KING V. WATKINS et al.

(Circuit Court, W. D. Virginia. September 19, 1899.)

1. EVIDENCE-ANCIENT DOCUMENTS.

The fact that an instrument is an ancient document does not affect its admissibility in evidence further than to dispense with proof of its genuineness, where it is otherwise admissible.

2. BOUNDARIES-ESTOPPEL-PRIVATE SURVEY BY REMOTE GRANTOR.

A private survey made at the instance of a remote owner of lands, through whom a plaintiff in ejectment claims title, does not constitute an estoppel against such plaintiff, to prevent him from claiming in accordance with his true boundaries, in favor of strangers to such title who claim adversely thereto, and who at the inception of their claims had no knowledge of such title or of the survey.

3. SAME.

The fact that a report of a private survey of a grant of lands was filed among the papers in a chancery suit involving a portion of such grant, and through the decree in which a plaintiff in ejectment derives his title, does not render such survey conclusive on him as to his boundaries, where it does not appear for what purpose it was introduced in evidence, or that it was recognized as accurate by the court, but where, on the contrary, the decree adjudged to plaintiff's predecessors in title a much greater quantity of land than, according to the survey, was embraced in the entire tract.

4. SAME-EVIDENCE-DECLARATIONS OF DECEASED PERSON.

A report made by a surveyor of a private survey of a tract of land made by him at the instance of the owners is not admissible, under the law of Virginia, to establish the boundaries of the tract, in litigation after the surveyor's death, on the ground that it constitutes the declarations of a deceased person.

5. SAME-SURVEY OF OTHER TRACTS.

Under the law as established by decisions in Virginia, another survey, made by a different surveyor at a different time, is not admissible to show the boundary lines of a survey in controversy.

6. SAME-DEED OF OTHER TRACTS.

To render a deed admissible in evidence upon the question of the boundary of a tract or grant other than the one described therein, it must contain a call for a corner or boundary line common to the two tracts, and, in the absence of such call, it cannot be rendered admissible by parol evidence that the two tracts had in fact a common corner or boundary. 7. SAME-DECLARATIONS OF ADJOINING Owner.

The declarations of a deceased person are only admissible to prove the boundary line of a tract of land, on the ground that when they were made he was the owner of an adjoining tract, where his conveyance calls for such line as a common boundary; hence proof that he was in possession under a verbal contract cannot render such declarations competent. 8. SAME CONSTRUCTION OF SURVEY.

The rule that calls for monuments in a survey prevail over courses and distances does not apply to mistaken or false calls; and where it is shown that the greater portion of the boundary of a grant of 500,000 acres was not run on the ground, but was platted in, and that the surveyor was mistaken or ignorant as to the true location of the monuments called for, so that, if they are taken as marking the boundary, the tract would contain but little over 100,000 acres, while as platted, according to the courses and distances given, it contains the quantity called for by the grant, the courses and distances must prevail, as being in accordance with the intention of the parties.

Action of ejectment to recover the Virginia portion of a grant of 500,000 acres lying in Virginia, West Virginia, and Kentucky. See King v. Campbell (C. C.) 85 Fed. 814.

98 F.-58

The subjoined diagrams will aid an understanding of the opinion. Fig. 1 is a plat of the Robert Morris 500,000-acre tract, returned by surveyor Taylor, with his certificate of survey. Fig. 2 represents the locality of the grant according to actual survey, the plaintiff contending for the location shown by the exterior lines, A, P, H, I, J, M, A, and the defendants contending for the location shown by the lines included therein, and indicated by the letters A, P, Q2, ZZ, MO, M2, A.

Rulings of the court during the trial.

Maynard F. Stiles, Daniel Trigg, and S. L. Flournoy, for plaintiff. R. R. Henry, W. E. Burns, Maurice G. Belknap, and John A. Sheppard, for defendants.

