delivered the opinion of the Court. Two questions have been argued on the case reported.
1. The first is whether the petitioner, under the deed from Gates Thurston to the New-England bank, has acquired any title to the Poor lot, which at the time of that conveyance belonged to the heirs of Peter Thurston.
2. Whether any good title passed to the petitioner by his deed from Josiah Flagg and wife, of the 4th of July 1829.
As to the first question, it is manifest that Gates Thurston had no intention to convey to the New-England bank any part of the Poor lot, although he at the time was seised of an undivided moiety of that lot, as well as of the whole of an adjoining farm, which he held under a title derived from Dorothy Thurston, the wife of Peter, the former owner. In the description of the premises conveyed to the bank, the lines which relate to the present question are thus described. “ Thence south 61^° east 7 rods and 8| links to the factory road, thence on said road 14 rods and 5 links to land of the heirs of Peter Thurston, thence north 76j0 west to a stake and stones.” The point of intersection with the factory road is agreed by the parties, and it is also agreed that from thence to the Poor lot, which was then the land of the heirs of Peter Thurston, the distance is but 8 rods and 5 links. But the line is to run no further than to the land of the heirs of Peter Thurston, and the line of their lot, being fixed, is a boundary, which controls and limits the length of line ; according to the well established rule of construction in cases where the courses and distances do not correspond with the boundaries mentioned in the deed. If it could be proved that a stake and stones, or any other monument, had been placed by the parties at the termination of the 14 rods 5 links, some doubt perhaps might be excited as to the *151intention of the parties, but by the rules of construction it would not be sufficient to maintain the petitioner’s claim, because no such monument is mentioned in the deed. There is, however, no such proof. It was attempted to be proved on the trial, but the proof was altogether insufficient. One witness testified, that soon after the conveyance to the New-England bank he saw a stake near to the place to which the petitioner claims, but for what purpose it was placed there, and by whom, did not appear.
We think it, therefore, very clear, that the petitioner cannot maintain his claim to any part of the Poor lot, under his title derived from the New-England bank.
The second question depends on another question, viz. whether Josiah Flagg and his wife were ousted or disseised at the time of their conveyance to the petitioner; for it is very clear that if they were, nothing passed by their deed. It was incumbent on the respondent to establish this fact by unquestionable evidence, for the intention of the parties is not to be defeated by doubtful facts.
What then are the facts reported ? In 1819 2 acres and 30 rods, including the 96 rods in question, part of the Poor lot, were set off to Betsey Thurston, the widow of Gates Thurston. The commissioners appointed to assign her dower made no return of their doings into the probate court. But whether or not the assignment was defective and void for that omission, is not the question. The widow accepted the dower thus assigned, entered on the land, and continued to occupy it until March 1829, when she made a conveyance thereof to the respondent. In the month of April next after this conveyance, the respondent erected a fence between the farm and the 2 acres and 30 rods, and Josiah Flagg was present when it was erected, and was informed that the respondent claimed exclusive right and title to the 2 acres and 30 rods. Josiah Flagg never after attempted to disturb the respondent’s possession, although the petitioner, before he obtained the conveyance from Flagg, did make several attempts to enter upon and occupy the 2 acres and 30 rods ; but these attempts were repelled by the respondent, who continued to maintain his possession, and was in actual *152possession, in July 1829, when the deed from Flagg and wife to the petitioner was made.
These are the facts reported, and they are not questioned, but are submitted to the consideration of the Court as facts proved.
Now, that these facts show an ouster of Flagg and wife before and at the time of their conveyance to the petitioner, is too plain to admit of argument, and cannot be made plainer by any reference to authorities. If these facts do not amount to an ouster, it is not easy to imagine a case that would. It is not necessary, therefore, to consider the other objection to the validity of the deed from Flagg and wife to the petitioner ; as the grantors were ousted when they made their deed, the respondent having the exclusive possession, with the knowledge of both parties to the deed, it is clear that nothing passed by that instrument.
By the agreement of the parties, judgment is to be en tered according to the decision of the Court upon these questions.