1. Where there is a variance between a point of distance and a monument as contained in a description of land in a deed, the monument controls.
2. Where a complainant vendee under a contract of sale of lands seeks to rescind and impress a lien on the lands for the down money on the ground that vendor's title rests in adverse possession, the burden of proving such title is on the complainant.
3. After title to lands has become absolute by sixty years' possession, or by thirty years' possession under a conveyance from a person in possession supposed to have a legal title, under sections 28 and 29 ( 3 Comp. Stat. p. 3172), such title cannot be said to rest in "adverse possession" within the meaning of those words as used in a contract of sale specifying that title shall "not be derived from adverse possession."
4. Sections 28 and 29 ( 3 Comp. Stat. p. 3172) are entirely independent of each other, are not conflicting, and neither modifies the other. The rights conferred by both or either are available to suitors.
5. The purpose of the provision in a contract of sale that the title shall "not be derived from adverse possession" is to insure the vendee a good title not subject to successful attack in the courts, and not to afford an excuse for non-performance.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Berry.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 14.
For reversal — None.