Cudney v. Early

The whole controversy in this cause relates to a question of purely legal title; and the useless expense of the litigation in this court has been produced by the refusal of the defendant Absalom Early to produce the evidences of the title which he had covenanted with Cudney to warrant and defend. If those evidences had been produced, a verdict could not have been given for the plaintiff upon the demise from Mrs. Early; and the question would then have been fairly presented, upon the demise from Absalom Early, whether Cudney was in possession of any part of lot No. S, except that which was conveyed by his deed. That question is now presented for decision here, and it must be considered, and decided, before I proceed to inquire what relief the complainant is entitled to in this cause.

The surveyor who first run out the premises for the complainant, acted upon the supposition that if there was no stake and stones, as described in the deed, at the termination of the second course, he must run the whole number of chains and links called for by the conveyance. In this, however, he mistook the proper rule of construction, in reference to this deed ; for there is another boundary called for at the termination of the second course, to which the distance as called for by the conveyance must still yield. The deed calls for a stake and stones, for a distance of 20 chains and 20 links, and for the northwest comer of the east moiety of lot No. 8, as the termination of the second course. A stake and stones being a visible and definite monument, if there was such a monument at the time the deed was given, both of the other calls, which are less certain, must yield to it, if they do not agree therewith. But if no such monument in fact existed at the time of the conveyance to Cudney, or if, by lapse of time or otherwise, it is now impossible to ascertain the original location thereof, the call must be resorted to which is the most definite and certain *213of those that remain. That, in the present case, is the call for the north-west corner of the east moiety of lot No. 8; and to this the distance must yield, if they do not agree. Green testifies that when he subdivided the lot, in 1814, he placed a stake and stones in the centre of the north line thereof, and run a line therefrom, parallel to the east and west lines. If the east and west lines of the lot had been of the same length, this stake and stones would have been at the north-west corner of the east moiety of the lot, and would be the termination of the second course in this deed, although no such stake and stones existed, in April, 1825, when this conveyance to Cudney was executed. It is up to this point, as I understand the witnesses, to which the defendants claim; which point is about three rods west of the complainant’s fence. But it appears by the testimony of Green, as well as from the several diagrams and from the descriptions in the deeds which are in evidence, that the west line of lot No. 8 is longer than the east line. This therefore would carry the north-west corner of the east moiety still further from the complainant’s fence, which is erected upon the line run by Lapham. And if the complainant had not been so fortunate, in this cause, as to have it established, by one of the defendants’ witnesses, that the stake and stone which were planted by Green, in 1814, were still remaining, at the same place, at the time of Cudney’s purchase, in 1825, I should have been compelled to declare that the premises described in the deed were to be located by a line which would divide lot No. 8 into two equal parts or moieties. As there is no reference in the deed to the west part of the lot, as conveyed to and occupied by Van Natter, in 1814, and as Absalom Early owned the whole lot at the time of his conveyance to Cudney, the actual survey which was made by Green, at the time of the conveyance to Van Natter, is only material in reference to the fact sworn to by Elijah Early, junior, that a part of the stake and the stones placed at the north-east corner of Van Natter’s lot, actually remained there at the time of the conveyance to Cudney. That fact being established, I must presume the conveyance had reference to that stake and stones as the termination of the second course ; and both of the oth*214er calls in the deed must give way to that. The deed, there» fore, must be located by bounding the premises conveyed, by a line, on the east, running from that stake and stones, or the place where they once were, parallel to the west line of the lot; which will correspond with the division line as run by Green in 1814. I do not think there was such an acquiescence on the part of Absalom and Elijah Early in the survey of Lapham, as to make his location of the premises conclusive upon their rights; especially when it turns out that he was clearly under a mistake as to the principles upon which the location was to be made. He was not called upon to decide a question of law, but to locate the premises according to the deed ; and Absalom and Elijah Early acted on the belief that he had done so.

These questions being settled, it remains to be seen whether the complainant is entitled to any, and if any, to what relief in this suit. By the verdict in the ejectment suit, Mrs. Early recovered the whole of the complainant’s farm, together with the disputed strip of land, which strip it now appears belonged to her son. Under that recovery, she has the right, at law, to take possession of both; and to recover the mesne profits of both, for the time Cudney has been in possession. And a recovery of the mesne profits of the disputed strip of land by her would not protect him from a similar claim on the part of the real owner of that land. She must therefore be perpetually enjoined from taking possession of any part of the premises recovered in the ejectment suit, and from bringing any suit to recover the mesne profits thereof. But as it now appeal's that the disputed strip of land belongs to the defendant Absalom Early, the complainant must give up. the possession thereof to him, or to Elijah Early, without the expense of further litigation relative thereto; and without prejudice to the right of Absalom Earley, or of Elijah Early, to prosecute him for the mesne profits of the disputed strip, if they shall be advised so to do. The defendant in the ejectment suit would have been obliged to pay the costs, if Absalom Early had produced his title deeds, and taken his verdict, for the disputed piece of land, on his own demise, according to his right as now established. Cudney therefore has no valid *215claim to recover back the costs he has paid in that suit. But if he had succeeded here in showing himself to be the owner of the land in dispute, he would have been entitled, under the covenants of warranty in the deed, to an indemnity against the whole of the costs of that suit.

As the whole of the expense of the litigation in this court has arisen from the inequitable proceedings of the defendants in the ejectment suit, whereby Cudney was deprived of the opportunity of having his rights litigated and determined in the court of law, I cannot give them costs, as against him, upon the litigation here. He also had a right to come here for the purpose of shielding himself against the recovery for that part of his possession which was covered by his deed. But as he has failed upon the main question in litigation here, I shall not give costs in his favor against any of the defendants. The evidences of the title of Absalom Early to the west part of the lot must, if the complainant requests the same, be deposited with the clerk of this court residing in the fourth circuit, for the protection of the complainant’s title.