PAUL, District Judge. In this action the plaintiff asserts title to a tract of 500,000 acres of land lying in the states of Virginia, West Virginia, and Kentucky, under a grant of the commonwealth of Virginia to Robert Morris dated June 23, 1795. The defendants, J. N. Watkins and others, claim to hold certain lands in Buchanan county, Va., under patents from the commonwealth junior to the grant of the plaintiff. They further claim that the lands which they hold under their grants are not within the boundaries of the lands to which the plaintiff claims title. The question of boundary, therefore, becomes an important one. The plaintiff, King, has introduced evidence to trace his title from the original grantee to himself. It is not necessary, for the purpose of deciding the question now before the court, to state here in detail the various conveyances and transfers on which he asserts his title. One of them, however, vests the title in John Peter Dumas, trustee. Plaintiff having introduced evidence tending to locate the boundaries of his grant according to his contention, the defendants offer in evidence a deed from Dumas, dated September 29, 1846, conveying to John Joseph Mary Schmit Thornfield 300,000 acres, to be cut off from the 500,000-acre tract, containing and reserving therein a mortgage for the purchase money; a deed dated October 1, 1846, from said Thornfield to Aguste Marie Francois Fermin Noverre De Sericourt and Louis Antoine Desverges De Maupertuis for the same land, subject to said mortgage; a power of attorney dated October 15, 1846, from said Sericourt to Louis Chitti, to manage said land; a power of attorney, of same date and of like nature, from Dumas to Chitti; a power of attorney dated February 23, 1847, from Sericourt and Maupertuis to Adolphe Julian Lafferriere, said Chitti having declined to act further as such attorney in fact; a decree of the circuit court of Kanawha county, then in Virginia, rendered January 21, 1859, in certain consolidated chancery cases affecting the Swan estate, and in which the trustees of said estate, through whom plaintiff claims, were appointed, which decree, among other things, declared that the said deed of September 29, 1846, from Dumas to Thornfield, "conveyed to him 300,000 acres of the Swan lands, lying in Logan and Tazewell counties, and that the same is now vested in A. D. De Maupertuis, subject to the mortgage, for the purchase money due to said trust," and decreed that said Maupertuis "hold the said 300,000 acres, situate in Logan and Tazewell counties, in fee simple, subject to the mortgage contained" in the deed aforesaid; a contract dated December 1, 1846, between said Chitti and one H. B. Harman, a surveyor, whereby said Harman agreed, for a stipulated price, to survey four lines of said 500,000-acre tract, and one line of the adjoining 480,000-acre tract; and a survey and report made by said Harman of the tract of land claimed to contain 500,000 acres, but which, according to said survey, contains 111,000 acres,-the offer

of the preceding documents being preliminary to the offer of the survey and report, to which report is attached the receipt of Harman to Lafferriere for the contract price. To the introduction of this survey and report the plaintiff objects. The defendants insist that they are admissible for the purpose of showing the true boundary of the land in controversy. It is claimed that the report, including the survey, is admissible in evidence—

First. Because it is an ancient document. The doctrine of admitting ancient documents in evidence, without proof of their genuineness, is based on the ground that they prove themselves, the witness being presumed to be dead. The doctrine goes no further than this. The questions of its relevancy and admissibility as evidence cannot be affected by the fact that it is an ancient document. It is no more admissible on that ground than if it were a newly-executed instrument. Greenl. Ev. §§ 21, 142, 144, 576. Besides, the genuineness of this document has been proved by calling a witness to prove the signature of H. B. Harman, the surveyor, and the doctrine touching ancient documents does not apply.

Second. It is claimed that this evidence is admissible by way of estoppel. The court is unable to see how the doctrine of estoppel can be applied by the defendants in this case, based on the survey made by Harman, so as to estop the plaintiff from asserting his title to the land otherwise than as the boundaries are ascertained by the survey of Harman. Bigelow on Estoppel says, of the kind of estop pel sought to be asserted here, that it consists of "facts in pais," acts, admissions, or conduct, which have induced a change of position in accordance with the real or apparent intention of the party against whom they are asserted. Again, the same writer, speaking of estoppel by conduct, says (page 543): "In its most common phase, this estoppel is founded upon deceit, and has its justification in the duty of courts to prevent the accomplishment of it." The principle thus announced can have no possible application in this case. Nor can we invoke the doctrine of estoppel by agreement. That King, a remote purchaser of a tract of land sold and the sale approved in a pending chancery cause, whether it be a public or private sale, can be bound by the survey made by Harman, as to the boundaries of the land in question, and that the defendants can plead the survey as an estoppel, does not seem to demand discussion. The survey was an unofficial, ex parte, and purely private proceeding, and though the report and plat of the survey are produced by the defendants from the papers in chancery causes pending in Kanawha county, in which some of the affairs of the claimants of the land were settled, and in which the sale to plaintiff's grantor was made, they produce nothing to show through whom or for what purpose they got there, or that any action whatever was had with reference to them. On the contrary, it ap pears from the decree offered by defendants in this connection, from the same court and cases, that more than 11 years after this Harman survey was reported, according to which the tract contains but 111,000 acres, that court held that the deed from Dumas to Thornfield for part of the tract in question "conveyed to him 300,000 acres of the Swan lands," and decreed "that the said A. D. De Maupertuis hold