
    Harper vs. Lindsey.
    Chancery. Construction — ,Specific execution. Agreements will be interpreted and specifically executed, according to the prevailing intent of the parties.
    Vendor AND Vendee. Contract — intent. In a contract for the sale and purchase, at agross sum, of a given number of acres, off the west end of the vendor's tract, to come to a road, thence in the direction of a certain fence, to a specified point the vendee will be entitled to the named quantity of acres, though not included between the west end of the tract, the road and the line, run thence to the point.
    SAME. Same, Vendee of residue. The construction oí the contract will be the same towards a subsequent contractor for the residue of the tract, after the first vendee’s purchase should be surveyed.
    Isaac Lindsey sold to Robert Harper a parcel of land, and gave him a memorandum of the contract, of the following tenor:
    “Received of Robert Harper one thousand dollars in full, for one hundred and twenty-seven and half acres of land, off the west end of my tract, on which I now live, adjoining the said Harper and John P. Wagner. ’Tisalso understood that said Harper comes to the Madisonville road, and from thence with the direction of my cotton patch fence to the mouth of the gut on the river, this 17th October, 1834.”
    Lindsey next sold the residue of the tract to James M. Gray, and the following memorandum of the agreement between them was executed under their hands and seals:
    “Memorandum of an agreement this day made and entered into between James M. Gray and Isaac Lindsey, for a portion of land on Cumberland river, known as Lindsey’s land, part of the tract whereon he did live, — all except the portion sold to Robert Harper. The said Gray is to take all the 
      
      land after Harper’s is surveyed, at eight dollars per acre, and to pay two hundred and fifty dollars next Christmas, and the balance in two equal annual payments thereafter: and the said Gray is to have possession of all the land and privileges thereon. In witness our hands this 28th day of February, 1835.”
    It was found, upon making a survey, that to run to the Madisonville road, and from thence with the direction of the fence to the gut on the river, would not include 127acres of land, but that there would be a deficiency of 25 or 30 acres. Harper insisted upon having his complement of acres “off the west end of the tract,” according to the first clause in the memorandum. On the other hand, Lindsey thought that he was only bound to convey the land included within the boundaries specified in the second clause.
    On the 23d of December, 1835, Lindsey tendered Harper a deed according to his construction, which Harper would not accept. And on the 29th of the same month, be filed his bill in the Chancery Court at Gallatin against Lindsey, to have a specific performance of the contract; and the matter of dispute between them, of course was, as to its true construction.
    On the 22d of July, 1836, they entered into a written agreement of compromise, in which it was conceded by Lindsey that Harper should have the quantity of land claimed by him, and the mode of making the survey was prescribed, and persons were named by whom the survey should be made. — Lindsey failed to comply with this contract, and it was made the subject of a supplemental bill, filed by Harper on the 8th of September, 1836. On the 17th of October, 1836, Gray filed a cross bill to make himself a party to the litigation, in which he considered himself interested under his contract With Lindsey for the purchase of the residue; since, if Harper succeeded in obtaining 127J acres off the west end of the tract, he would include a spring, which was valuable, and formed an object in the purchase of the residue.
    There was much parol testimony taken in the cause, but it Would be impertinent to state it, because the case was decided upon the written contracts themselves without reference to any thing extrinsic.
    
