By the Court, Rhodes, J.
This action was brought to recover a tract of land which, it is claimed, formed a part of the Jimeno Rancho. The defendants claim that the premises in controversy are included within [446]*446the Coins Rancho, and the defendant Semple also claims under the -Time-no title. The consideration of the case will first require the solution of a number of questions arising upon the construction of certain deeds of conveyance.
The Jimeno Rancho was granted to Manuel Jimeno in 1844, and consisted of eleven Spanish leagues of land, (the diseño containing a much larger tract,) and is bounded on the east by the Sacramento River. The Colus Rancho was granted to John Bidwell in 1845, and is a grant of two Spanish leagues within a larger area, the whole tract being bounded by the Sacramento River on the east, and the larger portion of it being included within the Jimeno Rancho. Larkin and Missroon purchased from Jimeno.
The defendants offered in evidence a power of attorney executed by Missroon to Larkin, authorizing him to sell lands, etc., which was acknowledged before a Master in Chancery, in the State of New Jersey, who certified, among other things, that he was “ satisfied” that Missroon and wife were the grantors named in the deed, but not that they were known or proved to him to be such. No proof was offered of the execution of the power, except what was afforded by the certificate of acknowledgment.
The plaintiff objected to its introduction as evidence, on the ground that it was neither proven nor properly acknowledged. A Master in Chancery is not one of the officers authorized by law to take the acknowledgment of deeds, out of this State, and within any other State; and the certificate, by whomsoever made, must state that the maker of the instrument was known to him, or proven to him to be the person who executed the instrument. If he is “ satisfied,” he must state how, whether by personal knowledge, or by the sworn testimony of a credible witness, whose name is inserted in the certificate. The power of attorney should not have been admitted without proof of its execution.
On the 23d of September, 1851, Larkin and Missroon, by Larkin (who professed to act by virtue of the power of attorney just mentioned,) executed to Seawell and Hastings a deed [447]*447of conveyance, purporting to quitclaim to them the undivided two thirds of two Spanish leagues of land, “ formerly known as the Coins tract,” including the Town of Colusa, being a part of the eleven Spanish leagues “ granted to Jirneno.” “ Said two leagues of land is supposed to have been granted by Don Pio Pico, formerly Governor of Alta California, to John Bid-well.” And at the same time, Seawell and Hastings quit-claimed to Larkin and Missroon the undivided third óf the same land. The evident intent of the parties was to make Seawell, Hastings, Larkin and Missroon tenants in common of the two leagues, so that Seawell and Hastings should hold each one third, and Larkin and Missroon the remaining third. The deed of Larkin and Missroon was inoperative as to Missroon’s interest, in the absence of proof of power in Larkin to convey; but it will be unnecessary to inquire what interest—whether the one third or one half—passed by the deed of Larkin to Seawell and Hastings ; for in March, 1856, Seawell and Hastings re-conveyed to Larkin all the right, title and interest they acquired by the deed of the 23d of September, 1851, except in certain town lots in the Town of Colusa, before that time sold and conveyed by Seawell and Hastings. On the 2d of February, 1853, Missroon executed a deed which was recorded November 24, 1853, by which he conveyed to Larkin all Missroon’s “ right, title and interest in the upper or northern two leagues of a rancho or grant of eleven leagues of land granted to Manuel Jirneno ■ * * *, which two leagues join the rancho or grant of land on said Sacramento River called rancho of Larkin’s children.” The description of the premises in the deed last mentioned, does not include any of the Coins tract, when surveyed so as to include the Town of Colusa, except a strip of land of the width of five eighths of a mile, and extending from the Sacramento River to the west, about one league in length. In March, 1856, at the same time that Seawell and Hastings executed their deed to Larkin, he executed to them a deed of the undivided two thirds of the northern or upper two leagues of the Jirneno Rancho—one of the objects of the parties to the conveyances being to correct a misunder[448]*448standing between them as to the true location of the lands described in their deeds of 1851.
