Hardin, P. J.:
Upon the trial both parties gave evidence of facts and circum stances relating to the negotiations for and the taking of the deed and the occupation of the premises. Apparently neither side •objected to such evidence being received in aid of the construction to be givenjo the deed in question.
In Atkinson v. Cummins (9 How. [U. S.], 479) it is held, viz.: "In all cases where a difficulty arises in applying the words of a [273]*273will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised.”
In Pritchard v. Hickes (1 Paige, 273) the chancellor says, viz.: “ Where the subject of the devise or legacy is described by reference to some extrinsic fact, extrinsic evidence must be resorted to for the purpose of ascertaining that fact, and thus to ascertain the Bubject of the lestator’s bounty.”
That case was referred to by Judge AlleN with approbation, in delivering his opinion in Mason v. White (11 Barb., 187), where he says, viz.: “Were this a question upon the construction of a devise, or of a deed inter partes, it is possible that evidence of intent might be received to control the application of the description of the subject-matter of the devise or grant.”
In Pettit v. Shepard (32 N. Y., 103) it was held, viz.: “ When the description of land conveyed by deed is vague and uncertain, parol evidence of the intention of the parties as to the real boundaries is admissible. Parol evidence is admissible, not to contradict or vary the deed, but to identify the subject-matter.” Campbell, J., says: “ The evidence was not given to vary or contradict the deed, but to'identify the subject-matter, and to show what the grantor intended by ‘the west half of lot No. 76.’ In this view the evidence was rightly admitted. It tended to show the location and boundaries of the piece of land which the grantor intended to convey, and did convey, by the description, or rather the designation, ‘ the west half of lot No. 76.’ ” lie further added, that after that evidence was received there was a question of fact proper for the jury.
In Green v. Collins (86 N Y., 254), Pettit v. Shepard is referred to approvingly as sanctioning parol evidence to ascertain what the grantor intended by “ general designation of a particular portion ” of land conveyed.
In Barclay v. Howell's Lessee (6 Pet. [U. S.], 499) it was said, viz.: “The right of the court to decide on the legal effect.of written instruments cannot be controverted; but the question of [274]*274boundary is always a matter of fact for tbe determination of tbe jury.”
Judge McLean says in bis opinion: “ It is tbe province of a court to instruct tbe jury tbat they should fix tbe boundaries of tbe tract in controversy by an examination of tbe whole evidence, and tbat artificial or natural boundaries called for, control a call for course and distance. But it would withdraw tbe facts from tbe jury if tbe court were to fix the boundaries called for, and then determine on tbe legal effect of tbe instrument. * * * It is as much tbe province of a jury to determine the limits of a lot in a city or town, as tbe limits of any tract of land, however large or small. And if tbe court on a question of boundary may fix tbe limits of tbe grant, and then say what tbe legal effect of it shall be, there is-nothing left for tbe action of tbe jury.”
In Wendell v. The People (8 Wend., 190) it is said, viz.: “ Where there is nothing in tbe conveyance to control tbe call for course and distance, tbe land must be run according to tbe course and distance given in tbe description of tbe premises. But all grants or conveyances are supposed to be made with reference to an actual view of tbe premises by tbe parties thereto, and it is, therefore, a general rule in tbe construction uf grants, tbat both course and distance must give way to natural or artificial monuments or objects, and courses must be varied and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by tbe grant. (Dogan v. Leekright, 4 Hen. & Munf., 125; Doe v. Thompson, 5 Cow., 371; McIver's Lessee v. Walker, 4 Wheat., 444.) And any visible or defined object, fixed upon by the terms of the grant as tbe boundary or locative call of the premises, such as a marked tree or clearing, tbe corner of a lot or tbe land of another person which is certain and notorious, must be adhered to in tbe location of tbe grant, although it does not correspond with tbe course, distance or quantity, which must all give way to such known boundaries.” This case was approved and followed in White v. Williams (48 N. Y., 344).
In Brookman v. Kruzman(94 N. Y., 276), Ruger, C. J., says; “ Tbe long established rules with reference to tbe construction of descriptions contained in conveyances, require courts to adopt such an interpretation thereof as shall give effect to tbe instrument [275]*275according to tbe intention of the parties, if that is discoverable from legitimate sources of information. (Jackson v. Clark, 7 Johns., 217; Buffalo, W. Y. and Erie R. R. Co. v. Stigeler, 61 N. Y., 348.) In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. (Hathaway v. Power, 6 Hill, 454; Wendell v. People, 8 Wend., 189; Loomis v. Jackson, 19 Johns., 452.) It was said in Robinson v. Kime (70 N. Y., 154) that a conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course or distance, and any particular may be rejected if inconsistent with other parts of » the description and sufficient remains to locate the land intended to be conveyed. The rule that a monument controls other portions of the description in a deed is not inflexible, when the monument is repugnant to another of' like character, or a map gives other results j the truth is to be ascertained from all the facts of the case. (Townsend v. Hayt, 51 N. Y., 656; Higinbotham v. Stoddard, 72 id., 94.) ”
Towards the close of the description in the deed under consideration words were used apparently with the intent to bound the property by surrounding objects. The language is as follows: “ Bounded on the west by the east line of North Main street, on the north by the above mentioned Rose property (so called), on the east by land of Henry Taylor, and on the south by north line of said Lewis street.”
