
    [In Bank.
    July 25, 1883.]
    THOMAS COX et al., Respondents, v. JOHN HAYES, Appellant.
    Deed—Descbiption Construed. —F. B. and A. 0. Larkin, the owners of a certain quarter section of land, conveyed to one Campbell a small portion of it— twenty-two and twenty-nine hundredths acres—taken from the southeasterly part of the quarter section. They afterwards conveyed to plaintiff’s grantor “the east one hundred acres of the quarter section, commencing on the west bank of the Feather Biver, and running back to the westward far enough so as to contain one hundred acres, and so as to comprise the east one hundred acres of the quarter section, excepting therefrom a small piece of land sold by F. B. and A. 0. Larkin to A. W. Campbell.” Held, that the deed conveyed seventy-seven and seventy-one hundredths acres only.
    Appeal from a judgment of the Superior Court of Butte County.
    The action was ejectment. The other facts are stated in the opinion of the courj;.
    
      I. S. Belcher, for Appellant, cited
    4 Kent’s Com. 468; 2 Wash. on Real Prop. 639; Bouvier’s Law Dictionary; 2 Hilliard on Real Property, 373; Cornwell v. Thurston, 59 Mo. 156; Rockafeller v. Arlington, 91 Ill. 375; Pipe v. Smith, 4 Colo. 444.
    
      
      Reardan & Freer, for Respondents, cited
    Green leaf’s Cruise, 300, 301; Cutler v. Tufts, 3 Pick. 272; Hathaway v. Power, 6 Hill, 453; Vance v. Fore, 24 Cal. 446; Hager v. Spect, 52 Cal. 579; Brannan v. Mesick, 10 Cal, 95; Pio Pico v. Coleman, 47 Cal. 65; Kimball v. Semple, 25 Cal. 441.
   Ross, J.

JF. R. and A. O. Larkin, being the owners of a certain quarter section of land, conveyed to one Campbell a small portion of it taken from the' southeasterly part of the quarter section and containing 22.29 acres. Afterwards the Larkins conveyed to one Hudson and Hudson to the plaintiffs the east one hundred acres (of the quarter section), commencing on the west bank of the Feather River and running back to the westward far enough so as to contain one hundred acres, and so as to comprise the east one hundred acres (of the quarter section), excepting therefrom a small piece of land sold by F. R. and A. O. Larkin to A. W. Campbell.”

If by this deed one hundred acres of the quarter section were conveyed, the judgment should be affirmed. -If, on the other hand, from the one hundred acres mentioned in it, is to be deducted the tract previously conveyed to Campbell, the judgment must be reversed. The language of the deed is awkward, but we think its true construction is that it conveys the east one hundred acres, etc., excepting therefrom the 22.29 acres previously conveyed to Campbell. In other words, that the deed in question conveyed 77.71 acres only.

Judgment reversed and cause remanded for a new trial.

McKixstby, J., Thobntox, J., Mybick, J., and Shabpsteix, J., concurred.

McKee, J., dissented.  