The demandant was informed by the tenant’s agents that the tenant proposed to build a wall upon its own land at its own expense, and assented that the wall should be put in according to the line of the tenant’s land as established by the survey of one Raymond. Upon these facts, the tenant asked an instruction which required the jury to find for it, even if the survey of Raymond was erroneous, and the wall was thus on the demandant’s land. This instruction was rightfully refused. A mistake of fact honestly made by the demandant, as to the location of the boundary line of his lot, by which he was induced to assent to the placing of a wall thereon by the tenant, could not operate either to convey the land, or to estop the demandant from asserting his title thereto. The instruction *162that, if the demandant acted with any fraudulent intent to deceive or mislead, he would be estopped from maintaining the action, sufficiently guarded the rights of the tenant.
While it has been held that, in a matter of boundary, which is a question of the true line of division between adjoining estates, uncertainty may be removed by an arbitration and an award which, not directly operating to convey the land, will conclude the parties from disputing the boundary as thus determined, no such case is here presented. Goodridge v. Dustin, 5 Met. 363. Where a boundary line has been erroneously run between adjoining estates without fraud, and under a mutual mistake, one party is not estopped from claiming his own land up to the true line, because the other has, with his knowledge, erected buildings or incurred expense by reason of the mistake. Tolman v. Sparhawh, 5 Met. 469. Liverpool Wharf v. Prescott, 7 Allen, 494. An occupation according to such erroneously drawn line, if adverse and under a claim of right, would, without doubt, effect a change of title, if sufficiently long continued; but, within the period of limitation, the party who has thus permitted another to occupy beyond the true boundary may assert his own title. Neither lands nor any interest therein are to be conveyed by mere oral agreement; and the declarations or admissions of a demandant, made in good faith and by mere mistake, cannot estop him from proving the legal title to his estate, even if, but for such admissions or declarations, the tenant might not have incurred the expenditures which he has made. Tolman v. Sparhawh, ubi supra. Brewer v. Boston & Worcester Railroad, 5 Met. 478.
We are aware that some decisions in other States have established a different rule; but, as we deem that laid down by the presiding judge to be well sustained by our own authorities, it does not seem necessary to consider them.
Exceptions overruled.