The opinion of the Court was delivered by

The first error assigned.is an exception to the opinion of the court admitting evidence to prove that the courses and distances, as stated in the - deed of conveyance from Patrick Dufiield and wife to the Bixlers, would, if run on the ground, include the land in dispute; and that the division line, said to be run by George Monroe in 1819, never was marked on the ground. It is impossible to perceive any valid objection to the admission of this evidence; for certainly it was evidence which tended to show that the land in dispute, in this action, was included in, and conveyed by' the deed from Dufiield and wife to the Bixlers; and whether it was so included and conveyed, or not, seems to have been the chief matter in issue.

The second error is also an exception to the opinion of the court, admitting articles of agreement, dated December 29th, 1838, which were entered into by John Dufiield, Thomas Dufiield, Joseph Robinson and wife, and R. E. Dufiield, with Joseph Bixler, making a line, run on the ground by William West, the true boundary of the land on that side, as conveyed by Patrick Duffield, their ancestor, and from whom both parties claimed, to be read in evidence, connected with an offer to give further evidence, showing that the agreement was executed with the knowledge, and by the advice of Rice, the plaintiff; and that he, in taking a conveyance from James Dufiield, Robert E. Dufiield, and Joseph Robinson and wife, of all the interest which they had respectively in the estate of the said Patrick Dufiield deceased, had excluded the land in dispute, by describing it according to West’s survey. This evidence was unquestionably not only admissible, but very material to the issue between the parties; for, as will be shown in the sequel, Rice, the plaintiff, under one aspect of this case, had not even the shadow of right to recover in it, unless it was under the conveyance just mentioned, and which the defendant proposed to give in evidence. But even supposing that the plaintiff, as the administrator with the will annexed of Patrick Dufiield, had such a right under the will as would have entitled him to recover all the land belonging to the testator, at the time of making his will, which he did not part with afterwards in his lifetime, still the parties to the articles of agreement had such an interest in the land, as would have enabled them to settle a mere *454question of boundary connected with it; unless indeed it could have been shown that such settlement would have affected the rights of the creditors of the testator.

The third error is an exception to the competency of Thomas Duffield, as a witness for the defendant below, taken on the ground of interest, as it was alleged. The court below decided that no interest, such as w’ould render him incompetent, had been shown, and therefore overruled the objection made to him by the counsel of the plaintiff It is sufficient to say that no interest has been shown here, going to affect his competency, and therefore he was properly admitted to testify as a witness on behalf of the defendant below. It seems also that the plaintiff did not consider him incompetent to testify for him, for he made him his witness after-wards, as it appears in the course of the trial.

The fourth error is an exception to the opinion of the court, in permitting the counsel of the defendant to ask Robert E. Duffield, while he was undergoing a cross-examination by the plaintiff’s counsel, whether what he sold to Rice (meaning the plaintiff) was not in writing. This question was put to the witness in connection with an objection to his answering a previous question, just put by the plaintiff’s counsel to him, asking him whether he did not describe and sell to Rice all his' interest in the land, up to the line as run by Monroe. It was certainly correct to ascertain first from the witness, before he answered the question asked by the plaintiff’s counsel, whether what he had sold to the plaintiff had not been reduced to writing between them; because if it had, the writing was better evidence than anything that the witness could state from his recollection on the subject; and hence, what he would have stated in answer to the plaintiff’s question, could not be admitted as evidence at all in the case.

The fifth error is an exception to the admission in evidence of the record of a former action of ejectment brought by the plaintiff in this case, but not as administrator with the will annexed of Patrick Duffield, against the present defendant for the same land. This evidence, it seems, was offered and given for the purpose of showing that the plaintiff claimed the land in that action, in his own right, and not as administrator under the will, and that upon trial a verdict and judgment were given against him. We think the evidence was admissible, and such as possibly might have been of some weight in turning the scale in favour of the defendant in this action, and therefore cannot say it was inadmissible.

