Metcalf v. Buck , 36 Pa. Super. 58 ( 1908 )

Opinion by

Henderson, J.,

The plaintiff’s case depends upon the true location of the block of lots plotted by T. A. Miller, a surveyor for Dr. Dieffenderfer, who owned the whole tract. He received a deed from Diéffenderfer October 14, 1889, for a lot having a width of fifty feet and a depth of about 166 feet, referred to in the deed as “lot No. 5, on plot or map made by Thomas A. Miller for the-grantor hereof.” A map proved by a witness to have been made by Thomas A. Miller, showing a division of the land into lots, was offered in evidence and according to it the plaintiff’s lot had a course for its north line of south 76° east, and for its south line a course north 76° west. The lot as thus described was shown to cover that portion of the lot occupied by the defendant described in the writ. The plaintiff was, therefore, called upon to establish the identity of the Miller map which he undertook to do by the testimony of witnesses. There was evidence that Miller had made two plots of this land and the one offered in evidence by the plaintiff appears by the indorsement of Miller made thereon to be an “amended 'plot of a survey” of the lots. It further appears that this plot does not accurately fit the whole piece, there being a call for a triangular piece at the south end having a frontage of fifty feet on the lake which is larger than the actual size by about twenty-three feet. The defendant received a deed from Dieffenderfer dated April 17, 1889, for two lots described as Nos. 3 and 4 oii the plot or map made by Thomas A. Miller for the •grantor. The south line of this grant is described as a line extending from the northeast corner of lot No. 2 on the plot or map made by Thomas A. Miller in a westerly direction along the north line of lot No. 2 to Lake street. The northern line is described as extending “in an easterly direction along the ■north line of lot No. 4,166 feet to a corner at low water mark on Lake Carey.” This title, as will be observed, is older than the plaintiff’s and the evidence shows that the defendant acquired title before the lots south of her. were conveyed. There was not only the evidence that there had been two plots made of the land for Dr. Dieffenderfer, but there was the direct testimony of L. E. Stearns, a. witness for the defendant,- that he was acquainted with the map used by the grantor in plot-, ting the land,: that he was present with Dr. .Dieffenderfer pn, the. ground when the lines of the lots were pointed out to. him by'Dieffenderfer and that he-knew the-lines, as claimed by the-defendant, were perfectly correct. Under the evidence in the. case the court very properly submitted to the jury the question, whether the plot exhibited by the .plaintiff was the plot, referred, to in the deed to the defendant. As the. defendant was prior in title she could only be affected by the plot on which the plaintiff relied when it was shown that that was the one by which her land was described.' According to the evidence. .of surveyors the plaintiff’s plot .was inaccurate as to the triangular portion of land and that may have created doubt as to the correctness of, the other parts of it. The defendant’s contention was that, she bought according to monuments on the ground established by the grantor, and pointed out by him to witnesses as the boundaries of the respective lots. As shown' by this evidence the grantor went onto the ground and caused oak stakes to be set indicating the corners and the side, lines-of the. lots sold to the defendant and to the adjoining owners, in accordance, as he claimed, with the Miller survey under which he was acting and these are the lines to which the respective owners have been holding. The plaintiff, the defendant. and other lot owners erected cottages in accordance with the.- location of lines as claimed by the defendant. The effect of a location as-claimed by the plaintiff would be to leave a part of the plaintiff’s cottage on the adjoining lot, to. cut the defendant’s cottage in two and to take from the owner of the lot on the north a part of his cottage. Fences were erected by the owners in accordance with the lines claimed by the defendant, the' plaintiff being one of them. There is abundant evidence of the existence of the stake lines along which the fences were located and that the stakes were placed by the grantor' to indicate the lot lines shown by the Miller survey -as he understood it. .That it was competent for the defendant to prove the acts of the grantor designating the location of the lots, which she. bought is sustained by many cases. If the. evidence of the defendant is credited the monuments were on the ground, established by the grantor, clearly showing the divisions made by him and according to which he was selling. These monuments control where there is a discrepancy between them and the courses and distances called for in the deed: Blasdell v. Bissell, 6 Pa. 258; Lodge v. Barnett, 46 Pa. 477; Morse v. Rollins, 121 Pa. 537; Rook v. Greenewald, 22 Pa. Superior Ct. 641. The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence when the marks or monuments are gone: Marcy v. Brock, 207 Pa. 95. The evidence of L. E. Stearns and his wife definitely locates the defendant’s lots by a fence along the line pointed out by Dr. Dieffenderfer, and this evidence, if credited, goes a long way to sustain the defendant’s position.

The objection to the competency of L. E. Stearns and his wife as witnesses is not well taken. They had no legal interest in the result of the suit. The interest which disqualifies is a vested interest in the event of a suit, but not in the question' involved. It must be such an interest as the judgment in the case would operate upon. The witnesses referred to neither acquire nor lose a right nor incur any responsibility as a result of this action. Their interest in the question might affect their credibility, but not their capacity: Dickson v. McGraw Bros., 151 Pa. 98; Bank v. Henning, 171 Pa. 399. We do not find any reversible errors in the admission of evidence, in the answers to the points or in the 'charge of the court.

The judgment is affirmed.