
    *Joseph Calhoun v. John H. Price.
    P. and M- having mutual claims to a survey of laud, executed to each other deeds of partition, as follows: P. conveyed to M. “ 325 acres, more or less,” being the south part of the survey, by deed calling for an unsurveyed boundary line on the north, to be run at a named distance from the south line of the survey. Subsequently, M. conveyed the north part of the survey to P., by deed calling to be bounded on the south by a line, to be run at a named distance from the north line of the designating the line to be run as the northern line of “ a tract of 325 acres of M.,” but calling for a distance which would place the line twenty rods south of that so called for in the deed to M.: jHeld, that the call for distance in the deed to P. must he rejected, and the line so called for in the deed to M. is the true division line.
    Error to the district court of Hardin county.
    • The action below was brought January 17, 1863, by Price v. Calhoun, to recover possession of twenty-nine acres of land, part of a survey, the legal title to which was, before the 28th of December, 1850, vested in one Moncure. On that day an equitable claim, which had been set up by Price to the survey, was adjusted between him and Moncure, and they agreed to make an amicable partition, Moncure taking the southern and Price the northern part.
    The survey calls for 400 rods from east to west, and 406 from north to south; but it is, in fact, 424 rods from east to west, and contains some 1,060 acres — being in the form of a parallelogram.
    The parties executed mutual deeds of release according to the partition agreed upon.
    The deed from Price to Moncure is dated December 28,1850, and describes the land, so released to Moncure, as follows: “ Beginning at the southwest corner of the survey; thence with the west line of said survey north 11, west 120 polos, to a stake in said line; thence north 75, east 402 poles, to a stake in the east line thereof; thence south 11, east 140 poles, to the southeast corner of the survey; thence south 79, west 400 poles, with the south line thereof, to the beginning — containing 325 acres, more or less.”
    The deed from Moncure is dated March 1, 1851, and describes the land released to Price as follows: “Beginning at the northeast corner of said survey; thence to the north Hine thereof west 400 poles, to the northwest corner thereof; thence with the west line south 11, east 306 poles, to a stake in said line, corner to a tract of 325 acres of said Moncure; thence with the north line of said tract north 75, east 402 poles, to a stake in the east line of the survey, the northeast corner of said Moncure’s tract; thence north 11, west 286 poles, to the beginning — containing 725 acres, more or less.”
    The whole controversy is as to the dividing line between the two tracts thus described in the partition deeds.
    It will be seen that the distances called for in the deed to Price— 306 rods on the west line, and 286 on the east — extend 20 rods south of the north line of Moncure’s 325 acres; so that the lines would be made to overlap 20 rods, Including. 50 acres.of land, if we reject the call in the deed to Price for Moncure’s north line, and go by the distances named. The 29 acres in controversy is part of this 50 acres, and the defendant, Calhoun, is in possession thereof, under title derived from Moncurc.
    At the time of executing the deeds, there had been no survey of either tract; no stakes had in fact been sot at the northwest and northeast corners of the 325-acre tract, and the north line thereof ha(l never been run or marked. Soon after the execution of the deeds, however, Price located the northwest corner of the 325 acres, and sot a stake, at the place now claimed to be the true corner by Calhoun, 120 rods north of the southwest corner of the survey,’ and 286 rods south of the northwest corner. The place for this corner Price ascertained by actual measurement of the 120 rods, from the southwest corner. Price also, at the same time, surveyed and marked the line eastward from the stake, in the direction called for in the deeds, N. 75 E., more than half-way across the survey. Until lately, this has always been regarded as the division line by both parties, and those claiming under them, and they have conformed their improvements thereto, and regulated their possession and use of the land accordingly.
    In the common pleas, the case was submitted to the court upon the petition and answer, making the simple question of title, and was decided by the court in favor of Calhoun.
    *The district court, on petition of Price, reversed the judgment of the common pleas; and now Calhoun files his petition here, for the reversal of the judgment of the district court.
    
      W. S. West (with Gatch & Walker), for plaintiff in error:
    1. The intention of the parties will, in general, control the interpretation of deeds. McAferty v. Conover, 7 Ohio St. 104.
    2. The parties intended Price should be bounded by the line and courses of Moncure’s tract. This intention is entirely consistent with the calls for the courses and line in Price’s deed; and therefore “effect will be given to it.” 7 Ohio St. 104. “Where an individual, in his deed, or patent, is bounded by the lands of another, his deed or patent will not be so construed as to include the lands of such other.” Nash v. Atherton, 10 Ohio, 164.
    3. But if Price’s deed would carry its “metes and bounds” beyond the Moncure line, to the end of 360 poles, he is nevertheless estopped from denying that Moncure’s line is his boundary, in view of acquiescence, adverse possession, improvements, and the rights of innocent third parties. 7 Ohio St. 105; Galloway v. Brown, 16 Ohio, 431.
    