The sixth error is an exception to the court’s permitting the defendant’s counsel to ask George Baker, a witness, sworn on behalf of the plaintiff, to give evidence on the trial of the cause, “ what the talk was, referred to in his examination in chief,” when he stated that “ Bixler and Duffields had some talk about the quantity of land, because they had not their papers with them.” If we judge from the answer of the witness to the question, it *455would not appear to have done the plaintiff any harm, nor to have had much bearing upon the cause in any way. We therefore think there is no error in it.

The remaining errors, no less 'than nine in number, are exceptions to the instruction given by the court to the jury, all excepting the last, upon points submitted for that purpose by the counsel of the plaintiff below.

The seventh error is the first of them, and is founded upon the answer of the court to the plaintiff’s third point, in which his counsel requested the court to charge the jury, “that the deeds made by the legatees, (meaning James Duffield, Robert E. Duffield, and Robinson and wife,) to Rice, the plaintiff, do not amount to an election to take the property as land, so as to devest the title of the executors or administrator with the will annexed; they are more properly assignments of the legacies.” To this the court answered, “We think these deeds do amount to an election by the parties to them, to take as land so far as they go.” It is very evident from the tenor of the deeds, that the grantors considered themselves as having an interest in the land, as land, and to an extent that was inheritable too; for the land is expressly mentioned as the subject matter of the conveyance, and words of inheritance are likewise employed therein in conveying it. It is also equally evident that the grantee, having taken the deeds in the form in which they áre, must have been of the same opinion. If the plaintiff, however, as administrator, had an interest in the land, or an authority over it under the will, for the purpose of paying the debts of the testator, those deeds could not divest him of it; nor did the court tell the jury, in their answer, that it did; but strictly, perhaps, in order to have answered the point fully, they ought to have expressed their opinion as to the effect of the deeds in this particular. This defect, however, seems to be supplied by their answer to the plaintiff’s first and second points, where it is answered in his favour.

The eighth and ninth errors are exceptions to the answers given by the court to the plaintiff’s fourth and fifth points. The plaintiff’s counsel below, in propounding these points to the court, have assumed matters of fact, which were not conceded by the opposite party, but actually denied, and evidence given by him, tending to prove that they were not as stated by the counsel of the plaintiff in these points. The court, therefore, on this ground might have declined answering them, because counsel in stating their points have no right to assume facts that are controverted, and which from the evidence the jury may properly find do not exist. In such case, if the counsel wishes to have the direction of the court to the jury as to the law that may become applicable, he ought to state the facts hypothetically. But the court, as it would seem, being willing to meet the request of the counsel so far as they could, told the jury, “ These points, if you find the facts as stated *456in them, we answer in the affirmative. The law undoubtedly is, that the marks made upon the ground, are the true boundaries. You must, however, answer the points intelligibly so far as the facts are concerned, view the whole testimony, and from it determine whether the facts are as therein indicated, or as stated by the defendant in his points, which we will presently read to you: and if the facts are as he contends, that no such marks were there, &c., but that the lines were made after Bixler purchased, by mistake, and subsequently corrected, by the parties, in the manner indicated by the testimony, then the result may be different. If, however, you find the facts as there stated for the plaintiff in these two points, then we instruct you the law is as he states.” This direction was not only as favourable to the plaintiff as he had any right to ask, but it was going as far as the court could well go, without intrenching upon the province of the jury, by deciding on the facts.

