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The following opinion was delivered by the Chancellor :

By the Chancellor.

[165] The only important question in this case is, whether the deed from Johnson to Suydam conveyed the southwest quarter of township number ten, as the same was actually run and marked upon the land at the time of that conveyance, or only conveyed as it would have been run if Sabin had run the line back from where he made the offset, six miles and a quarter west of this section.

[166] The deed from Johnson to Suydam is for an undivided moiety of the S. W: and S. E. quarters of township No. 10, “ bounded northerly by the N. E. and N. W. quarters of the said township, east by the southwest quarter of No. 11, south by the N. E. and N. W. quarters of township No. 9, and west by the S. E. quarter of township N. 7, being all the right vested in Johnson to those quarters by a deed from J. Greenleaf, dated the first of January then last,” with covenants of warranty and seizin. No reference whatever is made in this deed'to any map, or other descriptive or locative calls, to enable the grantee to ascertain and locate the premises granted, or to determine the length of any of the lines or the number of acres intended to be conveyed. The deed referred to, from Greenleaf, is not given in evidence. But if it had been, and had contained direct reference to a map on file, it could not have altered the legal construction of the deed to Suydam in this respect, as it is not referred to therein as containing a description of the premises intended to be conveyed. It is merely referred to as showing the extent of the right or interest in these two quarter sections conveyed to Johnson by the deed of Greenleaf. What then would be the first legal resort of the grantee, and those claiming under him, to ascertain and locate the premises thus granted ? Certainly it was to ascertain whether the two quarter sections granted were actually run out and marked, or located upon the land at the time of the conveyance, bounded in the manner described in the deed. And certainly there can be no doubt whatever, that if the purchaser had gone to the land at the time he took the conveyance, or before, and such is the legal presumption as to the locative calls in the deed, he would have found every quarter or section adjoining the two conveyed to him actually located upon the land, and those which were described as bounding him on the north, the east and the west, he would have found with their corners distinctly marked upon the Sabin line. It is true, if he had been furnished with a copy of the map returned to the surveyor-general’s office by Yrooman, he would have seen that the line running east and west, upon the north end of his two quarter sections, 'should be a straight line through the whole six townships—a distance of about 35 miles; but he could not, by a mere inspection of the map, know that the line upon which his two sections, and those east, west and north of them were cornered and marked, was not a continuation of the same line which ran through townships 2, 3 and 6 farther west. It would have been necessary for him to travel six miles and a quarter from the lands granted to him, to have found the obliterated corner upon the north line of township No. 6, even if he had had an intimation that there was a mistake in the location of the line and boundaries and corners of the lots conveyed to him. Such a constructive notice of a mistake in the location of the lines of a lot, would be a very unreasonable one to enforce against the settlers upon lands in a new country. Very lew persons would be willing to purchase *91if they were exposed to .lose the best part of their farms, or indeed any part thereof, upon such a rule of construction. I apprehend, then, that the circuit judge entirely mistook the law, when he told the jury that if the Pumpelly line was a continuation of the Sabin line eastward from where the offset was made, it was the same thing as if it had been run or continued by Sabin himself, and must control thé parties in this suit.

[167] There is no doubt that the original proprietors of the Watkins and Flint purchase, for whom Vrooman was employed to subdivide the tract, might have corrected this line before any third person had acquired rights under conveyances from them or the patentee; and so they might also have corrected Vrooman’s own line between the two sections conveyed to Suydam, which it appears by the testimony from Byles’ field-book, was run about fourteen chains too

far west. But after third persons iiad acquired rights under conveyances which, upon their legal construction, had reference to the line as actually run upon the land at the time of such conveyances, it was too late for any one to correct the lines, to their injury, without their consent.

It can make no difference in this case that the erroneous line was run by a sub-surveyor, and that he was directed to correct it. Vrooman, it is true, was the principal agent of the proprietors to subdivide the tract into townships and quarters, at the same time that he run the outer bounds of the whole tract as the agent of the state. But the proprietors could not have expected him to run 300 miles of these division lines, in addition to the out bounds of the tract, without the assistance of sub-surveyors. The agents employed by him for this purpose, therefore, were the agents of the proprietors as to the lines run by them respectively ; and if any of these agents erroneously located the lines and corners of sections and townships on the land, and left them there without correction, innocent bona fide purchasers are not to lose their land which has been conveyed with reference to such lines and corners, upon parol proof forty years afterwards, that such agents were directed to make corrections.

The question here is not, what the grantor or grantee in the deed to Suydam may have understood, independent of the description in the conveyance itself; but what would a person who had read this conveyance and then attempted to locate the land, immediately after the execution thereof, have understood it to mean, as the rights of subsequent purchasers are now concerned. It is not material, therefore, whether .Suydam ever saw the map or not, as it is not referred to in the deed to him. Again: this quarter-, or section, had been actually subdivided into lots bounding upon the Sabin line, before the conveyance to Suydam. And Smith and Denton afterwards conveyed the other undivided half of this section to the plaintiff, or those under whom he claims title, with express reference to the section as thus subdivided to the Sabin line by Byles.

[168] I consider the law so well settled that a conveyance is to be construed in reference to its distinct and visible locative calls as marked or appearing upon the land, in preference to quantity, course, distance, map, or any thing else, that it would be waste of time to refer to the numerous authorities on the subject. In the case of Jackson v. Hunter, (1 Johns. R. 495,) the supreme court of this state, at an early day, attempted to control the actual location of a lot, which had been erroneously located on the land, by the map which was particularly referred to in the patent. But they subsequently found that such a construction of conveyances would inevitably produce confusion of titles and interminable litigation ; and that case was therefore overruled in Jackson v. Cole, (16 Johns, R. 257.) Again, in Jackson v. Freer, (17 id. 29,) the same question was raised, and the correct doctrine on this subject was sustained, which has ever since been followed in this state until the present case.

The question as to acquiescence does not arise here, as the decision of the judge, that if the Pumpelly line was a continuation of he Sabin line from the *92offset, it was the line which must govern the parties, took that question from the jury. Upon the principles established by this court in the recent case of Adams v. Rockwell, (16 Wendell, 285,) however, the plaintiff has not lost his right by any acquiescence in the Pumpelly line. If there was a dispute as to the land lying between the two lines, he did right to direct his agent not to sell it until the question'of right should be finally disposed of, by compromise or otherwise. And a refusal to pay the taxes was no abandonment of his right; as he might have refused to pay them so as to be enabled to bid in the land at the comptroller’s sale, and to put an end to the dispute in that way.

I therefore think the decision of the supreme court in this case was erroneous, and should be reversed.

[169] Senator Dickinson delivered an opinion in favor of an affirmance of the judgment of the supreme court, on the ground that, under the circumstances of the case, the plaintiff should be considered as having acquiesced in Pumpelly’s line. As the opinion consisted principally of a review of the evidence in the case, it is not published.

On the question being put, Shall this judgment he reversed^ the members of the court divided as follows :

Li the affirmative: The President of the Senate, the Chancellor, and Senators Beckwith, Downing, Johnson, Lacy, Loomis, Mack, Maison, Spraker, Tracy, Wager, Willes.—13.

In the negative: Senators Dickinson, Huntington, Lawyer, McLean, Tallmadge, Van Dyck.—6.

Whereupon the judgment of the supreme court was reversed, and &-venire de. novo awarded.

Judgment reversed.

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