On the 22d of April, 1852, Missroon conveyed to Coghill all his right, title, and interest in the one undivided half of,nine Spanish leagues of land, “ commencing two Spanish leagues below or southerly from the tract of land on said river known as the rancho of Larkin’s children; thence running with said river southerly nine Spanish leagues, and one Spanish league back or westjvardly from said river, being part of a tract on said river known as the Jimeno grant,” excepting therefrom one thousand two hundred acres conveyed to Belden; and on the 23d of July, 1852, Larkin conveyed to Whitcomb all his estate, right, title, etc., in and to an undivided half of nine Sjoanish leagues of land, “ commencing at a point on the said river, two Spanish leagues in length along the said river, below a point on the same made by the intersection with the river of the lower or southerly boundary line of a tract of land on said river known as the rancho of Larkin’s children; thence running southerly (its eastern boundary for the whole length being the said river) nine Spanish leagues, more or less,” to the southern boundary of the Jimeno grant, and back from the river one league, more or less, the whole length of the tract conveyed. The one thousand two hundred acres conveyed to Belden was excepted. The grantor recites in his deed that he means and intends to convey all his right, etc., in and to the Jimeno grant, “ with the exception of a tract of two Spanish leagues in length along and with said river on the upper or northerly part of said Jimeno grant,” and with the exception of the Belden tract. The title that passed by the last two deeds to Coghill and Whitcomb subsequently vested in the plaintiff.
In July, 1856, Seawell and Todd conveyed to defendant Semple, all their interest, “ supposed to be two fifths of two thirds, in and to two leagues of land known as the Colus tract;” also whatever interest they had in the Jimeno tract. It does not appear that Todd had any interest, and the deed simply passed Seawell’s undivided third in the upper two leagues [449]*449conveyed to him by Larkin. In 1861, Hastings and Lincoln conveyed to Semple a tract, described by metes and bounds, including a portion of the Jimeno and the Colus Ranchos, as surveyed, and in the same month Hastings conveyed to Semple all his interest in the Colus Rancho. The record does not show that Lincoln had any interest other than that derived from the deed of Larkin’s executors to him. That deed will be hereafter considered, but it will be sufficient now to say' that the deed, as offered in evidence, did not pass Larkin’s title.
The parties present the question, -whether the place of beginning in the deed from Larkin to Whitcomb, is to be ascertained by measuring two leagues in length from the southern boundary of Larkin’s children’s rancho, in a straight line, or following the meanderings of the river.
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By the Court, Rhodes, J.
This action was brought to recover a tract of land which, it is claimed, formed a part of the Jimeno Rancho. The defendants claim that the premises in controversy are included within [446]*446the Coins Rancho, and the defendant Semple also claims under the -Time-no title. The consideration of the case will first require the solution of a number of questions arising upon the construction of certain deeds of conveyance.
The Jimeno Rancho was granted to Manuel Jimeno in 1844, and consisted of eleven Spanish leagues of land, (the diseño containing a much larger tract,) and is bounded on the east by the Sacramento River. The Colus Rancho was granted to John Bidwell in 1845, and is a grant of two Spanish leagues within a larger area, the whole tract being bounded by the Sacramento River on the east, and the larger portion of it being included within the Jimeno Rancho. Larkin and Missroon purchased from Jimeno.
The defendants offered in evidence a power of attorney executed by Missroon to Larkin, authorizing him to sell lands, etc., which was acknowledged before a Master in Chancery, in the State of New Jersey, who certified, among other things, that he was “ satisfied” that Missroon and wife were the grantors named in the deed, but not that they were known or proved to him to be such. No proof was offered of the execution of the power, except what was afforded by the certificate of acknowledgment.
The plaintiff objected to its introduction as evidence, on the ground that it was neither proven nor properly acknowledged. A Master in Chancery is not one of the officers authorized by law to take the acknowledgment of deeds, out of this State, and within any other State; and the certificate, by whomsoever made, must state that the maker of the instrument was known to him, or proven to him to be the person who executed the instrument. If he is “ satisfied,” he must state how, whether by personal knowledge, or by the sworn testimony of a credible witness, whose name is inserted in the certificate. The power of attorney should not have been admitted without proof of its execution.