The tenth error is an exception to the answer given by the court to the plaintiff’s sixth point. The direction requested in this point was, that “ the deed or agreement of John Duffield, Thomas Duffield, Robert E. Duffield and Robinson and wife to Bixler, if made without any consideration paid by him to them, and if the facts above supposed are true, does not vest any title to the land in Bixler; and at all events, as there was no deed or agreement made either in writing or by parol, by the other legatees, conveying said land to Bixler, said agreement could not defeat the plaintiff’s right to recover in this suit.” To which the court replied, “ This point we cannot answer in the affirmative. We think there was a sufficient consideration, if you believe the testimony.” The objection to this answer is, that it only meets the point in part, and also that, so far as it goes, it is erroneous. The deed or agreement here referred to, was not properly a deed of conveyance, nor intended by the parties to be so, but of compromise and settlement of boundary, fixing definitively the location of a division line of land, including the land in dispute, which Patrick Duffield, the father of John Duffield, Thomas Duffield, Robert E. Duffield, and Mrs Robinson, in his lifetime, had sold and conveyed to Bixler. A dispute, according to the evidence, had actually arisen between the parties in regard to it, and the only object of the deed or writing was, to adjust and settle it. Now, it is too well settled to be questioned, that an agreement of compromise, or settlement of a dispute between owners of adjoining lands, as to the division line between them, contains in itself a sufficient consideration to make it binding, when fairly made, on both parties. The peace and quiet of society require that it should be so. In this case it must be taken, that the agreement only determined the precise and true location of the land, which Patrick Duffield, the father, had sold to Bixler and been fully paid for in his lifetime by the latter. The residue of this point, which the plaintiff com*457plains was not answered, was, we think, substantially answered in his favour in the answers given by the court to his first and second points, when the court yielded their assent to the proposition of the counsel for the plaintiff, that the title to the land, which properly did belong to the testator at the time of his death, became thereupon vested by operation of the will in the executors, and that so long as debts, &c., remained unpaid, it was not in the power of some of the legatees to elect to take the land as land; and that the right thereto still remained in the administrator with the will annexed. This was certainly going as far as the plaintiff had even the colour of right to claim.

The eleventh error is an exception to the opinion given by the court to the seventh point submitted by the counsel of the plaintiff below. By this point the court were requested to instruct the jury that, “ if any of the debts of the testator or of the legacies given by him, or of the expenses of the funeral, or of administering on the estate, were still unpaid, the title to the land was in the administrator with the will annexed, and no act or election by any or all the legatees could devest it; and it lies on the defendant to prove all these to be paid, or he must fail.” The court replied, “ This point, as a general legal proposition, would be true. But if the jury believe the facts are as stated in the defendant’s third and fourth points, that the plaintiff took out the letters of administration after he became the owner of the land, (meaning after he obtained a transfer from James Duffield, Robert E. Duffield, and others) with a full knowledge of all the facts in relation to the mistake in the line, (meaning the division line,) and its correction afterwards; and that there was personal property to the extent indicated by the latter part of the defendant’s first point, we cannot instruct you that the defendant must fail by reason of the small amount of debt shown to exist against the estate of Duffield, at this late date.” The third and fourth points of the defendant referred to here by the court, requested the court to direct the jury, “ if they believed that John Rice, the plaintiff, purchased out the right, title and interest of James Duffield, Robert E. Duffield, and Robinson and wife, to the estate of Patrick Duffield deceased, of which he died seised, at the times and under the circumstances given in evidence by the agreement and deeds for that purpose, and that he knew at the time of his purchase that there was a mistake as to the line between Patrick Duffield and Bixler, and that the same had been rectified by the agreement of the 29th of December 1838 in an amicable manner, and especially if he had advised the parties to that agreement to sign it, and thus settle all dispute about the division line; he cannot recover in this action.” The few and very small claims of which evidence was given against the estate, if not actually paid, were barred by the statute of limitations, and therefore no longer chargeable upon the estate, so that the plaintiff could have no right to *458recover the land, as administrator with the will annexed for the purpose of paying debts under the provision to this effect contained in the will. Culpepper v. Aston, (2 Chan. Cas. 115; S. C. 223); Roper v. Radcliff, (9 Mod. 171); S. C. 2 Eq. Ca. Abr. 508. But, admitting the estate to be liable to the payment of the small amount of the claims exhibited-, it was impossible that the rights of the creditors could be affected by the settlement of the division line agreed on by the heirs or devisees of the testator, as it left land clear of all dispute of greatly more than sufficient value to satisfy the amount of those claims. Hence it appears to me, that it was competent for the heirs or devisees to settle the dispute about the division line with Bixler, as their rights alone were to be affected by it; and though it seems that all the heirs or devisees of the testator were not in" the country to join in the settlement of the line, yet until their clear dissent shall be shown, it ought to be regarded as conclusive upon the plaintiff as administrator cum testamento annexo, and most clearly so if he advised it, whether he claims to recover the land as administrator or as assignee of James Duffield, Robert E. Duffield, and Robinson and wife.

