OpinioN oi? the Court by
This action was brought by appellant to recover from appellee a small piece of land less than two acres, designated on the plat of Kinkead by 1, 2 & 8.
On the trial in the court below a verdict and judgment were rendered against him, and his motion for a new trial having been overruled, he has appealed to this court. Wm. Martin proves that he had known the land since 1807, that he settled on it as earl}' as 1812, and occupied and claimed it continuously till he sold it to Perry up to Punk’s line, from A to D} on Kinkead’s plat- and sold to that line when he1 sold to Perry, and that he and Williams, appellee’s grantor, once had a dispute about that line, but never settled it, knew nothing about a given corner standing at figure “1.” Other witnesses prove substantially the same facts. But appellee proved by Oreal, a surveyor, that after Martin sold to Perry, and before he made him a deed, he came to him, living in Larue county, and told him, he wanted him to survey the land for him; that the surveyor in Hardin county had been running Punk’s line, and had not agreed, and he wanted him to run it. Because he was a stranger, and as there was a dispute about Punk’s west line, he wanted it surveyed, and settled. That he went, and Martin and Williams, appellee’s vendor, differed as to where the corner of the Perry tract should be, and finally they agreed that he should go to a post oak tree in the line from A to P, which *190botb agreed, was in tbe line between Williams and Martin, and run tbe course of John and Robert Martin’s deed to Williams— N. 60 degrees W. and wherever tbat line crossed tbe line be bad just before rim, from tbe letter O in tbe plat tbat point should be tbe corner. Tbat be ran it in tbe way agreed upon, tbe line thus run crossed the line from tbe letter 0 near a small guru, which be marked as a corner, to which Martin and Williams agreed, be then surveyed tbe Perry tract, and Martin’s deed to Perry was made from bis field notes of tbat survey. And Creal is sustained by tbe deed from Martin to Perry, and from Perry to appellant. Botb deeds call to begin at a stake in Spratt’s field in Funk’s original line, running thence N. 14 degrees E. 180 poles to a gum corner to Daniel Williams. If it be conceded tbat Martin claimed tbe land up to A on tbe plat, and held tbe possession thereof continuously up to tbe time be conveyed to Perry, appellant acquired title to tbe land beyond tbat corner. If Martin bad tbe possession of tbe land prior to tbe date of the survey made by Oreal there is evidence conducing to show that be surrendered tbe possession up to tbe gum corner to Williams, and by bis conveyance to Perry limited him to that corner, and Perry’s deed to appellant calls for tbe same corner. So tbat appellant' bad neither possessory, nor paper title to tbe land claimed in this action. Wherefore tbe judgment must be affirmed.
Read, for appellant.