
    William A. Baldwin, Appellant, vs. James M. Winslow, Respondent.
    APPEAL PROM THE JUDGMENT OP THE DISTRICT COURT OP SCOTT COUNTY.
    If the meaning of an instrument by itself is unintelligible and uncertain, extrinsic evidence is admissible to identify its subjects or its objects, or to explain its recitals or promises, so far, and only so far, as this can be done without any contradiction of or departure fi’om the meaning which is given by a fair and rational interpretation of the words actually used.
    If the meaning of the instrument, by itself, is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony; and this intention will be taken as the meaning of the parties (as) expressed in the instrument, if it be a meaning which may be distinctly derived fro m a fair and rational interpretation of the words actually used. But if it be incompatible with such interpretation, the instrument will thon be void for uncertainty or incurable inaccuracy.
    . The complaint set forth a bond for a deed for certain lands in Scott County, alleging performance of conditions precedent on tbe part of tbe Plaintiff, and demanding a conveyance of tbe property, by warranty deed, from the Defendant; also, setting forth certain clerical errors in tbe description of tbe lands included in tbe bond, and demanding a specific performance, according to tbe true intent of tbe parties. Tbe Defendant demurred to tbe complaint, on tbe ground that the bond was void on account of uncertainty.
    The uncertainties complained of appear in full in tbe Opinion of tbe Court.
    [Tbe points and authorities on behalf of Appellant are not on file.]
    Tbe following are tbe points and authorities presented by Counsel for Respondent:
    Where, in tbe terms of a written agreement either executory or executed, there is a plain mistake of facts, and such mistake' is already made out by satisfactory parol proofs, equity will reform tbe contract so as to make it conformable to tbe precise intent of -the parties; and in preliminary contracts for conveyances, &c., tbe Court will act efficiently by reforming tbe preliminary contract itself, and decreeing a due execution of it as reformed. 1 Story’s Eq., Sec. 151, 154, 159, 161, and note; Cowen and Hill’s notes to Phillip's Ev., part 2, pp. 623, 624, and oases therein, cited; Roosevelt vs. Fulton, 2 Cow. R., p. 129; Gillespie vs. Moon, 2 John. Ch. R. p. 585; Keisselbrock vs. Livingston, 4 John. Ch. R. p. 144; Fish vs. Hubbard, 21 Wend. 651; 1 Greenl. Ev., Sec. 300.
    The mistakes alleged by tbe Plaintiffs in this ease all pertain to tbe subject matter of the contraed — they are mere inaccuracies in tbe description of tbe land sold. Tbe real intention of tbe parties in tbis respect, is distinctly averred in the complaint, and tbe Defendant, by demurring, admits those allegations to be true. Tbe Plaintiff has gone into tbe possession of tbe lands under tbe agreement, and full/y performed on bis part.
    It is therefore a clear case for tbe interpretation of a Court of Equity, to reform the contract so as to conform it to tbe precise intention of tbe parties, and to decree its specific performance, as reformed. Vide authorities above cited.
    
    E. J. Whitlock, Counsel for Appellant.
    T. J. Galbbaith and Brisbin & Bigelow, Counsel for Respondent.
   By the Court

E. Emmett, Cb. J.

It is admitted by tbe Demurrer that the Defendant executed a bond to convey to tbe Plaintiff, on certain conditions, tbe one-half of certain lands, which are described in tbe bond, as lot number seven, half of lot eight, and so much of lot ten as lies east of a certain line, all in section 31, of township 114, Scott County. That at tbe time of executing said instrument, tbe Defendant did not own said lot seven, but that be was then tbe owner of lot nine of said section. That it was tbe intention of tbe parties to include in tbe above description lot nine instead of lot seven, and that tbe description “lot V, ” wherever it occurs, is a clerical error, and should read “lot 9, ” instead. It is also admitted that tbe Defendant meant and intended by tbis instrument, to agree to convey tbe wndi/oided half of tbe lands intended to be described. That tbe half of lot eight intended by tbe description is tbe “half” lying next to and adjoining said [lot nine on tbe north, and that tbe portion of lot ten meant and intended by tbe description, lies next to and adjoins said lot nine on the west. The Demurrer further admits a compliance with the terms and conditions of the bond, on the part of the Plaintiffs, in the manner stated in the complaint, and that they have demanded of the Defendant before the commencement of this action, a deed for the undivided half of the lands meant and intended to be described in the1 bond.

The grounds of demurrer are, 1st, That the bond is void for uncertainty; 2nd, That the uncertainty cannot be explained by allegation; 3d, That the Plaintiffs do not so allege performance on their part of conditions precedent as to entitle them to maintain their action; 4th, That the relief claimed is not supported or justified by the facts alleged. As to the third ground, we hold that performance of all the conditions of the bond is sufficiently alleged, by the detailed statement of the time and manner of performance, even if the Plaintiffs have thereby waived the benefit of the general allegation afterwards made, and as to the fourth, we think that the relief asked is consonant with the facts stated in the complaint.

In support of the first two grounds of objection it is contended, that it is impossible to tell what half of the lands was intended to bargain and sell, whether the north, south, east or west half, or the undivided half. That it is equally difficult to determine what half of lot eight is meant by the description»

That the point of beginning and whole description of the line defining the portion of lot ten intended to be conveyed are in* definite and uncertain.

