The case turns upon the construction to be given to the deed of Lydia Andrus to Henry Andrus, under whom Bradley, the defendants’ vendor, claims. This deed being prior in point of time to that to Parks, the plaintiff, is to be first satisfied. All the deeds are inartificial, illiterate, and difficult of construction. This difficulty is increased by the loss of the report of the commissioners who made partition of the lands of Ralph Andrus between his heirs. The jury however have found where the division line of the portion of the farm in Russell set off to Abel P. and Henry, the sons of Ralph, was. Both these portions came by deeds to Lydia. The question therefore is, What did the deed of Lydia to Henry Andrus convey ?
To ascertain this we must look at the whole description. The land is described as “ bounded northerly on Pine Hill Road, so called, and land of Charles Tinker, westerly on land of Charles Tinker, southerly partly on land of Lyman Bradley and partly on the Great Brook, and from the brook to the turnpike road on land set off Henry Andrus, and bounded northerly [easterly ?] on the turnpike road.”
Looking at the plan, it will be found impracticable to locate the deed; that the description is an impossible one; that its lines cannot be made to meet. Overlooking the defect of not giving part of the west line as on Bradley’s land, and that the brook is twenty seven rods south of the north line of Bradley’s land, you cannot run from the brook to the turnpike “ on land set off to Henry Andrus.” The Great Brook is at no point within twenty seven rods of that line as ascertained by the jury; nor, fading to pass from the brook to the turnpike on the line of *472“ land set off Henry Andrus,” is there any line given, by which you can pass; and therefore this southerly line, and consequently the quantity of land conveyed, is left wholly uncertain. The two parts of the southerly line cannot both be correct. That is impossible. The Great Brook is indeed a bound. So also is the land set off to Henry Andrus, a line twenty seven rods north of the brook. You must reject one of the two. By rejecting the brook, the description is plain; by rejecting the line of the land set off Henry Andrus, the tract conveyed is left wholly uncertain, and the deed would be void. The brook itself is within the land of Henry Andrus, as the dividing line is found by the jury, and you have neither the terminus a quo, the point at which it leaves the brook, nor the terminus ad quern, on the turnpike.
We must resort to the other part of the description for relief, and that describes the land conveyed as “ being all that part of the farm of Ralph Andrus, deceased, which was set off to Abel P. Andrus as his share of the said farm.” The southerly line of that division was the line running westerly from the monument near the south bar post on the turnpike to Lyman Bradley’s northeast corner. This line is a continuation of Lyman Bradley’s northerly line, and makes with it a straight line.
It thus becomes plain that the reference to the brook is a false demonstration, which being rejected, all parts of the description' are reconciled, and the deed in question from Lydia to Henry Andrus is made consistent with the prior deed of the elder Henry to Lydia, and the subsequent deed of Lydia to the plaintiff. This construction is also, the practical one put upon the instrument by the parties.
The rule, that monuments, natural or artificial, control in boundaries, is not inflexible. Davis v. Rainsford, 17 Mass. 207. A boundary, inadvertently inserted, may be rejected. Thatcher v. Howland, 2 Met. 241. Bosworth v. Sturtevant, 2 Cush. 392.
The other question has presented less difficulty. The jury found a conversion, under proper instructions from the court. The subject of the suit of trover was a personal chattel, and the trial of the title to the land is only collateral and incidental.
Verdict set a tid/í : judgment for the plaintiff.