By the Court, Crockett, J.:
The first point of inquiry is, whether the instrument from Gowen to Alexander McKay, of April 26th, 1856, was operative as a deed to convey the legal title of Gowen to the demanded premises; for. if it had that effect it is evident the defendants are estopped by the judgment in the case of McKay v. Petaluma Lodge and others, from again litigating [227]*227the same title in this action. It is not pretended that the defendants have acquired any new title or right to the possession derived from or under Gowen since the commencement of that action, except the conveyance from his daughter, made after his death, during the pendency of the present action, and which will be hereafter noticed. But if McKay acquired the legal title of Gowen by means of the instrument of April 26th, 1856, that title was ■ distinctly put in issue and tried in the action against Petaluma Lodge and others, and was decided against McKay. The judgment, it is true, does not, on its face, expressly and in terms, adjudicate the title in respect" to the premises now in controversy. But the title to the premises was distinctly in issue, and McKay put in evidence oral and documentary proofs in support of his alleged title under Gowen. The judgment awarded to him the adjoining strip of land, five feet in width (which was also in contest in the action), but is wholly silent as to the premises now in controversy. The omission of the Court to award to him any relief in respect to these premises is, in its legal effect, an adjudication that he was not entitled to relief in that action. (Marshall v. Shafter, 32 Cal. 176; Jones v. Petaluma, 36 Cal. 230.) His title under Gowen was put in evidence, and the Court must have decided it to be insufficient to entitle him to a judgment for the possession, as against Gowen’s tenants. If the Court had decided otherwise it would have awarded to him the proper relief. But the plaintiff in ejectment must recover, if at all, on the legal title or right to the possession, and not on a mere equity; and a fruitless attempt to maintain ejectment on an equitable title would not debar him from asserting his equity in another and appropriate action in the proper forum. But if McKay, by means of the instrument referred to, had acquired Gowen’s legal title before the commencement of that action, and put it in issue by the pleadings, and adduced evidence in support of it, he is obviously concluded by the [228]*228judgment, and cannot again litigate the same title in the present action. It therefore becomes material to determine the character and legal effect of that instrument. The rule is well established that, in construing doubtful instruments, they must be interpreted in the light of the surrounding circumstances. After ascertaining the relation of the contracting parties to each other, and the subject matter of the contract, the Court will, if possible, so construe the instrument, however inartificially drawn, as to give effect to the intention of the parties, provided it "can be done without disregarding the language of the instrument, when all its parts are considered. The proofs make it clear that in 1855 Gowen claimed to be the owner of a lot having a frontage of twenty feet, on which he desired to erect a building one story high, and applied to Alexander McKay for that purpose; that McKay ascertained that the Masons in that vicinity desired to procure a large hall for their use, but a room over Gowen’s lot would be too small for the purpose; and thereupon it was verbally agreed between Gowen and McKay that the latter should obtain the title to an additional strip of land five feet wide, and that there should be erected a house two stories high, covering the front of Gowen’s lot, together with the strip of five feet, Gowen to furnish the material for the building, and McKay to do the work; and when completed Gowen was to own the first story and McKay the Second; that the building was accordingly erected, and the outer wall occupied a portion of the five feet, and the stairway the remainder of it, together with a small strip from Gowen’s lot; that when the building was complete Gowen leased the first story to a tenant", who entered into possession, and McKay leased the second story, by a written lease, for a term of three years, to the Masons, who entered aud occupied under the lease. "Whilst affairs were in this condition, in April, 1856, and when on the eve [229]*229of a visit to the Eastern States, Gowen made and delivered to McKay an instrument in these words:
“Article of agreement made and entered this 26th day of April, A. D. 1856, between Heber Gowen of the first party, and Alexander McKay of the second party, witnessed that said party of the first party, for and in consideration of the premises, and hereby covenants and agrees to give up all right and title to the party of the second party since all his assigns forever hereafter, all the following described property hereafter mentioned on Main street, Petaluma, California: The second story of the store part of five feet for an entrance for the use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.
“ Hereunto the above agreement set my hand and seal this 26th day of April, in the year 1856.
[seal.] (Signed,) “HEBER GOWER.”