      December 24.
    On the hearing before Chancellor Bramlitt, at April Term, 1838, his Honor decreed that Lindsey should specifically execute the agreement between them by conveying Harper 127-|- acres of land, and he ordered a survey to ascertain the boundaries. And Harper was ordered to' pay the costs of his own depositions. His Honor dismissed the cross bill with costs. From this decree Lindsey and Gray respectively appealed in error.
    White, for Harper,
    said, Is it the true construction of fiarper’s contract that he is not entitled to any land east of the Madisonville road, the cotton patch fence and the mouth' of the gut on the river?
    Suppose the writing had stopped at the end of the first Clause, v^ould there have been any doubt or controversy about it? Harper is to get 127 é acres of land for $1000 off the west end of the tract. That is the important and controlling call, and vvhat was evidently most had in view by the parties. Harper is- authorised to go sufficiently far east to get the quantity ofland, no matter how far it may carry him in that direction. There is no limitation in this clause of the writing.
    Advert now to the latter clause, and see if the former is at all controlled or restrained by it:
    “It is also understood,” &c.: that is, something further, something additional to the main contract, — .that the said Harper comes to the Madisonville road, &c. Under all circumstances he is compelled to come that far, and we see from the’ proof Harper was to pay for the overplus, if any. This is' really a substantive and independent agreement, the price only is left out, but understood by the parties.-
    But, suppose, in coming to the Madisonville road, Harper does not get his 127$ acres, is there any thing to restrain him from going beyond it? Not at all. The first clause id then left to operate in full force. Harper is to have his 127J acres ofland, no matter how far east it may be necessary for him to go. These words are not used to indicate the ultimate eastern boundary. If that had been the object Lindsey would have said he received $1000 for that part of the tract lying west of the boundary, without reference to quantity. — - Lindsey, no doubt, supposed there would be 127$ acres west-of the road,' and more. But still, if he should turn out, in point of fact, to be mistaken, he does not intend to deprive Harper of his full quantity. And, therefore, no language is used to restrain him from going east of the road and fence, if necessary, for that purpose.
    Let us examine this with reference to some principles of acknowledged authority. In the first place, it is a rule with regard to deeds, (and it is giving them greatly the advantage in the argument to compare this loose memorandum with a deed,) that the intention of the parties must be carried into effect, if possible, unless it stands opposed to some established rule of law. Again, in construing an instrument, the whole of it must be taken together; and such a construction must be placed upon it as to give effect to the whole instrument, so that every part of it, and every word, may operate if possible: And again, a deed must be construed most strongly against the grantor, and every exception in the deed, and every uncertainty, are to be taken favorably for the grantee. 3 Hay. 243; 1 John’s Cases, 402; 3 Johns. 395; 16 Johnson, 178-9; 4 Cruise Dig. Tit. 32, c 23; Shep. Touch. 82-3; Cowper 600; 8 Johnson, 406; Coke Litt. 183 a.; 9 East. 15; 3 John. 387.
    With regard to the intention, is it not clear that Harper is to get, at all events, 127J acres of land, no matter how far east it might carry him? And that the second clause, so far from restraining him to any particular boundary, was intended merely to compel him to go to a particular point, even if it should exceed the quantity? This is wholly different from the class of cases arising upon deeds where the boundary is ascertained, calling for natural or artificial objects. Then you must go to- those objects disregarding course, and distance, and quantity. This is an executory contract, and it is palpable it never was intended to be a precise ascertainment of boundary.
    Upon the construction which 1 contend for, every part of the instrument can have its effect. Harper gets his 127-i acres. He comes to these different points. He goes beyond them to be sure, but there is no language used which prevents him from so doing. But, suppose it is uncertain from the' Instrument (and that is the most it can plausibly be contended*’ for,) whether Harper is to go east of these boundaries, their the principle is, that this is to operate in favor of the grantee. Here, in the first place, 127$ acres is to be conveyed, without any limitation of boundary. The second clause, if it operate as argued for, is in the nature of an exception to the general clause; and it must appear then clearly, that the land east of this boundary is excepted, which it does not.
    December 26.
    
    January 4.
    Washington, for Lindsey and Gray,
    said — The only question arising in this case, is, as to the construction of Harper’s contract; for whatever that may be, Gray is certainly entitled to the whole of the residue of the land.
    1. The written contract must speak for itself, and be interpreted by its own terms, without reference to any thing but what is contained upon its face. 1 Johnson’s Ch. Rep. 282;, 14 Johnson, 32-33; 3 StarkieonEv. 995, et seq.
    
    2. The specification of any thing in a contract, is an exclusion of things not specified. 1 Johnson’s Chan. Rep. 183.
    3. The call for natural or artificial objects in a contract, will control the call for quantity.
    4th, The construction of this contract insisted upon by Harper, is most unreasonable; inasmuch as it does not admit of loss on his part, and by possibility, might subject Lindsey to great loss. There is no mutuality in Harper’s construction of the contract.
    5. There has been no practical interpetration of the contract, by the parties themselves, confirming Harper’s opinion of it.
   Turley, J.,

delivered the opinion of the court.