On the 23d of September, 1851, Larkin and Missroon, by Larkin (who professed to act by virtue of the power of attorney just mentioned,) executed to Seawell and Hastings a deed [447]*447of conveyance, purporting to quitclaim to them the undivided two thirds of two Spanish leagues of land, “ formerly known as the Coins tract,” including the Town of Colusa, being a part of the eleven Spanish leagues “ granted to Jirneno.” “ Said two leagues of land is supposed to have been granted by Don Pio Pico, formerly Governor of Alta California, to John Bid-well.” And at the same time, Seawell and Hastings quit-claimed to Larkin and Missroon the undivided third óf the same land. The evident intent of the parties was to make Seawell, Hastings, Larkin and Missroon tenants in common of the two leagues, so that Seawell and Hastings should hold each one third, and Larkin and Missroon the remaining third. The deed of Larkin and Missroon was inoperative as to Missroon’s interest, in the absence of proof of power in Larkin to convey; but it will be unnecessary to inquire what interest—whether the one third or one half—passed by the deed of Larkin to Seawell and Hastings ; for in March, 1856, Seawell and Hastings re-conveyed to Larkin all the right, title and interest they acquired by the deed of the 23d of September, 1851, except in certain town lots in the Town of Colusa, before that time sold and conveyed by Seawell and Hastings. On the 2d of February, 1853, Missroon executed a deed which was recorded November 24, 1853, by which he conveyed to Larkin all Missroon’s “ right, title and interest in the upper or northern two leagues of a rancho or grant of eleven leagues of land granted to Manuel Jirneno ■ * * *, which two leagues join the rancho or grant of land on said Sacramento River called rancho of Larkin’s children.” The description of the premises in the deed last mentioned, does not include any of the Coins tract, when surveyed so as to include the Town of Colusa, except a strip of land of the width of five eighths of a mile, and extending from the Sacramento River to the west, about one league in length. In March, 1856, at the same time that Seawell and Hastings executed their deed to Larkin, he executed to them a deed of the undivided two thirds of the northern or upper two leagues of the Jirneno Rancho—one of the objects of the parties to the conveyances being to correct a misunder[448]*448standing between them as to the true location of the lands described in their deeds of 1851.
On the 22d of April, 1852, Missroon conveyed to Coghill all his right, title, and interest in the one undivided half of,nine Spanish leagues of land, “ commencing two Spanish leagues below or southerly from the tract of land on said river known as the rancho of Larkin’s children; thence running with said river southerly nine Spanish leagues, and one Spanish league back or westjvardly from said river, being part of a tract on said river known as the Jimeno grant,” excepting therefrom one thousand two hundred acres conveyed to Belden; and on the 23d of July, 1852, Larkin conveyed to Whitcomb all his estate, right, title, etc., in and to an undivided half of nine Sjoanish leagues of land, “ commencing at a point on the said river, two Spanish leagues in length along the said river, below a point on the same made by the intersection with the river of the lower or southerly boundary line of a tract of land on said river known as the rancho of Larkin’s children; thence running southerly (its eastern boundary for the whole length being the said river) nine Spanish leagues, more or less,” to the southern boundary of the Jimeno grant, and back from the river one league, more or less, the whole length of the tract conveyed. The one thousand two hundred acres conveyed to Belden was excepted. The grantor recites in his deed that he means and intends to convey all his right, etc., in and to the Jimeno grant, “ with the exception of a tract of two Spanish leagues in length along and with said river on the upper or northerly part of said Jimeno grant,” and with the exception of the Belden tract. The title that passed by the last two deeds to Coghill and Whitcomb subsequently vested in the plaintiff.
In July, 1856, Seawell and Todd conveyed to defendant Semple, all their interest, “ supposed to be two fifths of two thirds, in and to two leagues of land known as the Colus tract;” also whatever interest they had in the Jimeno tract. It does not appear that Todd had any interest, and the deed simply passed Seawell’s undivided third in the upper two leagues [449]*449conveyed to him by Larkin. In 1861, Hastings and Lincoln conveyed to Semple a tract, described by metes and bounds, including a portion of the Jimeno and the Colus Ranchos, as surveyed, and in the same month Hastings conveyed to Semple all his interest in the Colus Rancho. The record does not show that Lincoln had any interest other than that derived from the deed of Larkin’s executors to him. That deed will be hereafter considered, but it will be sufficient now to say' that the deed, as offered in evidence, did not pass Larkin’s title.
The parties present the question, -whether the place of beginning in the deed from Larkin to Whitcomb, is to be ascertained by measuring two leagues in length from the southern boundary of Larkin’s children’s rancho, in a straight line, or following the meanderings of the river. If measured in a straight line, the excepted portion will be five eighths of a mile longer than if measured by the meandering line. The plaintiff insists upon the meandering line, and the defendants upon the straight line. It is the duty of the Court to give the deed the same construction that the parties gave it, at the time of its execution. The Court will place itself, as nearly as possible, in the position of the contracting parties, and their intent will be ascertained in the same manner as in the case of any other contract. If, when the Court has placed itself in that position, the intent of the parties is not apparent from the deed, it is to be sought by a resort to the rules of construction which give greater effect "to those things about which the law presumes- the parties are the least liable to mistake. But arbitrary rules of construction are not to be invoked, if the intention of the parties can be plainly discovered without their aid. At the date of the deed to Whitcomb, the southern line of the rancho of Larkin’s children does not appear to have been established, nor was the northern line of the Jimeno Rancho ; but the parties in this case assume in argument that the two lines coincided. Neither the Jimeno nor the Colus Rancho had then been surveyed. The Jimeno Rancho seems to have been considered by the parties as a [450]*450grant of eleven leagues of land in length, with the average width of one league, bounded by the Sacramento River. The parties did not indicate an accurate measurement of the lines or of the land in any respect, but they simply provided for the conveyance of the undivided half of the lower nine leagues, or of all the rancho except the northern two leagues in length. From the point of beginning, the eastern line extended down and followed the river nine leagues, more or less, to the southern boundary and the tract extended to the west one league, more or less. The river is the only locative call in the conveyance, but the southern boundary, according to the testimony of Green, the surveyor, was a well known slough, called Sycamore Slough, designated on the diseño and on the plat attached to the patent of the Jimeno Rancho.