Rotwithstanding the very awkward, inaccurate, and obscure language of this instrument, I think it is capable of interpretation,-when considered in the light of the surrounding facts. McKay owned the strip five feet wide; but the outer wall occupied about two feet of this space, and the stairway covered not only the remainder, but also a small portion of Gowen’s lot. McKay, by his tenants, the Masons, was in the possession of the second story, in accordance with the parol agreement, and Gowen obviously intended by this instrument, made on the eve of his departure on a long journey, to define.McKay’s rights in the property. Hence he covenants and agrees to “give up” to him “all right and title” (to) “all the following described property hereinafter mentioned, on Main street, Petaluma, California: The second story of the store and part of five feet of ground for an entrance for use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.” By interpolating the word “and” between the words “store” [230]*230and “part,” in the"last sentence, and correcting the punctuation, the meaning becomes obvious. The.property intended to be conveyed was the second story, occupied by the Odd Fellows and Masons, above the store, together with a right of way over so much of Go'wen’s lot as was occupied by the stairway.
I am, therefore, of opinion that the instrument was not void for uncertainty, and that it was operative to convey, and did convey, to McKay all the title of Gowen, legal or equitable, in and to the second story and the stairway. From this view of the legal effect of the instrument, it results that McKay had the legal title of Gowen at the commencement of the action against Petaluma Lodge and others, and is, therefore, estopped by the judgment in that action from again litigating the title in the present action.
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By the Court, Crockett, J.:
The first point of inquiry is, whether the instrument from Gowen to Alexander McKay, of April 26th, 1856, was operative as a deed to convey the legal title of Gowen to the demanded premises; for. if it had that effect it is evident the defendants are estopped by the judgment in the case of McKay v. Petaluma Lodge and others, from again litigating [227]*227the same title in this action. It is not pretended that the defendants have acquired any new title or right to the possession derived from or under Gowen since the commencement of that action, except the conveyance from his daughter, made after his death, during the pendency of the present action, and which will be hereafter noticed. But if McKay acquired the legal title of Gowen by means of the instrument of April 26th, 1856, that title was ■ distinctly put in issue and tried in the action against Petaluma Lodge and others, and was decided against McKay. The judgment, it is true, does not, on its face, expressly and in terms, adjudicate the title in respect" to the premises now in controversy. But the title to the premises was distinctly in issue, and McKay put in evidence oral and documentary proofs in support of his alleged title under Gowen. The judgment awarded to him the adjoining strip of land, five feet in width (which was also in contest in the action), but is wholly silent as to the premises now in controversy. The omission of the Court to award to him any relief in respect to these premises is, in its legal effect, an adjudication that he was not entitled to relief in that action. (Marshall v. Shafter, 32 Cal. 176; Jones v. Petaluma, 36 Cal. 230.) His title under Gowen was put in evidence, and the Court must have decided it to be insufficient to entitle him to a judgment for the possession, as against Gowen’s tenants. If the Court had decided otherwise it would have awarded to him the proper relief. But the plaintiff in ejectment must recover, if at all, on the legal title or right to the possession, and not on a mere equity; and a fruitless attempt to maintain ejectment on an equitable title would not debar him from asserting his equity in another and appropriate action in the proper forum. But if McKay, by means of the instrument referred to, had acquired Gowen’s legal title before the commencement of that action, and put it in issue by the pleadings, and adduced evidence in support of it, he is obviously concluded by the [228]*228judgment, and cannot again litigate the same title in the present action. It therefore becomes material to determine the character and legal effect of that instrument. The rule is well established that, in construing doubtful instruments, they must be interpreted in the light of the surrounding circumstances. After ascertaining the relation of the contracting parties to each other, and the subject matter of the contract, the Court will, if possible, so construe the instrument, however inartificially drawn, as to give effect to the intention of the parties, provided it "can be done without disregarding the language of the instrument, when all its parts are considered. The proofs make it clear that in 1855 Gowen claimed to be the owner of a lot having a frontage of twenty feet, on which he desired to erect a building one story high, and applied to Alexander McKay for that purpose; that McKay ascertained that the Masons in that vicinity desired to procure a large hall for their use, but a room over Gowen’s lot would be too small for the purpose; and thereupon it was verbally agreed between Gowen and McKay that the latter should obtain the title to an additional strip of land five feet wide, and that there should be erected a house two stories high, covering the front of Gowen’s lot, together with the strip of five feet, Gowen to furnish the material for the building, and McKay to do the work; and when completed Gowen was to own the first story and McKay the Second; that the building was accordingly erected, and the outer wall occupied a portion of the five feet, and the stairway the remainder of it, together with a small strip from Gowen’s lot; that when the building was complete Gowen leased the first story to a tenant", who entered into possession, and McKay leased the second story, by a written lease, for a term of three years, to the Masons, who entered aud occupied under the lease. "Whilst affairs were in this condition, in April, 1856, and when on the eve [229]*229of a visit to the Eastern States, Gowen made and delivered to McKay an instrument in these words:
“Article of agreement made and entered this 26th day of April, A. D. 1856, between Heber Gowen of the first party, and Alexander McKay of the second party, witnessed that said party of the first party, for and in consideration of the premises, and hereby covenants and agrees to give up all right and title to the party of the second party since all his assigns forever hereafter, all the following described property hereafter mentioned on Main street, Petaluma, California: The second story of the store part of five feet for an entrance for the use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.
