By the Court, Sanderson, J. :
This case turns upon the construction of the deed from Teodora Soto and Desiderio Briones, her husband, to the plaintiff, and the deed from the same parties to J. B. Crockett and Lucy B. Page. The question is whether the deeds embrace the lands in controversy, or relate to other lands not in suit. The description in the deed to the plaintiff is as follows: “One undivided half part of all that certain tract or parcel of land situate, lying and being in the County of Contra Costa, in the State of California, known as the ‘Pancho Cañada del Hambre y las Bolsas,’ being the tract of laud upon which the Town of Martinez is situated, and the same confirmed to said Teodora Soto by decree of the District Court of the United States for the Northern District of California, and surveyed by order of the Surveyor General of the United States for California, by A. W. Von Schmidt, Deputy Surveyor, in March, 1860, and approved by said Surveyor General; the said tract, according to said survey, containing thirteen thousand three hundred and twelve and seventy one-hundreths acres of land; saving and excepting therefrom the piece of land now occupied and inclosed by the parties of the first part, and also the adobe house built by them, now occupied by one Lathrop, and a convenient lot of land adjacent to said adobe house, and upon which the same stands, the whole, however, including the said tract now occupied and inclosed as aforesaid, or so much thereof as may be necessary, not to exceed the area of twenty-five acres of land.”
The language of the deed to Crockett and Page is substantially the same, omitting the reservation of twenty-five acres.
The case shows that the “Rancho Cañada del Hambre y las Bolsas” was granted as a sobrante to Teodora Soto by Juan B. Alvarado, then Governor of California, ou the 14th of December, 1841—the grant to consist of so much of the tract of laud known, at the date of said grant, as the [614]*614“ Cañada del Hambre,” as should remain as overplus from the ranchos of Pinole and Welch, not exceeding three square leagues. This grant was confirmed to Teodora Soto by the Board of Land Commissioners on the 15th day of May, 1855, and the confirmation was affirmed by the United States District Court on the 16th day of April, 1857. The Attorney General of the United States having given notice that no appeal would be prosecuted, the District Court of the United States, on the 11th of August, 1857, decreed that Teodora Soto have leave to proceed under its former decree as under final decree. In March, 1860, by order of the Surveyor General of the United States for California, a survey of the grant was made by his deputy, Von Schmidt, and approved by the former. In May, 1860, the two deeds in question were made. On the 25th day of July, 1866, the matter of survey came before the District Court of the United States, and a survey embracing almost entirely other land than that embraced in the Von Schmidt survey was confirmed by the Court. The lands in controversy are within the survey as confirmed on the 25th of July, 1866, but are not within the Von Schmidt survey. Whether any action was ever taken by the Court upon the Von Schmidt survey, and if so, what, does not appear except inferentially. Prom the fact that a different survey embracing almost entirely different land was finally confirmed, it is evident that the Von Schmidt survey was not considered correct.
In the foregoing statement of the facts, in view of which the question of construction is to be determined, we have included not only the facts which were disclosed by the plaintiff’s testimony, but also the facts which the defendants offered to prove, but were not allowed to prove by reason of the ruling of the Court that they were not admissible. In its ruling the Court erred, technically speaking, for the testimony offered by the defendants was pertinent to the question of construction, and should, therefore, have been received. The ambiguity, if such it was, was latent, and for the purpose of its solution, all the facts and circumstances by [615]*615which the parties and the subject matter were surrounded were relevant and pertinent. (Reamer v. Nesmith, 34 Cal. 624; Saunders v. Clark, 29 Cal. 304.) But the error does not entitle the defendants to a new trial, unless the facts which they offered to prove would have the effect, when proved, to change the construction of the deed which was declared at the trial.
There are in all five calls, aside from the State and county, four of which are common to both deeds, the fifth being found only in the deed to the plaintiff. They are as follows: first—the tract of land known as the Rancho Cañada del Hambre y las Bolsas; second—the tract of land on which the Town of Martinez is situated; third—the tract of land confirmed to Teodora Soto by decree of the District Court of the United States; fourth—the tract of land surveyed by Yon Schmidt, by order of the Surveyor General, in March, 1860, and approved by the latter, containing thirteen thousand three hundred and twelve and seventy one-hundredths acres; fifth—the tract of land upon which the reservation described in the deed to plaintiff is situated.