We can see nothing in the deed requiring a strict rule to be applied to the survey of the two leagues that does not as imperatively require the same rule in the survey of the nine leagues. The parties evidently did not contemplate a strict measurement, for after describing the premises conveyed they returned, as if for the purpose of a better description of the land to be conveyed, and say that the premises include all the Jimeno Rancho except a tract of two leagues in length along and with the river, on the upper part of the rancho. The excepted tract could not be two leagues in length, if the meanders of the river were required to be measured to find the length of the tract. Uor, on the other hand, would the tract conveyed, include the half of all the rancho besides the excepted portion, if surveyed as the plaintiff requires the upper two leagues to be measured, for the rancho exceeds eleven leagues in length. The situation of the land, the fact that it had not been surveyed, the absence of -abuttals except on one side, the uncertain location of an adjoining rancho, the low price of the land, the loose description of the land conveyed and the land excepted, and all the surrounding circumstances, seem to indicate that the parties did not contemplate an accurate measurement of the lines, or a measurement by the meanders of the river. The rule contended for by the plaintiff has [451]*451been more frequently enforced in Kentucky, than any other State, and there were peculiar reasons for its application in that State, that do not exist in this, and its application was mostly in cases where persons had made locations of warrants in their own behalf, and had estimated distances by the usual routes of travel. In Littlepage v. Fowler, 11 Wheat. 215, the Supreme Court of the United States, while willing to give effect in Kentucky to the authorities of that State, said, in a case where one party contended for the measurement by the meanders of the river and the other for a straight line: “ We have examined these cases (the Kentucky cases), and are satisfied that neither party is supported in his doctrine as a universal principle, but that the Courts of Kentucky, with that good sense which uniformly distinguishes them efforts to extricate themselves from the chaos of rights in which political relations and inveterate practice had involved them, have left each case to be governed by its own merits, whenever distance has been resorted to as the means of identifying a locative call; and certainly the sense in which the enterer uses the reference to distance is the only general rule that can govern a Court in construing an entry. That sense may be gathered from the language, or inferred from the habits of men and the state of the country; but as he is responsible for the sufficiency of his entry, it would be unfair to impose an arbitrary and unusual meaning upon the language of unlettered men exploring a country covered with thickets and replete with dangers.”
It. is apparent that the deed, when viewed by the light of surrounding circumstances, was intended as a conveyance of the undivided half of all the rancho except the upper or northern portion thereof, which was two leagues in length; and this construction leaves the strip of land five eighths of a mile in width, to the north of the plaintiff’s northern line.
A further point is raised in respect to the deed of Larkin to Whitcomb, the defendants contending that at its date Larkin did not hold any title in the Jimeno Rancho south of the upper two leagues, and within the Colus Rancho ; that Larkin, by his deed of 1851 to Seawell and Hastings, conveyed to them his [452]*452interest in the Coins Rancho ; and the plaintiff asserting that the title acquired by Larkin, through the deed of Seawell and Hastings to him in 1856, vested in Whitcomb, by virtue of the warranty in Larkin’s deed to Whitcomb. Larkin, by his deed, covenants with Whitcomb that he will warrant and defend the premises conveyed from and against all or any incumbrances, claims or demands created, made or suffered by, through or under him, and against none other.
At that time, he had parted with his interest in that portion of the land, which was included within the Colus Rancho. The deed to Whitcomb was simply a conveyance of whatever interest Larkin then held in the land mentioned in the deed, but it did not purport to convey the land, nor any certain interest therein, nor any interest he might thereafter acquire. The warranty in the deed attached itself to the interest conveyed, and not to the land itself, the grantor warranting the title conveyed by him against any incumbrance, claim or demand made or suffered under or through him.
