On the trial, the only question was, whether a certain line of the defendant's land should run from an admitted point, north 85 east, or south 85 east. The defendant's deeds called for the latter course; and it was admitted that he, and those under whom he claimed, had had possession up to the line so run, for forty years; but between that and a line run north 85 east, he, and those from whom he derived title, never had actual possession. The defendant alleged that there had been a mistake in drawing the deeds which he produced in support of his title; that instead of the disputed line running "south 85 east," it ought to have been written "north 85 east;" and in order to show this, he offered to prove that those under whom he derived title, had always claimed to the line running "north 85 east;" and contended, that if it was not evidence to show the mistake, such claim when continued for forty years, was evidence from which the jury might presume a grant *Page 516 for the land up to the line claimed. But this testimony was rejected by the Court. The defendant then offered to prove by a witness, that two old men, then dead, had shown him the line running north 85 east, as the dividing line between the land of the lessors of the plaintiff, and the defendant; but it appearing that the defendant had taken the two old men, together with the witness, to the line, after the contest had arisen between the parties as to the line, the Court excluded the testimony. The jury returned a verdict for the plaintiff; and the defendant appealed. — The hearsay from the two deceased persons, being post litemmotam, was inadmissible evidence.
The claim of a line different from that of the deeds under which the claimants derived title, is likewise incompetent for either of the purposes for which it was offered. A claim merely, without possession, is nothing more than the declaration of the party himself. It cannot found the presumption of a grant for the land beyond the lines described in the deed; for there can be no such presumption, where there is no possession. Nor in like circumstances does such a claim, or rather declaration, tend in the least to establish a mistake in the description contained in the deed. The party's own declaration, unsustained by accompanying acts, is not evidence for himself; nor can it be offered by those who set up a derivative title under that party. There being no possession beyond the deed is conclusive on both points. The declaration, by itself, tends to establish nothing. InJones v. Huggins, 1 Dev. Rep. 223, an ancient survey was rejected, though urged not to be the act of the party, but of the surveyor who was then dead.
The exceptions being confined to the question of evidence, in which no error exists, the judgment must be affirmed.
PER CURIAM. Judgment affirmed. *Page 517