Of these calls, the second, fourth, and fifth do not describe the land in controversy; but this cannot be affirmed of the first and third. The first, considered by the light of the surrounding circumstances, does not indicate or describe a specific tract of land, but a sobrante or overplus not yet segregated. As already suggested, for the purpose of ascertaining what land the parties intended, the one to sell and the other to buy, we must assume their places in respect to time and circumstances. The time was May, 1860; the circumstances such as have been detailed. The vendor had a Mexican grant, not to any specific tract of land, but to the overplus of a tract called the Cañada del Hambre y las Bolsas, which tract had been confirmed to her by the United States, but had not been finally segregated from the land of which it was a part. True, a survey had been made by the proper officer, but it was well known to both parties that the survey was not final, and might be set aside or disregarded [616]*616by the District Court of the United States, and a different survey made and finally confirmed, as was, in fact, subsequently done. Under these circumstances, the name Rancho Cañada del Hambre y las Bolsas could not have suggested to the minds of the contracting parties anything else than the thing which it, in fact, had previously and still represented, an unlocated or floating grant. So of the third call, “the tract of land confirmed to Teodora Soto by the decree of the District Court of the United States.” From the nature of the case, this call could not have referred to the land described in the second, fourth, and fifth calls, or any other specific land, for no specific land had been confirmed. What was the tract of land which had been confirmed by the decree of the District Court? Certainly not the land on which Martinez was situated, nor the land which had been surveyed by Von Schmidt, but a tract not yet located or specified, but floating within exterior lines containing a much larger quantity, and which might or might not be located according to the Von Schmidt survey.
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By the Court, Sanderson, J. :
This case turns upon the construction of the deed from Teodora Soto and Desiderio Briones, her husband, to the plaintiff, and the deed from the same parties to J. B. Crockett and Lucy B. Page. The question is whether the deeds embrace the lands in controversy, or relate to other lands not in suit. The description in the deed to the plaintiff is as follows: “One undivided half part of all that certain tract or parcel of land situate, lying and being in the County of Contra Costa, in the State of California, known as the ‘Pancho Cañada del Hambre y las Bolsas,’ being the tract of laud upon which the Town of Martinez is situated, and the same confirmed to said Teodora Soto by decree of the District Court of the United States for the Northern District of California, and surveyed by order of the Surveyor General of the United States for California, by A. W. Von Schmidt, Deputy Surveyor, in March, 1860, and approved by said Surveyor General; the said tract, according to said survey, containing thirteen thousand three hundred and twelve and seventy one-hundreths acres of land; saving and excepting therefrom the piece of land now occupied and inclosed by the parties of the first part, and also the adobe house built by them, now occupied by one Lathrop, and a convenient lot of land adjacent to said adobe house, and upon which the same stands, the whole, however, including the said tract now occupied and inclosed as aforesaid, or so much thereof as may be necessary, not to exceed the area of twenty-five acres of land.”
The language of the deed to Crockett and Page is substantially the same, omitting the reservation of twenty-five acres.
The case shows that the “Rancho Cañada del Hambre y las Bolsas” was granted as a sobrante to Teodora Soto by Juan B. Alvarado, then Governor of California, ou the 14th of December, 1841—the grant to consist of so much of the tract of laud known, at the date of said grant, as the [614]*614“ Cañada del Hambre,” as should remain as overplus from the ranchos of Pinole and Welch, not exceeding three square leagues. This grant was confirmed to Teodora Soto by the Board of Land Commissioners on the 15th day of May, 1855, and the confirmation was affirmed by the United States District Court on the 16th day of April, 1857. The Attorney General of the United States having given notice that no appeal would be prosecuted, the District Court of the United States, on the 11th of August, 1857, decreed that Teodora Soto have leave to proceed under its former decree as under final decree. In March, 1860, by order of the Surveyor General of the United States for California, a survey of the grant was made by his deputy, Von Schmidt, and approved by the former. In May, 1860, the two deeds in question were made. On the 25th day of July, 1866, the matter of survey came before the District Court of the United States, and a survey embracing almost entirely other land than that embraced in the Von Schmidt survey was confirmed by the Court. The lands in controversy are within the survey as confirmed on the 25th of July, 1866, but are not within the Von Schmidt survey. Whether any action was ever taken by the Court upon the Von Schmidt survey, and if so, what, does not appear except inferentially. Prom the fact that a different survey embracing almost entirely different land was finally confirmed, it is evident that the Von Schmidt survey was not considered correct.
