Jeremiah Allen et ux. versus Luther Kingsbury, 16 Pick. 235

Wilde J. delivered the opinion of the Court. This is an action of trespass guare clausum fregit ; and the principal question is, whether the locus in quo was included within .the limits of the plaintiffs’ lot. It appeared at the trial, that this lot was held by the plaintiffs in right of the wife, under an assignment to her, as her share in the estate of Joseph Kings-bury, her father, and was bounded easterly and southerly on land set off to the widow of Joseph Kingsbury. This dividing line is described in the report of the commissioners appointed to set off the widow’s dower.

After giving various boundaries, they proceed as follows : “ to an oak tree marked, thence, on the heirs of Joseph Kingsbury, to another oak tree marked.” It was ruled at the trial, that this line from tree to tree was to be considered as a straight line ; and as there was no reference to any intermediate monument, or other extraneous matter for explanation, and no latent ambiguity, parol evidence was not admissible to prove that a different line between the two parts was marked by old monuments, or that the commissioners intended a different line, or that the parties supposed that a different line was the true line between them.

This decision of the court at the trial, we consider as in all respects correct. No other construction could be given to the return of the commissioners. When a line is given in any deed or other instrument of conveyance, to be run from one landmark to, another, it is a necessary inference, that a straight line is to be run from one of the termini to the other, and without regard to the correspondence of either course or distance, unless a different line is described in the deed or instrument of conveyance. Dogan v. Seekright, 4 Hen. & Munf. 125.

The construction of the return of the commissioners was therefore manifestly correct, if the parol evidence was rightly rejected, and we are of opinion that it was. As to the old monuments, they were not referred to in the return of the commissioners, and it appears by the report, that they were not erected at the time the dower was set off, but at some antecedent period, and for some purpose not known or explained. Any evidence therefore respecting them would have been irrelevant, and might have served to mislead the jury.

Nor was parol evidence admissible to show, that the commissioners meant to conform to the curved line marked by the old monuments. The meaning of the return, there being no latent ambiguity in it, must be ascertained by its language, and it would be a dangerous precedent, and in violation of a well known rule of evidence, to allow it to be varied, explained, or controlled by parol evidence. The other part of the parol evidence might be admissible to ascertain a doubtful line.

It was offered to be proved, that the plaintiff, Allen, in 1827 or 1828, sold the wood up to the curved line, and had said recently, that he did not then suppose he owned east of it. This evidence, we think, was not admissible, because the line in question was conclusively established by the return of the commissioners; and no parol evidence of this or any other description, can be allowed to control or substantially to vary the construction of the return. The same rule applies to the returns of sheriffs and other officers.

Evidence of usage or possession is never to be received to overturn the clear words of a deed or other instrument of conveyance ; and the acts and declarations of the parties are not admissible to show their understanding of the instrument. 2 Saund. Pl. & Evid. 697 ; Clifton v. Walmesley, 5 T. R. 564 ; Rex v. Varlo, Cowp. 248 Meres v. Ansell, 3 Wils. 276. And furthermore, we are of opinion, that if the parol evi ^ence had been admitted, it would not have changed the construction of the commissioners’ return, and would not have warranted the jury to limit the plaintiffs to the curved line.

For if the commissioners intended that as the dividing line, it must have been because they supposed it to be a straight line. It cannot be presumed that they caused this line to be run, oi they would have described it by the monuments. The inference therefore would remain strong, notwithstanding the parol evidence, that the line from tree to tree was intended to be a straight line, and that the quantity of land assigned to the widow was computed accordingly.

With regard to the objection, that the action is misconceived, and that it should have been brought by the husband alone, we are of opinion, that this case falls within that class of cases, where the husband may sue alone, or join with his wife, at his election, as was decided in the case of Clapp v Stoughton, 10 Pick. 470. Judgment according to the verdict.