That the reservation of “ two acres on the west side of the creek ” is void for uncertainty, the lines and locality thereof not being defined, and it not appearing that there are two acres in lot ten west of the creek.

And that as there are several townships in Scott County numbered 114, and no range is mentioned in the description, it cannot be determined which is the township intended. Other uncertainties are also urged, but these are all that we consider it necessary to enumerate.

What degree of uncertainty will render instruments like the one under consideration void, or how far an ambiguity may be explained by extrinsic facts, is not always easy to determine. Rules to assist in determining the difficult questions of this class constantly arising, have from time to time been suggested, but all seem to admit of more or less question. Even those laid down by Lord Bacon, and which for a long time were considered infallible, have frequently been found insufficient, and are therefore less regarded in modern times. His rule regarding latent and patent ambiguities, long believed to furnish the decisive test, has proved no exception to the fallibility of all general rules that have been suggested. There are latent ambiguities, as the term is generally understood, that cannot be helped by averment, and on the other hand, there are ambiguities patent which may be explained by extrinsic evidence. We find however the following propositions in Parsons on Contracts, Vol. 2 page 76, which appear applicable to the present case:

“ If the meaning of the instrument by itself is intelligible and certain, extrinsic evidence is admissible to identify its subjects or its objects,’or to explain its recitals or its promises, so far, and only so far, as this can be done without any contradiction of, or departure from, the meaning which is given by a fair and rational interpretation of the words actually used.”

“If the meaning of the instrument by itself, is effected with Uncertainty, the intention of the parties may be ascertained by extrinsic testimony, and this intention will be taken as the meaning of the parties expressed in the instrument, if it be a meaning which may he distinctly derived from a fair and rational interpretation of the words actually used. But if it be incompatible with such interpretation, the instrument will then be void for uncertainty or incurable inacuracy.”

These propositions will apply to the objections made to the bond under consideration, whether the alleged uncertainty is in the meaning of the instrument itself, or in the application of its language to extrinsic facts. It is first objected that it is uncertain which half of the property intended, the Defendant agreed to convey. It is alleged however that the parties intended thereby the wndwided half, and the demurrer admits that such was the intention. Such too we hold to be the legal effect of a conveyance by one to another of “ the half” of any particular piece of property. As it could not be said that the grantee in such a case takes any particular half, he would take an undivided half of each and every part.

Another objection is that it cannot be told from the instrument itself, which half of lot 8 is intended by the description. But the Plaintiffs identify by averring that the half next to and adjoining lot 9 on the north is the half meant, and we do not think that this identification is a contradiction of, or departure from the rational interpretation of the words of the instrument.

It is also urged that there is no definite starting point for the line defining the portion of lot 10 intended to be conveyed. This line is described as commencing “ at the Minnesota river, at the centre of the county road running to Belle Blaine City.” The Minnesota River is a well known object. The county road running thence to Belle Blaine City, is a matter of record, and its point of departure is therefore easily' ascertained. Such being the case, we are unable to see why the centre of this road cannot easily be found at the point where it leaves the river, nor why the line cannot thence be traced throughout, according to the description.

Again it is insisted that the reservation of “ two acres on the west side of the creek,” is void for uncertainty. But we cannot see why the bond may not be good notwithstanding, nor why the Plaintiffs should be deprived of the benefit of their purchase, because the Defendant failed to make a valid reservation.

And it is further argued as an incurable uncertainty, that the bond does not specify the Range in which this Township 114 is situated. It is stated and is no doubt true, that there are several Townships of that particular number, (114) in the county of Scott; but it does noc follow that any but one has ten or more fractional lots in Section 31, and in addition a county road leaving the Minnesota river within its borders, and running thence to Belle Blaine City. And even should it be found that every description that could possibly be gathered from the bond applied epally to several townships or to several distinct pieces of land; still we hold that it is competent to the Plaintiffs to identify the subject, to which the description of the instrument under consideration will apply-There is another view of this case which should not be overlooked. There is a class of cases in which uncertainty of description in instruments of this character*, otherwise incurable, may be helped by election. The Plaintiffs in the present instance after thq execution and delivery of the bond, agree upon ' and determine the location of the outer line of that portion of lot 8 intended to be conveyed. And thereupon the Plaintiffs entered into possession of, .and proceeded to plat, survey and subdivide into lots, the land in controversy, and had such plat lithographed and recorded pursuant to the conditions of the bond and all with the consent of the Defendant. These acts, done with the assistance or by consent of tire Defendant, ought wc think, to estop him from taking advantage of uncertainty which if proved to exist, might otherwise have been deemed incurable.

Sound policy also requires that the contract of parties be carried into effect unless they be incurably defective. And in this particular instance, it would be palpable hardship to permit the Defendant to avoid Ms contract, after having treated it as valid, until the Plaintiffs with Ms countenance and consent, have performed all the conditions by them to be done and performed, upon the identical lands admitted to have been the subject of the contract. "Wethink that the ambiguities of this bond may be explained by extrinsic evidence; that the Plaintiffs having performed all the conditions thereof, are entitled to a specific performance as prayed for in the complaint, and as the Court below rendered judgment in accordance with these views- we must affirm the judgment with costs.  