
    
      Stephen Senterfit vs. William Reynolds.
    
    On a question of location, it is inadmissible to prove by the witness who drew the deed, that it was his understanding, from what passed between the grantor and the grantee at the time the deed was drawn, that a certain piece of land was not intended to be conveyed.
    
      Before O’Neall, J. at Lexington, April, extra Term, 1846.
    Trespass to try titles. The plaintiff claimed under a deed from Artemas Watson, who claimed under Barnet Livingston, the grantor. Barnet Livingston first conveyed a part of the land covered by his grant, to his daughter, Naomi Gunter — describing the land intended to be conveyed, very imperfectly — -and afterwards conveyed another part, excepting the piece before conveyed to his daughter, to Artemas Watson. The plaintiff was in the undisturbed possession of a part of the tract, and the defendant, having taken out a junior grant/ trespassed on another part. The questions were, first, was the land on which the defendant had trespassed, covered by the deed to Naomi Gunter*? If not, then 2dly. Was it covered by the deed from Livingston to Watson ? If so, then 3dly. Was it covered by the deed from Watson to the plaintiff? The only legal question made in the case, will sufficiently appear from the ground of appeal, and the decision of the Court of Appeals.
    The jury found for the plaintiff, and the defendant appealed, on the ground, inter alia,
    Because his Honor erred in excluding the parol testimony offered to shew what land the grantors, Barnet Livingston and A.rtemas Watson, understood to be meant by the descriptions contained in their respective deeds.
    
      Boozer and Caldwell, for the motion.
    
      Fair, contra.
   Curia, per

O’Neall, J.

There is no doubt that extrinsic evidence may be received to distinguish the subject of a devise, when, from the words used, there is such a description given as can by parol be rendered certain. But this does not intend that the grantor and grantee shall be allowed to give construction to the words used. If the grantor had been in the habit of calling, as he did, the land, “ the Barney Livingston old place,” and he had so described it in the deed, then, evidence would have been clearly admissible to shew what, and how much, land he had so designated. But his declarations that he intended to convey to such a line, when his deed will not warrant such a construction, are plainly inadmissible, on the ground that parol cannot contradict a written instrument. The defendant has, however, no cause to complain. He was allowed to prove by his witness, Knox, without objection, that the grantor, Watson, told him, when he was about to draw the deed, that he intended to convey “ Barney’s old place that “ it was bounded by the lines of Mrs. Gunter’s landthat he had nothing to do with Mrs. Gunter’s land and that Watson gave boundaries,” (those set down in the deed,) which, in the opinion of the witness, did not cover the land in dispute. It was the answer to the 6th interrogatory which was excluded. It is as follows : “ it was my understanding, from what passed between Watson and Senterfit at the time the deed was drawn, that no part of the land which Barney Livingston had conveyed to his daughter, Mrs. Gunter, was included in the purchase by Senterfit, the plaintiff, of Artemas Watson.” This answer was accompanied by a plat, drawn by the witness, to correspond with his understanding. That this testimony was incompetent, is too plain to need more than to be stated. The location of Barney Livingston’s deed to Naomi Gunter, was one of the questions of fact. The description and proof renders that so uncertain, that the court cannot undertake to disturb the verdict, especially when it does not conclude any right which she may have. The defendant does not claim under her. Whether the deed from Watson to the plaintiff covered the land in dispute, was a question of fact, turning upon conflicting and very doubtful testimony ; there is nothing, therefore, which can be pointed out as error in the verdict in this respect.

The motion is dismissed.

Richardson, Evans, Wardlaw and Frost, JJ. concurred.

Butler, J. absent at the argument.  