“ Hereunto the above agreement set my hand and seal this 26th day of April, in the year 1856.
[seal.] (Signed,) “HEBER GOWER.”
Rotwithstanding the very awkward, inaccurate, and obscure language of this instrument, I think it is capable of interpretation,-when considered in the light of the surrounding facts. McKay owned the strip five feet wide; but the outer wall occupied about two feet of this space, and the stairway covered not only the remainder, but also a small portion of Gowen’s lot. McKay, by his tenants, the Masons, was in the possession of the second story, in accordance with the parol agreement, and Gowen obviously intended by this instrument, made on the eve of his departure on a long journey, to define.McKay’s rights in the property. Hence he covenants and agrees to “give up” to him “all right and title” (to) “all the following described property hereinafter mentioned, on Main street, Petaluma, California: The second story of the store and part of five feet of ground for an entrance for use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.” By interpolating the word “and” between the words “store” [230]*230and “part,” in the"last sentence, and correcting the punctuation, the meaning becomes obvious. The.property intended to be conveyed was the second story, occupied by the Odd Fellows and Masons, above the store, together with a right of way over so much of Go'wen’s lot as was occupied by the stairway.
I am, therefore, of opinion that the instrument was not void for uncertainty, and that it was operative to convey, and did convey, to McKay all the title of Gowen, legal or equitable, in and to the second story and the stairway. From this view of the legal effect of the instrument, it results that McKay had the legal title of Gowen at the commencement of the action against Petaluma Lodge and others, and is, therefore, estopped by the judgment in that action from again litigating the title in the present action.
But the defendants claim that the deed from Gowen to Hill, under which the plaintiff deraigns title, was a conveyance in trust, with a power of sale, for the purpose of satisfying the trust debt, but for no other purpose; and that the proofs show the trust debt was paid before the conveyance from Hill to Meachem, and this conveyance is void for want of authority in Hill to make it. That the deed from Gowen to Hill conveys the fee, and that Hill had the power, in execution of the trust, to transmit the legal title to a purchaser, is too plain for debate.
As this record presents the facts, there is nothing to show that the conveyance to Meachem was not made in execution of the trust, and for payment of the trust debt. It appears on the face of the deed to Hill that the property was already incumbered, and the plaintiff offered to prove that he had been compelled to disburse large sums to remove prior incumbrances, and to preserve the trust fund for the security and satisfaction of the trust. On the objection of the defendants this proof was excluded by the Court, and it is not for them to complain that the plaintiff has failed to show how [231]*231he applied the rents and proceeds of sales. If they were applied for the extinguishment of prior incumbrances, and to preserve the trust fund, I think the trustee did not thereby exceed his powers; but it is unnecessary to express any decided opinion on that point. "Under such a trust as this, , it was not incumbent on the purchaser to institute an examination into the accounts of the trustee, on pain of losing the property, if it should ultimately appear, on a final settlement of the trust, that the trust debt had in fact been satisfied out of the rents before the sale. If the purchaser incurred this peril, there would be but few sales under such deeds. The rule that a purchaser at a trust sale is bound, in certain cases, to see to the application of the proceeds of the sale, does not apply to a case like this; and if it did, it would concern only the cestui que trust and the purchaser.
The only remaining point is as to the effect of the conveyance from the heir at law, of Go wen to the defendants pendente lite. It is sufficient, on this point, to say that it has been frequently decided by this Court that a defendant cannot avail himself of a title acquired during the pendency of the action, "unless it is set up in a supplemental answer. If acquired after the original answer was filed, he should set it up in an amended answer, on leave of the Court. Otherwise it will not avail the defendant on the trial.
Judgment affirmed.
.Keither Mr. Justice Wallace nor Mi’. Justice Temple expressed an opinion.