(after stating the facts). The instructions of the Court to the jury are set out in the case stated on appeal, but as it is stated that no written instructions were asked and no exceptions were taken to thofee given, they are immaterial for the purpose of this appeal.
No courses and distances are mathematically given in the deeds under which either plaintiffs or defendant claim. Both claim under titles derived from Mills Roberts, and this action grows out of a controversy as to where the boundary between the tracts of land claimed by them respectively is. On the trial much evidence was offered, many deeds were read in evidence and many witnesses were examined.
The first exception is to the exclusion of the testimony of Hughes to prove the declaration of Roberts, made at the time of the execution of the deed to Merrimon and Hughes, that “ it did not convey the whole of Long Branch, but that he had reserved to himself one hundred acres of timber for the use of his Long-Lane farm.” The plaintiffs say that this evidence is relevant and competent, not to vary or change the boundary line in the deed, but to show where the true *248boundary is, and that the location of the one hundred acres of timber land, alleged not to have been included in the deed from Roberts to Merrimon and Hughes, is consistent with the boundary as claimed by them, and inconsistent with the boundary as claimed by the defendant.
The defendant says that it is incompetent:
1. Because it is the declaration of a deceased grantor in his own interest.
2. Because it varies the terms of the deed.
3. Because it is excluded by section 590 of The Code.
The plaintiffs say the declaration is competent, and will aid the jury in determining where the boundary line is, and that it is a question for them. They must begin “ on the sound, at a ditch in the Roberts-Benbury line.” The plaintiffs say that this ditch is the ditch, at a point designated by them; the defendant says that it is the ditch, at the point designated by him.
In Sasser v. Herring, 3 Dev., 340, it is said that the “ single declaration of a deceased individual, as to a line or corner,” may be permitted to be proven, and have the weight of common reputation; but the declaration of the owner of the land, however ancient, cannot be used in behalf of those claiming under him, and counsel for the appellees insist that this well established rule will exclude the testimony of Hughes.
The defendant, as well' as the plaintiffs, claims under Roberts, and Hughes, to whom the declaration was made, and through whom the defendant claims, was one of the persons to whom the deed was made, and to whom the declaration of Roberts was made, at the time of executing the deed. It was more than a simple declaration ; it was an act, a fact, pars rei gestm, upon which the parties acted.
Why should not the declaration of Roberts to Hughes, made at the time the deed was executed, indicating what was, and what was not conveyed, be competent? And why *249is not Hughes, who accepted the deed, thereby, according to the declaration that it did not convey the one hundred acres of timber land, a competent witness to prove this fact, not for the purpose of varying or changing a known line, but for the purpose of throwing light upon the matter, and aiding the jury to determine where the controverted and unfixed line really is? - It was the declaration of a deceased grantor in his own interest; it was a declaration made at the time of the execution of the deed to a grantee, against whose interest it was, who accepted and acted upon it, and thereby recognized it as true, and he is one of the persons through whom the defendant claims, and is the witness by whom it is proposed to prove the declaration. It could sub-serve no purpose in the interest of Hughes, the grantee, and being made to, and acted upon by him at the time, it became more than the mere declaration of Roberts, the grantor. It was an accepted fact by both parties, and we cannot see why Hughes, the grantee under whom the plaintiffs derive title, is not a competent witness to prove it. It was against his interest. Halstead v. Mullen, 93 N. C., 252; Mason v. Mc-Cormack, 85 N. C., 226.
The declaration was accepted by Hughes as lessening the area of the tract of land purchased, and was, to that extent, in disparagement of his rights, and is competent as original evidence. 1 Greenl. Ev., sec. 109.
Where the line is uncertain, the acts and admissions of adjoining proprietors are admissible. Davidson v. Arledge, 97 N. C., 172. Where there is no ambiguity in the description given in a deed, nothing short of running and marking a line, contemporaneously with the deed, can have the effect to Vary the boundaries as called for in the deed. Caraway v. Chancy, 6 Jones, 361. But here the very question in dispute grows out of the ambiguity or uncertainty as to where the boundary line is.
*250Evidence to aid a defective description in a deed is not competent. Kitchen v. Wilson, 80 N. C., 191.
The evidence here is not offered to aid a defective description, but to aid the jury in determining where the beginning point and boundaries are. We think, that upon no one of the grounds insisted upon by the defendant, can the testimony of Hughes be excluded, and there was error in sustaining the objection.
As no question is made as to the title of Mills Roberts, we do not see the materiality of the deed from the Clerk and Master in Equity to him; but if the deed executed since the beginning of this action contains matter of description affecting the boundary, not warranted by the decree under which it was made, it would not be accepted as concluding the parties upon the question of boundary; but as there was error in sustaining the defendant’s first objection, we need not consider this. There is error.
Error. Venire de novo.