In the foregoing statement of the facts, in view of which the question of construction is to be determined, we have included not only the facts which were disclosed by the plaintiff’s testimony, but also the facts which the defendants offered to prove, but were not allowed to prove by reason of the ruling of the Court that they were not admissible. In its ruling the Court erred, technically speaking, for the testimony offered by the defendants was pertinent to the question of construction, and should, therefore, have been received. The ambiguity, if such it was, was latent, and for the purpose of its solution, all the facts and circumstances by [615]*615which the parties and the subject matter were surrounded were relevant and pertinent. (Reamer v. Nesmith, 34 Cal. 624; Saunders v. Clark, 29 Cal. 304.) But the error does not entitle the defendants to a new trial, unless the facts which they offered to prove would have the effect, when proved, to change the construction of the deed which was declared at the trial.
There are in all five calls, aside from the State and county, four of which are common to both deeds, the fifth being found only in the deed to the plaintiff. They are as follows: first—the tract of land known as the Rancho Cañada del Hambre y las Bolsas; second—the tract of land on which the Town of Martinez is situated; third—the tract of land confirmed to Teodora Soto by decree of the District Court of the United States; fourth—the tract of land surveyed by Yon Schmidt, by order of the Surveyor General, in March, 1860, and approved by the latter, containing thirteen thousand three hundred and twelve and seventy one-hundredths acres; fifth—the tract of land upon which the reservation described in the deed to plaintiff is situated.
Of these calls, the second, fourth, and fifth do not describe the land in controversy; but this cannot be affirmed of the first and third. The first, considered by the light of the surrounding circumstances, does not indicate or describe a specific tract of land, but a sobrante or overplus not yet segregated. As already suggested, for the purpose of ascertaining what land the parties intended, the one to sell and the other to buy, we must assume their places in respect to time and circumstances. The time was May, 1860; the circumstances such as have been detailed. The vendor had a Mexican grant, not to any specific tract of land, but to the overplus of a tract called the Cañada del Hambre y las Bolsas, which tract had been confirmed to her by the United States, but had not been finally segregated from the land of which it was a part. True, a survey had been made by the proper officer, but it was well known to both parties that the survey was not final, and might be set aside or disregarded [616]*616by the District Court of the United States, and a different survey made and finally confirmed, as was, in fact, subsequently done. Under these circumstances, the name Rancho Cañada del Hambre y las Bolsas could not have suggested to the minds of the contracting parties anything else than the thing which it, in fact, had previously and still represented, an unlocated or floating grant. So of the third call, “the tract of land confirmed to Teodora Soto by the decree of the District Court of the United States.” From the nature of the case, this call could not have referred to the land described in the second, fourth, and fifth calls, or any other specific land, for no specific land had been confirmed. What was the tract of land which had been confirmed by the decree of the District Court? Certainly not the land on which Martinez was situated, nor the land which had been surveyed by Von Schmidt, but a tract not yet located or specified, but floating within exterior lines containing a much larger quantity, and which might or might not be located according to the Von Schmidt survey. It is unreasonable to suppose that calls of the character of the first and third, which, under the circumstances, as we have seen, could mean nothing else than the unlocated or floating grant of which Teodora Soto was the owner, would have been used at all, had the land included in the Von Schmidt survey been intended, and nothing else. Had Teodora Soto intended to sell her grant only in the event that it should be finally located according to the Von Schmidt survey, it is not reasonable to suppose that she would have used other calls, not only not needed for the purposes of demonstration, but calculated to defeat her real by indicating a different intent. If she did not intend to sell her grant, regardless of its location, why refer to it by name ? Why speak of it as having been confirmed by the District Court ? She could have had no sensible motive in doing so, except to point out the grant, regardless of its true location, as the subject matter of her contract; for by doing so she added nothing to the certainty of the description of the land included in the Von Schmidt survey. The fact that [617]*617she did so shows that her mind was not fixed solely upon the land included in the Von Schmidt survey, but upon her grant known as the Rancho Cañada del Hambre y las Bolsas, which had been confirmed to her, but not finally located; that it was her rancho which she had in mind, and which she intended to sell. In view of all the circumstances, we think there could be no well grounded doubt but that she intended to sell her grant, and not any specific land; but concede it to be doubtful, the language of the deed must be taken as hers, and all doubts must be solved against her. (Vance v. Fore, 24 Cal. 435; Muller v. Boggs, 25 Cal. 175.)