The deed itself would not estop Larkin from setting up an after acquired title, nor will a warranty of the character of the one before us, when annexed to a conveyance merely of the grantor’s present interest, cause the after acquired interest of the grantor to “ feed the estoppel,” and inure to the benefit of his grantee. In Gee v. Moore, 14 Cal. 472, a deed of the character of the one before us, and containing a covenant similar to the one in this case, was considered, and the Court held that the warranty was confined to the estate conveyed; and Mr. Chief Justice Field, in speaking of the deed, said: “ It purports to pass all the right, title and estate which the grantor possessed in the land, but does not operate upon interests subsequently acquired.” (Blanchard v. Brooks, 12 Pick. 47; Comstock v. Smith, 13 Pick. 116 ; Miller v. Ewing, 6 Cush. 34; Duchess of Kingston's Case, 2 Smith’s Leading Cases, and Notes.)
It results from the construction we have given to the several conveyances, that the title to no part of the northern two leagues of the Jimeno Rancho passed to plaintiff through those [453]*453conveyances; that the deeds to Semple conveyed to him no interest in the southern nine leagues of the rancho ; and that the interest in that portion of the rancho lying south of the northern two leagues, which was conveyed by Seawell and Hastings to Larkin—and we do not undertake to ascertain what that interest was—remained in Larkin, so far as the record shows, at the commencement of this action.
The matters of greatest importance involved in this case, and which, perhaps, more than any other, it was desired by the parties should be decided on this appeal, are the questions arising out of the conflict between the boundaries of the two ranchos. Since the trial of this cause in the Court below, it is understood that the Supreme Court of the United States, in the case of The United States v. Sepulveda, and in other cases, have more fully and accurately defined the jurisdiction of the District Courts of the United States respecting the surveys of private land claims in this State; and if they have not modified their previous opinions, they have prescribed narrower limits to the power of the District Courts, under the Act of Congress of the 14th of June, 1860, than the bar of the State seem to have understood were fixed by that Act. This case was not presented in view of the law as declared by the more recent decisions of that Court. But be that as it may, the record is not in such form that we can properly pass upon the questions of conflict of boundaries, and settle the rights of the parties depending upon the priority of the segregation of the respective ranchos from the public lands. The plaintiff presented an approved survey and a patent of the Jimeno Rancho, and on the plat the lines of a tract of land, marked “ Colus Rancho,” are delineated. The defendants introduced a plat and the field notes of a survey of the Colus Rancho, approved by the United'States Surveyor-General and the Judge of the District Court. Three other surveys of the Colus Rancho were offered by the plaintiff, without any explanation as to the action taken upon them by the Surveyor-General or the United States District Court. In such a condition of the evidence in respect to the survey of the Colus Rancho, it is [454]*454impossible to pass upon these- questions satisfactorily to ourselves, and as it will be necessary to order a new trial on'other-grounds,- we think it-unnecessary to pass upon those questions at this time, but.will -leave the parties to present their evidence in the Court below, unrestricted by our opinion rendered upon a very unsatisfactory and meagre statement of facts.
We will proceed to notice further some of the errors assigned by the plaintiff. The deed from Frederick H. Larkin and Rachel Larkin to Jerome Lincoln was improperly admitted as evidence. There was no proof that Larkin made a will as mentioned in the deed, nor that he was 'dead, except that afforded by the Act of the Legislature, which denominates him “ Thomas 0. Larkin, deceased,” and we doubt the power of the Legislature to determine judicially that Larkin was dead, or that he made a will; or if dead, who were his executors, or any other fact that must be ascertained by the proper Court, in' order that proceedings to sell the real estate of any alleged.decedent may have any validity.
The Court erred in admitting in evidence that portion of the “ Spanish documents ” consisting of the grant of the Sal Si Puedes, and other ranchos, which were offered for the purpose of proving that the Mexican Government had granted to Jimeno more than eleven leagues, previous to the grant of the Jimeno Rancho. These matters might perhaps have been properly addressed to the Federal authorities, in the proceedings to confirm the Jimeno Rancho title, but the legality or effect of a patent issued by the United States cannot, in this manner, be called in question. And for the same reason the several conveyances by Jimeno, of those ranchos to Crockett, Davidson and others were inadmissible.
The questions arising upon the admission of certain other-deeds offered by the defendants, have been disposed of in considering the effect of the deeds already referred to.
The plaintiff also assigns for error the admission, as evidence, of-the confirmation, survey and decree of-confirmation thereof of the Coins Rancho, and of oral testimony respecting the quantity of land within the exterior lines of the Jimeno [455]*455Rancho; also, the exclusion of evidence offered by him in relation to the different locations claimed by defendant Semple of the Colus Rancho; but it is unnecessary to pass upon those points until the main questions, arising out of the conflict of the boundaries of the two ranchos are presented as above indicated.
Judgment reversed and cause remanded for a new trial.
Mr. Chief Justice Sanderson expressed no opinion. .