ERROR to the Circuit Court of the United States for the District of New Hampshire. The facts are stated in the opinion of the court.
The opinion of the court was delivered by: Mr. Justice Bradley delivered the opinion of the court.
Mr. William L. Putnam and Mr. Ossian Ray for the plaintiff in error.
Mr. Josiah G. Abbott, contra.
This is a writ of entry brought by the Bartlett Land and Lumber Company, against Saunders, to recover possession of a certain tract of land in Grafton County, New Hampshire, described as follows:––
'Beginning at the northwest corner of the town of Albany, and thence runing north about 3 degrees east, 3 miles and 65 rods, to a spruce tree marked; and from thence north about 6 degrees east, 4 miles and 95 rods, to a fir tree marked; and from thence south about 87 1/2 degrees east, to the westerly line of Hart's Location, and to the easterly line of Grafton County, as established by the act approved July 3, 1875, entitled 'An Act establishing the east line of Grafton County;' and from thence along the east line of Grafton County to the bound begun at, and containing 8,000 acres of land, more or less.'
The defendant filed a plea, defending his right in, and denying disseisin of, all the land described in the plaintiff's writ which is included in the following-described tract, viz.:––
'Beginning at the northwest corner of the town of Albany, formerly called Burton, and thence running north about three degrees east, three miles and sixty-five rods, to a spruce tree marked; and from thence north about six degrees east, four miles and ninety-five rods, to a fir tree marked; and from thence south about eighty-seven and one-half degrees east, to the westerly line of Hart's Location; thence southerly by the westerly line of Hart's Location to the point in said westerly line nearest to the northwest corner of said Albany; thence in a straight line to the northwest corner of said Albany.'
He disclaimed title to the remainder of the land claimed in the demandant's writ.
Upon these issues the cause came on to be tried, and after the demandant's evidence was adduced, the court instructed the jury that, upon the case made thereby, the demandant was not entitled to recover. A verdict was given for the defendant, and judgment rendered accordingly. The present writ of error is brought to reverse this judgment.
The specific points raised upon the trial, upon which the court was called upon to pass, are presented by a bill of exceptions, which exhibits the evidence in detail. Such parts of this evidence as may be necessary to understand the matters of law raised by the writ of error will be adverted to.
The demandant, on the trial, produced and deraigned title under a quitclaim deed from James Willey, land commissioner of the State of New Hampshire, to Alpheus Bean and others, dated Nov. 26, 1831, made by authority of a resolve of the legislature, which included the lands claimed in the writ.
The demandant also produeed a prior deed, under which the defendant claimed the land described in his plea, being a deed from Abner R. Kelly, treasurer of the State of New Hampshire, to Jasper Elkins and others, dated Aug. 31, 1830, and made by authority of a resolve of the legislature, which deed purported to convey the following-described tract in the county of Grafton, New Hampshire, to wit:––
'Beginning at the northeast corner of the town of Lincoln, and running east seven miles and one hundred and seventeen rods to Hart's Location; thence southerly by the westerly boundary of said location to a point so far south that a line drawn thence due south shall strike the northwest corner of the town of Burton; thence south to said northwest corner of Burton; thence westerly along the northern line of Waterville to the eastern boundary of Hatch and Cheever's grant; thence northerly and westerly by said grant to the east line of Thornton; thence by said line of Thornton northerly to the line of Lincoln, and along this line to the point first mentioned.'
The principal question in the cause was whether the premises thus granted to Elkins and others by the last-named deed embraced the land described in the defendant's plea; if they did, as was held by the judge at the trial, the defendant's was the elder title to the land in dispute, and the title of the ...