Jackson, ex dem. John Suffern and John S. Suffern, vs. John M'Connell, 12 Wend. 421

By the Court, Sutherland, J. The weight of evidence is decidedly in favor of the Lawrence survey, according to which the defendant was held since 1815. His deed corresponds with that survey. The survey was made with a view • to the giving of the deed. John S. Suffern, one of the lessors of the plaintiff, assisted in the survey in behalf of John Suffern, the other lessor, and the defendant’s grantor.

It was agreed between the parties, when the survey was about to be made, that Matthew M’Connell should point out the place of beginning, which was supposed to be well known to him, as he owned and occupied the lot adjoining 'on the north. He accordingly fixed the starting point, which was assented to by the parties and the survey was made accordingly. The defendant took possession according to that survey, and has held it ever since. Its correctness doés not appear ever to have been questioned, until about the time of the commencement of this suit.

If the location was shown to be incorrect, it could not, under these circumstances, be disturbed. Both parties participated in making it. It was not the act of the defendant alone. The vendor, by his agent, put the defendant into the possession of the lot as he now holds it, as being the land, which he was entitled to under his deed. It may be very questionable whether, under such circum?tances, a vendor can be permitted to allege any error in the location; but if he can, it certainly is incumbent upon him. to establish the error by the most incontrovertible evidence.

Every in-tendment and presumption should be against him. But the charge of the judge was not altogether accurate. It was calculated to impress upon the jury that the rule of law was, that the plaintiff was not bound by the location, if it was erroneous in any respect, unless he knew of the error at the time, and expressly agreed to be bound by it. This was the precise error of the judge in Rockwell v. Adams, 7 Cowen, 762, and for which a new trial was granted. The true rule will be found in that case. It is subsequently recognized in 6 Wendell, 467, and in M’Cormick v. Barnum, 10 id. 104.

A new trial must therefore be granted.