This is a bill for the specific performance of the following written contract: “Received of Robert Harper, one thousand dollars in full, for one hundred and twenty seven and a half acres of land, off the west end of my tract, on which I now live, adjoining the said Harper and Jno. P. Wagner;— it is also understood, that said Harper comes to the Madison-ville road, and from thence with the direction of my cotton patch fence, to the mouth of the gut on the river.”

Now it is contended, that this is a contract to purchase* land by metes and bounds, and that the complainant is entitled to no land, east of the Madisonville road; though he looseá, by this construction of his contract, .thirty or forty acres of the quantity bought and paid for by him. Is this the legal construction of the contract? We think not. This contract is executory, and must receive such a construction as will accord with the intention of the parties at the time it was made. The intention was to sell and buy 127¿ acres of land, to be laid off, on the western end of the tract. This quantity was paid for. The second intent was, to make the Madisonville road and a line running from thence, in the direction of the cotton patch fence to the river, the eastern boundary, it being thought to be a convenient one, and to contain, at least, a sufficient quantity of land, to comply with the contract, perhaps more.

Here then are two intents in a contract, contradictory to •each other, both of which cannot be enforced. If complainant receive the quantity of land purchased by him, the Mad-isonville road, and a line from thence to the river, cannot be made the eastern boundary. If the Madisonville road be made the eastern boundary, then the complainant loses thirty or forty acres of his land, and the consequent amount of his purchase money. Which interest must prevail? Both law and justice say the primary, it was not the intention of the complainant to buy, nor of defendant to sell, the land to be limited by a line from the Madisonville road to the river, unless that should equal 127J acres, the quantity paid for. But the intention was, that the complainant should make the Madisonville road his eastern boundary, although it might include more land than the 127§ acres contracted for. Then, as between Harper and Lindsay, the complainant is entitled to have the lines of his land extended east of the Madisonville road, so as to give to him 127 i acres, the quantity which he intended to purchase.

But it is further contended, for James M. Gray, who has become a party to this suit, by a cross bill, that after the .contract between Harper and Lindsey, he became the purchaser of the remainder of the tract of land from Lindsay, and that Harper’s line cannot be extended east of the Madison; ville road, to his injury.

Note. The rule of interpretation, of which this case is an example, is thus expressed in a late work, Lieber’s Political and Legal Hermeneutics, §xiv 13. The general and superior object cannot be defeated by a less general and inferior direction; and, in general( the higher prevails over the lower, the principal over the specific direction. 18 American Jurist, 80.

The following remarks and authorities relate to the construction of deeds; where the metes and bounds are regarded as the superior object, and the quantity as the inferior and less general direction.

In a conveyance of land by deed, in which the land is certainly bounded, it is-very immaterial whether any, or what quantity, is expressed, for the description by boundaries is conclusive. And when the quantity is mentioned in addition to a description of the boundary, without any covenant, that the land contains that quantity, the whole must be considered as a mere description; for^the. quantity mentioned is an uncertain part of the description, and must yield to the location by certain boundaries, in case of a disagreement, whether the quantity mentioned is more or less than the quantity actually contained within the limits expressed. Per Parsons, C. J., in Powell vs. Clark, 5 Massachusetts R. 355. — And see upon this subject, Sugden on Vendors and Purchasers, c 6,, § 3, Am. Ed,, where numerous American cases are collected upon this litigated point of law. Hoffman vs. Johnson, 1 Bland’s Maryland Chy. R. 180; Pringle vs. Samuel, 1 Littell, 44; Brown vs. Parish, 2 Dana, 9; 8 Wheeler’s American. Common Law Cases, 286, 287.

Gray stands in no more favorable attitude, in relation to Harper’s right, than Lindsey. His purchase was made after Harper’s, his contract is executory, and therefore, as Harper’s contract was first in point of time, he is first in point of right. But, in truth, Gray only purchased the residue of the tract, after Harper’s was surveyed. This, of itself, in-: dependently of the principle above laid down, would give Harper the right, as against him, to have his land laid off, according to the legal construction of his contract, he being only entitled to the residue, after Harper’s claim had been satisfied.

We therefore think there is no error in the proceedings of the chancery court, and affirm the decree.  