North 8000 haber

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 sig. nature 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 estoppel 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

the said 300,000 acres." There is no contract between plaintiff, or those under whom he claims, and defendants, concerning said survey, or any other matter, and no privity whatever between them, nor is there any claim of any representations relative to the same. Indeed, the defendants have laid stress upon their assertion that, when they acquired their claims of title, they had never heard of the Morris grant or of its claimants. Hazardous, indeed, would it be to make an experimental survey of one's own land, or to purchase land of which some remote owner or claimant had chanced to make such survey, if, as contended by defendants, that survey, however erroneous, could afterwards be invoked, even by a stranger, to estop the owner from asserting title according to his true boundaries. There is wanting in the present case every element of estoppel.

Third. It is further claimed that this Harman survey was filed in the papers in said chancery cause in Kanawha county, and was notice to the plaintiff, King, and that he is therefore bound by it, and estopped from questioning the boundaries established thereby. It will be noted that King purchased from Le Moyne, Le Moyne from Armstrong, and Armstrong from Reed, the trustee, who sold by direction of a court of chancery. The court is at a loss to see how a purchaser of the 500,000-acre tract of land, whether at a public or private sale, whether judicial or not, could possibly be bound by such a survey, whether he had notice of it, either actual or constructive. Notice could have no effect, unless it created an estoppel.

Fourth. The remaining ground upon which it is insisted that this survey should be admitted as testimony is that it is competent evidence to prove the declarations of a deceased person as to the boundary lines of the land in question. The doctrine relied upon has been so frequently and thoroughly discussed on other evidence offered during the trial of this case that the court finds no difficulty in applying it in this instance. Harriman v. Brown, 8 Leigh, 697, is a leading case on the subject, and has been cited in numerous decisions, and frequently quoted by text writers. It is thus stated as the rule in Virginia:

"Evidence is admissible to prove declarations as to the identity of a particular corner, tree, or boundary, made by a person who is dead, and had peculiar means of knowing the fact, as, for instance, the surveyor or chain carrier upon the original survey, or the owner of the tract or of an adjoining tract calling for the same boundary, and also tenants, processioners, and others whose interest or duty should lead them to diligent inquiry and accurate information as to the fact, always excluding those declarations which are liable to the suspicion of bias from interest."

Without discussing the question whether this doctrine applies to written statements of deceased persons, or is confined to verbal declarations (and the latter seems to be the case), it is very clear that the written statements of Harman do not fall within the principle just stated. He was not the surveyor or chain carrier in making the original survey, he was not the owner of this tract nor of an adjoining tract, nor had he any interest in the land which rendered his declarations admissible as proof of any corner or boundary line. It should be remembered that this kind of evidence, which is hear