Let us examine the agreement. Wells pays Connolly $ 100, in consideration of which the latter allows him " to establish and erect a partition fence between their respective property." What property? Why, the properties respectively owned by them, and to which they had title; that is to say, fifty-vara lots two and three on the one side, and four and five on the other.
It is then provided that this fence is to " commence at a post on the land now occupied by said Connolly, to be set on a line northerly from the last post on the lower part of the fence of the said Wells, on Market street, five feet northward from the southern side of the old division fence now standing, * * * and the fence to run in a direct line to the westward."
Under these circumstances, the appellant Connolly cannot now claim any protection from the agreement, and as he had not had five years' adverse possession when this suit wascommenced (April 12, 1867), we are entitled to recover according to our title.
But we claim we are entitled to recover, notwithstanding the agreement.
This agreement does not purport to convey any interest in the land, and it is evident that it was not intended to do so; it has no words in it which, upon the most latitudinarian construction, can be held to operate as a transfer of the fee, or even of the possession of the land.
It simply provides that Wells may erect a fence, but whether to continue for one year or twenty, does not appear; it does not in any manner convey or agree to convey any of the land north of the proposed fence, to Connolly. Wells pays Connolly for the privilege of moving the fence to the north, and that is all. It was a mode of buying off a trespasser.
OPINION By the Court:
We are of opinion that the written agreement made by Wells and Connolly on the second day of April, 1863, established the line between the parties here.
Judgment and order denying a new trial reversed, and cause remanded for a new trial.