The conclusion which we have reached is in full harmony, in our judgment, with the technical rules of construction. It is argued, on the part of the defendants, that the first and third calls are general, while the other calls are particular, and operate as a restriction or limitation upon the former. It is very doubtful whether any of the calls can be considered as particular. The metes and bounds of the Von Schmidt survey are not given, nor is the survey referred to for the purpose of making it a part of the deed; all that is said being, that a survey has been made. So of the other calls. It is doubtful if they can be classed as particular descriptions; but concede, for the sake of the argument, that the first and third are general, and the second, fourth, and fifth are particular, we are of the opinion that the latter have not been used,in the sense of restriction, but in the sense of reiteration or affirmation.
It is further argued, on the part of the defendants, that we must place ourselves in the position of the parties at the time the deeds were made, and locate the lands as the parties themselves, then going upon the lands with the deeds in their hands, would have located them, without regard to what may have subsequently transpired. Of the soundness of the general rule that facts subsequently developed, unknown to the parties at the time the conveyance was made, cannot be taken into, account upon question 3 of this character, there [618]*618can be no doubt. (Van Wyck v. Wright, 18 Wend. 157.) The reason is obvious. Being ignorant of such facts, the parties could not have contracted with any reference to them, and their intentions can in no respect be illustrated by them. But the rule is not applicable to this case, for the ground upon which it rests is wanting. The facts which subsequently transpired, and which we are asked to disregard, are the survey made in 1866 and its confirmation by the District Court. Ignorance on the part of the parties of that survey and its confirmation cannot be affirmed, in the sense of the rule in question. While they did not know that such a survey would be made and confirmed, they knew-that the Yon Schmidt survey had not been confirmed—that it might be set aside and another made and confirmed, by which the rancho might be located upon different land, in whole or in part; which amounts to the same thing. The argument begs the question, for it assumes that the second survey was a fact of subsequent development. Eo nomine it was, but the second survey, notwithstanding, merely represented, under a different name, a fact which existed at the date of the deeds, and which was well known to the parties—the fact that the land to be conveyed had not been finally located, and might or might not turn out to be the land which had been surveyed by Yon Schmidt.
It is further contended, on the part of the defendants, that all the calls apply to the land described in the Yon Schmidt survey; that that land was known as the Pancho Cañada del Hambre y las Bolsas, and as the land confirmed to Teodora Soto, at the time the deeds were made; all of which they offered to prove. All this, from the nature of the ease, can mean nothing more than that after the Yon Schmidt survey was made the lands surveyed by him went by the name of the Pancho Cañada del Hambre y las Bolsas. If such was the case, it cannot alter the result, for the fact (which is the pivot of the question) that the land then going by that name might not be the land to which that name in truth and in fact belonged, was none the less well known to the contract[619]*619ing parties, a fact which cannot be ignored or overcome by any process of reasoning founded upon the other facts of the case. The fact that Teodora Soto had only a floating grant to sell; that it had been confirmed only, and not segregated; that she described it by its proper name and by the fact of confirmation, which fact, at the date of the deeds, could have no application to any land except that upon which her floating grant might finally settle, and could illustrate no intent on her part except to sell her floating grant, are in no respect weakened by the fact that she supposed the Von Schmidt survey was correct. All parties, doubtless, so supposed, but they also knew that it might not be correct, and contracted in view of such knowledge.
The fact that the subject matter was a floating grant, distinguishes this from all the cases upon the question of construction to which our attention has been called. Those cases deal only with specific or segregated lands, and illustrate the rules of construction where there are general and particular, true and false descriptions. They are, therefore, but remotely analagous, and afford but little aid in solving the question presented by the record in this case. The eases which approach more nearly in their facts and circumstances are those where the land is described by number or name, and also by metes and bounds, and the grantor owns lands answering to the one and not to the other. In such cases, the description which applies to the land which he owned will be adopted as the true one, and the other discarded as false. Of this rule, Lush v. Druse, 4 Wend. 313, is an example. That was the case of a lease of a lot by its number, followed by a description by metes and bounds, which included lands which the lessor never owned, and the description by metes and bounds was rejected, and the one by number taken as the true description. Under this rule, the “Town of Martinez,” the “Von Schmidt survey,” and the “ reservation of twenty-five acres,” which designate land which Teodora Soto never owned, must be rejected, and the “ Eancho Cañada del Hambre y las Bolsas ” and “ the land [620]*620confirmed by the District Court of the United States,” which sufficiently designate land which she did own, must he taken as the true description.
The order denying the plaintiff’s motion for a new trial, as against the defendants Hazzard, Hunsacker, Welch, L. J. Dunn, Antonio Garrido, Antonia Garrido, and Thomas J. Smith, is reversed, and a new trial granted.
Mr. Justice Crockett, being disqualified, took no part in the decision.