The demandant contends, that, independ ently of any question of possession or disseizin, the deed from Hubbard to Bowles, of July 1st, 1836, under which the tenant claims, did not by its description purport to carry his south line, to which the demandant removed his fence and now claims, so as to include the triangular strip now in controversy. This question depends upon the construction of that deed and its descriptive terms.
It appears that about two years before, namely, on the 18th of February, 1834, Hubbard had conveyed to Buckland a lot on Pine street, the boundary of which could be exactly determined by admeasurement from Field’s corner, which was a well-known fixed point, on Pine street. But in consequence of some mistake in the admeasurement, the point supposed and understood both by, the grantor and the grantee to be the northerly bound of the land thus granted, was fixed between four and five feet too far north, and a fence had been erected, by the mutual consent of Hubbard and Buckland, on the line thus erroneously fixed, at its easterly end, on Pine street.
*81Such was the state of Buckland’s title under Hubbard and such the position of the fence, when the deed in ques= tion was made, from Hubbard to Bowles, July 1st, 1836, in which the estate is described as follows: “ Beginning at the south-east corner, at land of Cyrus Buckland, thence north on Pine street five rods twelve feet to a stake; thence westerly on my own land five rods ten feet to a stake; thence south on my own land four rods, to land of said Buckland, five rods and five feet to the place of beginning.” The question is, whether the south-east corner at land of Buck-land shall be construed to be the time line of Buckland’s land, or the fence which was set up by consent of both Buckland and Hubbard, under a belief, that it was the true line, and which was in fact the line of Buckland’s occupation ; and the court are of opinion, that it was the time line of Buckland’s land, and not the line of his occupation, as indicated by a fence placed there by mistake, which was intended. The fence had not stood long enough, if it amounted to a disseizin, to give Buckland any title or claim of right by possession; and the true line was capable of being precisely ascertained, by admeasurement from Field’s corner. Crosby v. Parker, 4 Mass. 110 ; Cornell v. Jackson, 9 Met. 150.
When a monument is mentioned in a deed, and there is no such monument on the ground, and the parties by consent, at the time or soon after, erect and place a monument, intending it as and for the monument described, it will be so deemed afterwards, as if it had been standing at the time. Makepeace v. Bancroft, 12 Mass. 469; Blaney v. Rice, 20 Pick. 62. But that rule does not apply to the present case. Here no fence was alluded to in the deed, as a monument. The fence was not set up with a view to make it a monument, and there was no uncertainty respecting the true line. It appears quite certain, then, that Hubbard owned up to Buckland’s true line, notwithstanding the fence ; and if he did, we think it is beyond doubt that'he intended to convey it; indeed, such is the direct effect of the words of his deed to Bowles.
*82Another point, relied upon by the demandant, was, that the tenant’s predecessor, Bowles, took his deed from Hubbard, when Hubbard was himself disseized; that nothing passed by the deed; that the defendant took no title under Bowles’s deed; and that he could not defend in this action. But, although Hubbard was disseized, when he conveyed to Bowles, and perhaps Bowles did not thereby become seized, it would not necessarily follow that Bowles would be wholly a stranger to the title. If he had no right of entry, yet he might have brought an action in the name of his grantor, and, upon recovery, held the land to his own use. But he did in fact enter, and remove the fence, and placed it on the true line, and remained in possession. Now, the demandant brings an action, which puts the title directly in issue; and, by way of rebutter, and to avoid circuity of action, the court are of opinion, upon the authorities, that the tenant may avail himself of his title, in defence to the present action. Wade v. Lindsey, 6 Met. 407.
Judgment on the verdict for the tenant.