      Stanton & Allison, for defendant in error t
    1. All instruments should be construed “ contra projeren tern.; ” except as to the grants of the sovereign the rule is reversed. 2 Parsons on Contr. 19-21; Charles River Bridge v. Warren Bridge, 11 Pet. 589; 1 Bla. Com. 347.
    2. Course and distance can only be made to yield to natural objects, distinctly called for and proved. Where no monument is called for, or, if called for and not proved, then the corner must be made whore course and distance lead. McCoy’s Lessee v. Galloway, 3 Ohio, 282; Galloway v. Brown’s Lessee, 16 Ohio, 428, 430.
    3. Calls in a deed for natural objects, which .had no existence at the time, are mistaken calls, which should be rejected, and not permitted to control course and distance. 16 Ohio, 428, 430; Bates v. Mercer, 4 J. J. Marshall, 334, 361; Wallace v. Maxwell, 1 J. J. Marshall, 447; Hare v. Lessee of Harris, 14 Ohio, 538.
    *4. The call for a corner or a line of another is not conclusive; but, if it appear that the party making the call was mistaken, and the line or corner called for was at a different place than where he supposed it, the call for the other will be rejected. Lessee of Wykoff v. Stevenson, 14 Ohio, 13 ; Hare v. Lessee of Harris, 14 Ohio, 529 ; Bates v. Mercer, 4 J. J. Marshall, 334; Wallace v. Maxwell, 1 J. J. Marshall, 447; Baxter v. Averett’s Lessee, 7 T. B. Monroe, 329; Frost v. Spalding, 19 Pick. 445, 448; Magon v. Latham, 21 Pick. 138; Barclay v. Howell’s Lessee, 6 Peters, 498; Galloway v. Brown, 16 Ohio, 428, 430; Marsh v. Stevenson, 7 Ohio St. 264; Marlow v. Bell’s Lessee, 13 Grat. 527; Shultz v. Young, 3 Ired. 385; Smith v. Harrow, 1 Bibb, 99.
    5. The call in Moncure’s deed to Price, for distance, is definite and certain. No monument or marked lines are found or were ever made to control it. No right or claim of third persons interferes, for the grantor owned the land for 100 poles beyond the call.
    
      J. B. McLaughlin, for defendant in error:
    1. The evidence shows no estoppel in pais.
    
    
      2. The calls of the deeds to Price are repugnant. To fill the call for distance will go 20 polos — 50 acres — beyond the ideal boundary called for.
    The call for boundary should yield to the call for distance, because: 1. No line and no corner, such as called for, had any existence, in fact, and were not monumental, but only imaginary. Moneare being the owner of the whole survey, had no separate tract of 325 acres. The call for distance, being the most certain, should prevail. Galloway v. Brown, 16 Ohio, 428. 2. All ambiguous expressions in a deed must be taken most strongly against the grantor, except in government grants, where the rule is reversed. 1 J. J. Marshall, 447.
   Welch, J.

The case involves but a single question: Which of the disputed lines is established by the deed of Price ? That deed contains two calls for the division line. One of them which is a call for distance — 306 and 286 rods from the *north line of the survey; and, if adhered to, it establishes the southern line, as claimed by Price. The other call is for corners and a line by name —the corners and line of “ 325 acres of Moncure ” — and, if it is to prevail, then the northern line, as claimed by Calhoun, is the true boundary lino. These calls are directly repugnant. One or the other must be rejected. Which shall it be ?

It is said that this is a case for the application of the rule, that the words of a deed-poll must be taken strongest against the grantor. I think not. The deed must be construed in the light of its surroundings. One of these surroundings is the deed made two months before, by Price to Moncuro, for the 325 acres. This latter deed is not only a circumstance to be looked to, with other circumstances, as throwing light on the meaning of the parties to the deed to Price, but it is, in effect, referred to in the latter deed, and made part of it by the call for the corners and north line of the “ 325-acre tract ” described in it. The two deeds must be construed together as an indenture, and not as a deed-poll. They are inseparable, so far as this question is concerned. They are deeds between the same parties, and are, in the strictest sense, deeds in pari materia. We must adopt such a construction of each, as will make the parties consistent with themselves throughout. They had but a single intent as to the location of this dividing line, and that intent must have been the same at the execution of both deeds. They did not intend to fix two lines, or to convey the 50 acres between the disputed lines twice — first from Price to Mon cure, and then back again to Price. This is rendered evident by the call, in the deed to Price, for the corners and lino of Moncure’s 325 acres. They did not, in other words, change their mincls as to the location of the line, between the execution of the two deeds. They made a mistake, but they never discovered the mistake until after the execution of both deeds : and the simple question now is, in which deed was that mistake made ? Or, assuming it to have been a mistake in the deed to Price, as it must have been, was it a mistake in distance, or a mistake in naming Mon cure’s line?