It must be borne in mind that the defendant had conveyed the lot to Taylor, about four months preceding the execution of the conveyance to the plaintiff.
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Hardin, P. J.:
Upon the trial both parties gave evidence of facts and circum stances relating to the negotiations for and the taking of the deed and the occupation of the premises. Apparently neither side •objected to such evidence being received in aid of the construction to be givenjo the deed in question.
In Atkinson v. Cummins (9 How. [U. S.], 479) it is held, viz.: "In all cases where a difficulty arises in applying the words of a [273]*273will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised.”
In Pritchard v. Hickes (1 Paige, 273) the chancellor says, viz.: “ Where the subject of the devise or legacy is described by reference to some extrinsic fact, extrinsic evidence must be resorted to for the purpose of ascertaining that fact, and thus to ascertain the Bubject of the lestator’s bounty.”
That case was referred to by Judge AlleN with approbation, in delivering his opinion in Mason v. White (11 Barb., 187), where he says, viz.: “Were this a question upon the construction of a devise, or of a deed inter partes, it is possible that evidence of intent might be received to control the application of the description of the subject-matter of the devise or grant.”
In Pettit v. Shepard (32 N. Y., 103) it was held, viz.: “ When the description of land conveyed by deed is vague and uncertain, parol evidence of the intention of the parties as to the real boundaries is admissible. Parol evidence is admissible, not to contradict or vary the deed, but to identify the subject-matter.” Campbell, J., says: “ The evidence was not given to vary or contradict the deed, but to'identify the subject-matter, and to show what the grantor intended by ‘the west half of lot No. 76.’ In this view the evidence was rightly admitted. It tended to show the location and boundaries of the piece of land which the grantor intended to convey, and did convey, by the description, or rather the designation, ‘ the west half of lot No. 76.’ ” lie further added, that after that evidence was received there was a question of fact proper for the jury.
In Green v. Collins (86 N Y., 254), Pettit v. Shepard is referred to approvingly as sanctioning parol evidence to ascertain what the grantor intended by “ general designation of a particular portion ” of land conveyed.
In Barclay v. Howell's Lessee (6 Pet. [U. S.], 499) it was said, viz.: “The right of the court to decide on the legal effect.of written instruments cannot be controverted; but the question of [274]*274boundary is always a matter of fact for tbe determination of tbe jury.”
Judge McLean says in bis opinion: “ It is tbe province of a court to instruct tbe jury tbat they should fix tbe boundaries of tbe tract in controversy by an examination of tbe whole evidence, and tbat artificial or natural boundaries called for, control a call for course and distance. But it would withdraw tbe facts from tbe jury if tbe court were to fix the boundaries called for, and then determine on tbe legal effect of tbe instrument. * * * It is as much tbe province of a jury to determine the limits of a lot in a city or town, as tbe limits of any tract of land, however large or small. And if tbe court on a question of boundary may fix tbe limits of tbe grant, and then say what tbe legal effect of it shall be, there is-nothing left for tbe action of tbe jury.”
In Wendell v. The People (8 Wend., 190) it is said, viz.: “ Where there is nothing in tbe conveyance to control tbe call for course and distance, tbe land must be run according to tbe course and distance given in tbe description of tbe premises. But all grants or conveyances are supposed to be made with reference to an actual view of tbe premises by tbe parties thereto, and it is, therefore, a general rule in tbe construction uf grants, tbat both course and distance must give way to natural or artificial monuments or objects, and courses must be varied and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by tbe grant. (Dogan v. Leekright, 4 Hen. & Munf., 125; Doe v. Thompson, 5 Cow., 371; McIver's Lessee v. Walker, 4 Wheat., 444.) And any visible or defined object, fixed upon by the terms of the grant as tbe boundary or locative call of the premises, such as a marked tree or clearing, tbe corner of a lot or tbe land of another person which is certain and notorious, must be adhered to in tbe location of tbe grant, although it does not correspond with tbe course, distance or quantity, which must all give way to such known boundaries.” This case was approved and followed in White v. Williams (48 N. Y., 344).
In Brookman v. Kruzman(94 N. Y., 276), Ruger, C. J., says; “ Tbe long established rules with reference to tbe construction of descriptions contained in conveyances, require courts to adopt such an interpretation thereof as shall give effect to tbe instrument [275]*275according to tbe intention of the parties, if that is discoverable from legitimate sources of information. (Jackson v. Clark, 7 Johns., 217; Buffalo, W. Y. and Erie R. R. Co. v. Stigeler, 61 N. Y., 348.) In giving effect to such intention it is also their duty to reject false or mistaken particulars, provided there be enough of the description remaining to enable the land intended to be conveyed to be located. (Hathaway v. Power, 6 Hill, 454; Wendell v. People, 8 Wend., 189; Loomis v. Jackson, 19 Johns., 452.) It was said in Robinson v. Kime (70 N. Y., 154) that a conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course or distance, and any particular may be rejected if inconsistent with other parts of » the description and sufficient remains to locate the land intended to be conveyed. The rule that a monument controls other portions of the description in a deed is not inflexible, when the monument is repugnant to another of' like character, or a map gives other results j the truth is to be ascertained from all the facts of the case. (Townsend v. Hayt, 51 N. Y., 656; Higinbotham v. Stoddard, 72 id., 94.) ”
Towards the close of the description in the deed under consideration words were used apparently with the intent to bound the property by surrounding objects. The language is as follows: “ Bounded on the west by the east line of North Main street, on the north by the above mentioned Rose property (so called), on the east by land of Henry Taylor, and on the south by north line of said Lewis street.”
