The opinion of the Court was delivered by
Rogers, J.Without undertaking to decide whether the plaintiff’s title under the State of Virginia is good, a point which does not appear to have been seriously contested on the trial, or whether taking out a patent in this State, excluding the land in dispute, be an abandonment of that title, yet such reasonable doubt exists as to both these questions as to make them fair subjects of compromise. This was an important question in the cause. One of the witnesses says he was present when the land was divided between A. M’Coy and George M’Donald. That an agreement between Shields, who formerly owned the land, and Hutchinson, was related over in his presence, by which it was agreed to let Hutchinson fill his Pennsylvania patent if he would give Shields no more trouble about the Virginia entry or survey, which Shields contended was not good, whereupon it was agreed between them that the line should be run according to the Pennsylvania patent. That it was so done, and he blazed the line. Notwithstanding this testimony, however, the court instructed the jury, that even admitting there was such an agreement, it would not devest the plaintiff’s title under the Virginia entry. In this instruction we think the court was in error, for a compromise of a doubted or doubtful right is a sufficient consideration to establish the boundaries between conflicting claims. So it has been decided in a recent case, not yet reported, that the court will not relieve from the consequences of a mutual mistake of the law, when the parties have acted in good faith.
Judgment reversed, and venire de novo awarded.