
    
      John Altman v. Burwell McBride.
    
    The deed of conveyance -reserved “ one square acre, containingfmy family burial ground,”, without defining the precise spot by lines and boundaries, but before its fixecution, the .parties had agreed upon and marked out the space which was to be considered the graveyard: the Court, held, that the Circuit Judge had coh'ectly charged the jury that they might consider the space thus marked out as the location agreed upon by the parties, although it was found to contain a.,little more than the square acre.
    When the intention of the parties is ascertained, the rule that the deed should be construed most strongly against the grantor, is subservient to that.
    
      Before Withers, J. at Gillisonville, Fall Term, 1849.
    The action was trespass quare clausum fregit: and the act of trespass was charged to have been committed in the plaintiff’s family burial ground — and consisted in girdling or chopping round a walnut tree, so as to destroy it, which the plaintiff insisted was within the limits of the graveyard, aud in moving posts that had been set in the ground as ‘ landmarks.
    On the 22d day of January, 1846, a tract of land was conveyed by the plaintiff, Altman, to one John W. Mixon ; and two days afterwards, the same land was conveyed by John W. Mixon to McBride, the defendant. In each deed of conveyance, a reservation was made of the burial ground in the same language. In that from plaintiff to Mixon, it was as follows : “ one square acre, containing my family graveyard, excepted.”
    The question was, whether the walnut tree, which the defendant had caused his overseer to kill, was within the graveyard reserved ?
    
      At John W. Mixon’s instance, and before Altman executed the conveyance to him, one Phillips marked out the space, which was to be considered the graveyard. He used wooden compasses — such as were usually employed in laying off work. The. space was 5 feet 1 inch. He made each of the four lines, embracing the graveyard, the length of 42 compasses square; and this, as he said, was according to Mixon’s directions, who said Altman would not sign the title till it was measured, and posts set up. He set up posts. Mixon, upon seeing the admeasurement and posts, said he was satisfied if Altman was. A walnut tree, the largest in that vicinity, was, he said, within the lines laid off, and gave a very good shade. Briars, and a clump of shrubbery, covered the graves ; and the distance of the walnut tree in question, from the graves, was variously estimated at from 25 to 40 yards. Phillips said the tree had been left, that funeral sermons might be preached under it, but he had never known one to be preached there ; that the change of position of the posts he set up, threw the graveyard more on a descent, and thereby, in wet' weather, water might be encountered in digging a grave. _
    It was in evidence, from another said, before he sold the land to defendai^wJafo'ftysAtfefifffcLwith the measurement, if Altman was, aillne would giro ffil for the walnut to make lumber, whichfcthe^laÁIjUiifLrp/'jSP.ri.— This witness, as well as Phillips, wSfá*M tnSjPreSLV?oked square, as at first laid off — but a surveyor, who wasfóftein-wards there, said it was not — and s« (ÉmM®^^|[jpw'seer, who removed two of the posts.
    McBride’s overseer, one Dean, said tn^t^í^SííT^fíe was requested by McBride to deaden trees in that part of the plantation embracing the graveyard, even fruit trees; and McBride also wished that Altman’s posts should be set in a workman-like manner, in a square; that he found the line including the walnut, and that parallel to it, made a longer and a shorter side ; that he stepped off 70 paces on one line, and moved the post near the walnut opposite to the point he thus paced, and so excluded the walnut tree; that if he had squared the premises by the tree, he supposed one line would have run through the spot where the graves were; that oats were to be sowed, and defendant desired the particular walnut tree killed, as producing a considerable shade; that no notice was given to plaintiff, when the posts were removed.
    Abram Ruth, a surveyor, was introduced for the defence, and he presented a plat. The yellow lines upon it exhibited the position of the posts as he saw them. Letter “ A.” with the black dotted lines, represent the square acre as he laid it off. “ B.” indicated the position of the walnut tree; (the square acre, as laid off by him, and that laid off by Dean. did not exactly coincide.) The compass 'measurement, by Phillips, would embrace a few square yards more than the 'area of an acre. He said that if one line of a square acre should be made to include the walnut tree, it would force another through the cluster of briars and shrubbery in the graveyard, but not over any grave that he saw. The most easterly post at “ A.” seemed to have been moved some 15 or 20 feet nearer the cluster.
    The surveyor said he made one of the posts, as he found them, a starting point. It was obvious his plan was so to admeasure the square acre, as to have the graves as near the. centre as possible of a circle, that should touch the sides of his square.
    There was abundant evidence that the parties to this action bore ill relations to each other. According to Dean, McBride said there had been hot words between them, and Altman had cursed him near this same graveyard, and said the plaintiff should not come into the graveyard ’till he had run out according to law; though he wanted the old man to have land enough to bury himself and his family, and a square acre would be enough for that. McBride instructed his overseer, (Johnson,) in 1846, not to interfere with the old man’s graveyard ; this remark being an answer to Johnson’s observation, that the posts were not right. But he also said, that he did not think the plaintiff had any right to go inside the field, without his permission.
    It appeared that Altman himself had cultivated land lying between the walnut in question and the graves.
    It seemed that Mixon purchased the land as a mere channel of conveyance from Altman to McBride.
    His Honor adopted the doctrine contended for the defendant, to wit: that no parol understanding between Altman and Mixon could affect the title drawn by defendant; and no title by parol could re-in vest Altman with any part of the land he had conveyed, over and above “ one square acre, containing my family graveyard.” He charged it to be true, as a general principle, that all parol agreements were merged in a subsequent written contract, and that, in this case, one could look only to what was done, and not to what was said, as giving interpretation to the language used — and in that connexion it might be inquired whether, if Altman meant to adopt the work of Phillips as interpreting the deed he after-wards executed, would he not have specifically referred to it. But that the question was, whether the acts of the parties in carrying out the contract (reserving one square acre, containing the family graveyard) did not show, by what had been before done, that the walnut tree was intended to be excluded from the deed : that if the lines located by Phillips were made before the title passed out of Altman, and were known 
      and assented to by John W. Mixon, the phrase of the deed, making the reservation in question, might receive interpretation from such acts, and then the title to the ascertained spot may never have passed out of Altman. He added, that whatever Mixon did not acquire he could not convey to Me-Bride.
    The jury found a verdict for the plaintiff for three hundred and fifty dollars.
    The defendant appealed and moved the Court of Appeals for a new trial, on the following grounds:
    1. Because his Honor charged the jury that they might consider the location established by Phillips, before the completion of the sale by Altman to Mixon, as the location agreed on by the said parties, notwithstanding that location was proved to be for more than a square acre, which is the quantity subsequently reserved in the conveyance from Altman to Mixon.
    2. Because his Honor charged the jury, that a parol agreement, made prior to the execution of a written title, might be relied on to explain the written title, although, it is submitted, that title contains no ambiguity.
    3. Because, whereas the written title offered in evidence by the plaintiff, reserved one square acre of land in the following words, to wit: “ one square acre, containing my family burial ground, excepted his Honor charged the jury that these words might be explained by evidence of a parol agreement, by which Altman and Mixon, previous to the execution of the title, had consented to fix the limits of the burial ground at more than an acre, and in a form different from a square acre.
    4. Because, whatever may have been the parol agreement between Altman and Mixon, it is submitted that none other than the written agreement, as expressed in Altman’s title, could affect the defendant McBride, who was a subsequent purchaser.
    5. Because the finding of the jury is contrary (o law and the evidence.
    