The twelfth error is to the answer of the court on the plaintiff’s eighth point; in stating, as the counsel for the plaintiff in error alleges, to the jury matters as facts which were not in proof, instead of answering the point as put, and in refusing to answer it as put. By this eighth point the court were requested to instruct the jury, that “if Bixler, on the trial of the ejectment of Rice against Bixler, mentioned in the fifth error, made the defence, that Rice, claiming under deeds from the heirs and legatees, could not sustain a suit for the land; that those- legatees were only entitled to money legacies, and not land, and the title was in the executors ; and on this defence obtained a judgment in that case in defendant’s favour, he cannot now turn round and assert the title to the land to have been in those heirs and legatees, and in Rice under them; nor in himself under them, nor deny that the title to the land is in the administrator with the will annexed.” To this the court responded, “ The facts stated in this point were not the only defence taken in the case referred to; nor the only ground on which the judgment was given for the defendant there. Besides that, it was between other parties and in different rights; we cannot, therefore, instruct you that the defendant is precluded from denying the title to the land being in the present plaintiff.” We think it would have been error in the court to have instructed the jury as the plaintiff’s counsel requested. No authority has been adduced to show that the defendant cannot, in a second action of ejectment, brought against him for the same land, repudiate the title which he set up to defeat the plaintiff in the'first. One action of ejectment, in which there has been a trial, verdict, and judgment, does not.conclude the parties. Suppose the defendant, *459on the trial of the first action, were to defeat the plaintiff’s recovery, by showing an outstanding title in a third person; and that the plaintiff thereupon purchased that outstanding title, and then brought a second ejectment, it will scarcely be pretended, I think, that the defendant, on the trial of it, would be.precluded from setting up another outstanding title in a different person, still better than the one which he- used on the trial of the first action. The plaintiff in an action of ejectment must recover upon the strength of the title which he shows to be vested in him, unless there has been some relationship between him and the defendant, such as landlord and tenant, or the plaintiff be the purchaser of the defendant’s interest in the land, whatever it may have been, at a judicial sale, where the defendant is estopped from denying the plaintiff’s right to recover. But it is clear that in the present case, there is nothing of the sort to create an estoppel on the part of the defendant.

The thirteenth error, which is an exception to the answer given by the court to the defendant’s third and fourth points, has been passed on already, in what has been said on the eleventh error.

The fourteenth error is an exception to the answer given by the court to the fifth point of the defendant, because the court did not answer it in the negative. The defendant by this point requested the court to instruct the jury, “ that the agreement between John Rice and Robert E. Duffield, which was given in evidence, afforded proof that the said John Rice was not prosecuting this action for the benefit of the widow of Patrick Duffield, inasmuch as he bound himself thereby to pay the widow the interest of one-third of the purchase money.” To which the court replied, “This agreement, with the other evidence in the cause, is evidence in relation to whose benefit this suit is prosecuting. The effect, and benefit of it, however, you must determine.” We can perceive no error in this answer; for why should the plaintiff agree to pay the widow one-third of the whole purchase money of the land, if it were to be sold for the purpose of paying debts of the testator?

There is nothing in the fifteenth, which is the last error assigned.

Judgment affirmed.