. Cooke. Of course, if James Hughes was the real owner, his declarations and acts against his interest during the continuance of his title were competent evidence in this suit, and there was no error in admitting them.
Second assignment.- — Undoubtedly the offer of evidence covered by this assignment was competent and was properly allowed. Whether the testimony given in under the offer accomplished its purpose was matter for the jury. If it absolutely threw no light whatever upon the controversy, it shouid have been stricken out on motion, but if it tended, of itself or in connection with other evidence, to illustrate the true location of the disputed line in any degree, its efficacy for that purpose was a question solely for the jury. We can only deal with the offer, and we cannot say either that the offer was incompetent or that the testimony given did not tend in some degree to sustain the offer. Smith, the surveyor, having seen the deed from the administrators of Morris to Rinehart, and having been on the ground and run some of the lines, expressly testified that the deed did not embrace the land in dispute, and gave his reasons for his opinion. The sufficiency of those reasons was for the jury and not for the Court.
Third assignment. — The printed appendix does not show that any objection was made to the competency of Abraham Staggers, or any exception taken, when he was sworn. The counsel for the defendants says that the objection was not made at the trial that the witness was incompetent on account of the death of James Hughes, and in the absence of a bill of exceptions showing it, we cannot assume it.
Fourth and, fifth assignments. — We do not see how the fact that James Hughes, as owner of “John’s Bottom,” and Flenniken, as part owner of “White Thorn,” agreed, by way of compromise of a dispute between them-, that the White Oak should be regarded as the north-east corner of “White Thom” and the north-west corner of “John’s Bottom,” could disprove or tend to disprove the fact that the White Oak was the patent corner of “Wolf Den,’’and therefore think it was an irrelevant fact. In so far as the declarations of James Hughes, offered by the plaintiff, were merely declarations in favor of his *220own title, they were certainly incompetent. Had he been entirely disinterested and enjoyed special means of knowing the location of the lines and corners of the tracts in question, his declaration^, made long ago, might have been admissible as reputation, but not otherwise: 1 Green Ev., § 145; 1 Whart. on the Law of Evidence, § 191.
Sixth assignment. — As the witness- Bayard, whose declarations were offered and rejected under this assignment, was alive and present in court, and examined ás a witness at the trial, it certainly was not competent to give his declarations in evidence. They would be secondary evidence in any point of view, when the primary was immediately available.
Seventh assignment. It is not explained how the extent of the Philip Friend land on the north line of John’s Bottom would show the bearing of John’s Bottom from the poplar, or in what manner it could assist in locating the White Oak corner of Wolf Den, and hence we cannot see the error of the exclusion of the testimony offered.
Eighth and ninth assignments. — The plaintiff’s points covered by these assignments, as we understand them, substitute the patent courses and distances as the next best evidence of location after the original marks on the ground are gone. They ignore all other proof of the original marks than the marks themselves, but it is at once apparent that if there is evidence of living witnesses who saw the marks before their destruction, or if there are other conditions on the ground which are entirely inconsistent with the correctness of the courses and distances mentioned in the patent, such evidence is of superior weight, and will prevail over the patent courses and distances. Thus, in Lodge v. Barnett, 10 Wr., 484, Mr. Justice Agnew said: “The courses and distances in a deed always give way to the boundaries found upon the ground or supplied by proof of their former existence, when the marks or monuments are gone. So the return of a survey, even though official, must give way to the location on the ground, while the patent, the final grant of the State, may be connected by the return of same, and if it also differs, both may be rectified by the work on the ground.” Of course, the best proof of the work on the ground is found in the original marks and monuments if still existing, but if not, proof of their former existence must be next best in order. There was much testimony of this character given by the defendants, and we do not think it would be proper to cast it all out by *221the application of a rule which, is quite secondary and inferior in its character.
Tenth assignment. — The plaintiff’s third point does not propound the act of James Staggers in pointing out the eastern boundary of his land as having occurred while the Statute of Limitations was running, and it therefore lacks a vital element of abstract truth as a legal proposition, which would make its naked affirmance improper. The only evidence we can find in the case to which this point could apply is that of Aaron Morris and John Morris, and that testimony falls far short of proving disclaimer of any land in dispute as outside of James Staggers’ boundaries.
Eleventh assignment. — The plaintiff’s fourth point re-', quired the Court to say''that the entry of Ryly Morris, a stranger, upon his mere declaration that he was authorized by Thomas Hughes, without averring the truth of the declaration, would toll the statute. Certainly this cannot be, as it would follow that the statute might be tolled in this mode without any entry by Thomas Hughes or by one who was really his authorized agent.
Judgment affirmed.