It must be borne in mind that the defendant had conveyed the lot to Taylor, about four months preceding the execution of the conveyance to the plaintiff. Taylor had gone into possession of it, was occupying the house situated on the lot, and was cultivating the land, and these facts .were known to the plaintiff and to the defendant at the time of the execution of the deed in question, and it is fair to assume that the parties, in the use of the words “ on the east by land of Henry Taylor,” intended to adopt Taylor’s west line of ownership as the east line of the land to be conveyed to the plaintiff. It is reasonable to interpret the word “ land ” as synonymous with “ lot ” or “ parcel.”
A somewhat similar description was the subject of consideration in Northrop v. Sumney (27 Barb., 196). In that case Judge [276]*276Marvin, speaking for the court, said, viz.: “ The point is made and argued that the description in the deed from Shaw to the defendant included the land to the south fence, and that as the defendant had been ejected from twenty-seven and one-fourth acres of the land, the covenants of his grantor have been broken, and the defendant may recover his damages and may, therefore, now have them abated from the bond and mortgage. This position cannot be sustained. The southern boundary, as described in the deed from Shaw to the defendant, is “ by land heretofore deeded to Clark Hilton.” The north line of the land conveyed to Ililton was susceptible of certain ascertainment, and it was the south line of the land conveyed to the defendant as described in the deed. Distance and quantity must yield to this line, which could be located with certainty: In a case not reported the Court of Appeals held that a line described as parallel with the line of the lot must be so located, though such location would violate the description as to course and distance. * * * By all the well settled general rules of construction relating to descriptions in deeds, the land conveyed extended no further south than to the land previously conveyed to Hilton. The least certain and material parts of the description must yield to those which are most certain and material, if they cannot be reconciled. (4 Kent’s Com., 466.) In this case the lengths o.f the east and west lines and the estimated quantity of land must give way to the certain southern boundary. There has been no breach of any of the covenants in the deed from Shaw to the defendant.”
In Townsend v. Hayt (51 N. Y., 656), it was held, viz.: “ That the rule that a monument controls other portions of the description in a deed is not inflexible, but where, as in this case, there is a map giving a different result and the fixed monument is repugnant to another of a like character, the truth is to be ascertained from all the facts in the case.” By the quotation made from Brookman v. Kurzman, it appears that that case was approved. J udge Huger remarks, viz.: “ When the monument is repugnant to another of like character or a map gives other results, the truth is to be ascertained from all of the facts of the case.”
Andrews, J., in Robinson v. Kime (70 N. Y., 154), says: “ The rule is well settled that a conveyance is to .be construed in reference [277]*277to its visible locative calls, as marked or appearing upon the land, in preference to quantity, course or distance; and any particular may be rejected, if inconsistent witli the other parts of the description, and sufficient remains to locate the land intended to be conveyed. The Johnson boundary ¡mentioned is in the nature of a monument, and it was competent to show where that boundary was, and also to give parol evidence of the location of the stakes existing when the defendant’s deed was given and referred to in the description, although they could not be found at the time of the trial.” We are of the opinion:
First. That upon the parol evidence of the facts and circumstances given in evidence by the parties, coupled with the description in the deed, it was error to hold, as a matter of law, that plaintiff was entitled to recover.
Second. That a fair interpretation of the description used in the deed of the defendant to the plaintiff, in the light of the surrounding circumstances, and the parol evidence that was given, would tend to the conclusion, as a question of fact, that the defendant did not assume to convey and did not intend to convey any portion of the Taylor lot to the plaintiff.
Third. If the defendant had asked to go to the. jury upon the question we are inclined to think that the court ought to have yielded to such request, but no such question is before us for review. (O'Neill v. James, 43 N. Y., 93; Appleby v. The Astor Fire Insurance Company, 54 id., 253; First Nat. Bank v. Dana, 79 id., 108 ; Mott v. Mott, 68 id., 253.)
Inasmuch as the ruling at the circuit held that the defendant, by warranty deed, conveyed to the plaintiff a portion of the Taylor lot, the possession of which had not been delivered to the plaintiff and could not be by the defendant, and that she was liable to damages by reason of the breach of her covenant, in that regard we think an error was committed, and that a new trial should be.ordered.
Judgment reversed and new trial ordered, with costs to abide the event.
JBoaedkaN, J., concurred; Follett, J., not sitting.
Judgment reversed and new trial ordered, with costs to abide the event.