      Colcoclc & Currell, for the motion.
    Singelton, contra.
   Curia, per O’Neall, J.

In this case the only question which deserves consideration is, whether the Judge below was right in telling the jury that they might adopt as the true location of the “square acre, containing the family graveyard,” “that which had been fixed by Altman and Mixon, before the former conveyed to the latter.”

That he was, will require but a few words from me to show. There is nothing in the deed which defines the precise spot by lines and boundaries. No one would doubt that after the deed was executed, the parties might mark it out, an¿ jf p should happen to be a few feet longer or not exactly square, it would not be in the power of either to alter it. If ¿|one before the deed, the same result would seem to follow. Perhaps in this point of view, the case would stand upon stronger grounds. For the rule that a deed or any other instrument, when depending upon extrinsic facts for its construction, should be construed by or according to its subject matter, would properly apply. Here the question is, what square acre is meant? It is to contain the, family graveyard, is the only answer of the deed. Whether that is to be in the centre, or on one side, or at one end, is unascertained by the deed. If the parties fixed the location, by marking the lines and calling it a square acre, we do no violence to the words of the deed or any rule of construction, when we construe the deed to mean this precise square acre, thus marked out and ascertained, as the subject matter of the exception.

It is true, a deed is to be construed generally against the grantor, and, therefore, the exception carried out in his favor, is to receive no larger construction than the words will naturally import. But here the words are susceptible of the construction put upon them, because, by the parties’s measurement, this was a square acre. It is true, by mathematical rule, it afterwards turns out to be not exactly correct. The location made by the parties may be regarded as a square acre, and as thus coming within the words used, and, therefore, within the meaning of the grantor or grantee. When we ascertain thus the intent, the rule that the deed should be construed most strongly against the grantor, is subordinate to that.

The motion is dismissed.

Richardson, Evans and Frost, JJ. concurred.

Motion refused.

Wardlaw, J.

dissenting. It is, I think, now the law, that an exception of one acre, in the grant of a tract, is not void for uncertainty ; but may be available by election ; and that the right of election is in the grantor, as the person required to do the first act.

It may be, then, that by a sufficient exercise of his right of election, the plaintiff here had fixed the boundaries of the excepted acre, so as to embrace the walnut tree. But I cannot agree that the description contained in the exception can be so explained by reference to the acts of the parties, as to mean the parcel which had been marked out by Phillips.

In construing a deed or other writing, we may look to the acts of the parties, and to all surrounding circumstances, to ascertain the meaning of the words that were used, but not to establish an intention which has not been expressed. If the words written have a sensible meaning and some legal effect according to their natural signification, they cannot, byk extrinsic circumstances, be explained to have some other meaning or some different effect.

The description in this exception is not like that contained in a deed which refers to a plat. There the plat is part of the description, and taken together with other parts of the description, comprehends whatever was actually surveyed by the surveyor who made the plat. Often in ascertaining what was surveyed, great departures from the delineation and description are allowed, but all of these departures are justified by adhering to a certainty found in part of a description, in neglect of other parts which are rejected'as useless, and fall at last under the maxim, falsa demonstratio non nocet.

If the exception had been of my family graveyard, then it might have been shown what the family graveyard was, and a ditch around it, stakes marking it out, or other evidence which applied the description to the subject described, might have shown the meaning of the words that were used. On the other hand, one square acre, containing my family graveyard,” shows that the family graveyard is less than an acre, and that the acre must be laid off so as to contain it.—

But whether the graveyard or any particular point therein, shall be in the centre of the square, or on this or that side of it, and in what direction any line of the square shalLrun, are left uncertain. Infinite variety is admissible, subject only to this mathematical certainty, that the acre shall be square.—

This certainty no act of the parties or other evidence can explain away ; any more by making the square an oblong or a trapezium, than by making it a triangle.

What was said by Mixon, as it cannot serve to alter the description in the particular wherein it is exact, can, as a mere indication of intention, be of no avail. If it could be, then an exception by parol, confirmed by the assent of the grantee, would countervail the general words of a grant in writing.  