Emery v. Fowler

Appleton, J.

— The plaintiff and defendant are owners of adjacent land, deriving title through various mesne conveyances from John O. Freeze. The question in controversy relates to the boundary line between their respective lots.

The plaintiff and Benj. F. Wing, under whom the defendant derives title, on June 9, 1846, entered into bonds to refer the dispute which had arisen in relation to the lines between their lots, to Samuel Taylor and Joseph Burgess, jr. and bound themselves, their executors and administrators, in the penal sum of one hundred dollars to abide by the decision of the arbitrators thus appointed. On the 24th of April, 1841, Wing conveyed the lot, the boundary line of which is in controversy, to the defendant. There is no evidence that the defendant, when he received his conveyance, had any notice of the agreement to refer, into which his grantor had entered. It is unnecessary to consider what would have been the effect of an award made before his title accrued. It is obvious, that he acquired the land discharged from all contracts, which his grantee had made, of which he had no notice, actual or constructive.

It seems, that on July 11, 1841, the referees, after notifying Wing and Emery, proceeded to adjudicate upon the matters in controversy and made their award. The hearing was ex parte, Wing not being present. The defendant had no notice of these proceedings, nor did he assent in any way to the doings of the referees. The award made under these circumstances, was offered by the plaintiff and rejected by the Court, and as we think, rightfully rejected. At the time of the hearing Wing had no title to the land, and could *102 not by Ms acts or omissions to act, affect the rights of his grantee. The award must be regarded as a transaction between other parties and having no binding force whatever upon the defendant.

John C. Freeze originally owned the lot embracing the land of the plaintiff and the defendant. The plaintiff derives his title by deed from him to Timothy Boutelle, dated July 2, 1832, and the defendant by deed from him to Stephen Nye of the same date. In the deed from Freeze to Boutelle, reference is made to the deed to Nye, and the tract conveyed to the latter is excepted from the operation of the deed to the former. Before these deeds were made, the lots to be conveyed were located upon the face of the earth, fixed monuments established by referees mutually agreed upon, and the parties to these several conveyances assented to and adopted such location.

Deeds were then executed by,the parties intended to conform with the location thus made. The respective grantees entered under their deeds, built fences and occupied in conformity with the location of 1832, till 1841, when a dispute arose. It seems that more land, is contained within the limits of the defendant’s land, as originally located upon the face of the earth, than is specified in the deed. The Court in substance instructed the jury, that if they found the facts to be as above stated, “thatthese boundaries and monuments were controlling, notwithstanding it might be found after-wards .that they embraced more or less than the quantity specified.”

Whether monuments are erected upon the face of the earth by the mutual agreement of parties, and a deed is given intended to conform thereto, or whether they are subsequently erected by them with intent to conform to a deed already given, those monuments must control, notwithstanding they may embrace more or less land than is mentioned in the deed. The quantity of land is always deemed of secondary importance when compared with fixed and determined boundaries. The instructions given are in accordance *103 with, the entire weight of authority, and the exceptions must be overruled. Waterman v. Johnson, 13 Pick. 261 ; Kennebec Purchase v. Tiffany, 1 Greenl. 219.

Exceptions overruled.

Shepley, C. J., and Rice and- Cutting, J. J., concurred.