It is to be observed, that there is no repugnancy in the *deed to Moncure. The line in dispute is fixed in that deed with absolute certainty at the distances of 120 and 140 rods, respectively, from the southwest and southeast corners. That is certain which can be made certain; and, therefore, these distances fix the lino with as much certainty as if the deed had called for natural objects upon the line, or for the stakes and marks afterward put upon it by Price.

Indeed, there is not only nothing in the deed repugnant to these calls for distance, but the call for 325 acres is, in effect, a duplicate call for the same line; for that is the precise quantity in Moncure’s tract, if the dimensions are correctly given in the deed. It is true the deed says 325 acres, “ more or less.” The words “ more or less,” however, should be referred to the known inaccuracy of original surveys, and not to any supposed uncertainty in so plain an arithmetical calculation, But be that as it may, there is no repugnancy in the deed to Moncure. It is consistent with itself, and, construed by itself, it undeniably covers the fifty acres of land in dispute. Such being its construction, it is only necessary to say that that construction could not be changed by the subsequent execution of a deed to Price. The only effect of the latter deed, so far as the fifty acres were concerned, would be to reconvoy the land to Price. As I have said, that can not be its effect, for it refers to a line and corners of Moncure, which, though still open, were certain as any demonstration in Euclid, and had been so made certain by the parties themselves. They intended to adopt that line, wherever it might fall. If they had simply said so, and said no more, all would have been consistent throughout. But they said one thing more. They undertook to give the distance of that line from the north line of the survey, and, in that, made a mistake of twenty rods. That mistaken call for twenty rods must be rejected, and all else in both deeds will stand. If we retain that call, and fix the line by it, then we must reject much more — the call for Moncure’s line in the same, and both the calls, for distance and for quantity, in the deed to Moncure; or we must come to the absurd conclusion indicated, that the parties meant to convey the same land twice.

The case in 1 J: J. Marshall (447), relied upon by counsel for ^defendant, differs from the present case in three essential particulars : 1. The repugnancy'in that case was between a call for distance in locating a, particular line, and the general location of the tract itself. Here the repugnancy is between two calls for the same particular line, one locating it by its distance, and the other by its name. 2. The line called for in the case in J. J. Marshall, had not been previously fixed by the parties themselves. Here the line had been so fixed by the deed to Moncure, and is called for eo nomine, as “ the line” of the 325-acre tract. It is called for as a still subsisting line, and in a way which as unmistakably'shows it to have been previously agreed upon and fixed by the former deed, as if the fact had been asserted in so many1,words. 3. In the case in J. J. Marshall, the deed merely calls for a line of the adjacent tract, without giving the ownership of the tract. Here the call is for the line and stakes of “a tract of 325 acres of Moncure.” What does that mean? It means that Moncuro still owns up’ to that line. It means that the Móncuro line, as heretofore fixed, wherever that line may fall, shall be the dividing boundary: It means that the' parties have already fixed that line, and are still satisfied with 'it, and that the land south of it is still the land “of Moncure.” Under the circumstances, it can not reasonably be held to ’mean less.

This is a stronger case for an' interpretation rejecting the call for distance, than the case of Nash v. Atherton, 10 Ohio, 164. There the call was for a corner of land owned 'by a third person, and, as in the present case, no survey had fixed the corner so called for. Subsequently a survey established the corner at a different place than that at which the parties supposed it to' be, and from which they made their measurement at the date of the deed. Yet the court rejected the call for distance, and held the parties bound by the corner as subsequently established.

This decision is not at all in conflict with the case of Galloway v. Brown, 16 Ohio, 428. The syllabus in that case very imperfectly states the opinion of the court. The corner and 'line called for there were subsequently removed, and the *court merely held that the parties were not bound to follow them to their new location.

It should be observed, also, that the contemporaneous acts of the parties corroborate the construction we put upon this deed. Immediately upon the execution of the deeds, and for a long time thereafter, they regarded the line marked by Price as the true line. Whether these acts of recognition of that line are of a nature to estop the parties from denying it to be the true line, as counsel have argued, we need not decide. We hold that it is the line fixed by the deed to Price, upon any fair and legitimate construction of that deed, in the light of the surrounding circumstances.

Judgment of the district court reversed, and judgment of the common pleas affirmed.

Day, C. J., and White, Brinkerhoef, and Scott, JJ., concurred.  