ROSS, J., dissenting: The premises in controversy form a part of the San Pedro Bancho, situated in Los Angeles County. In an action brought in the District Court of that county for the partition of the rancho—in which action all of the owners were made parties —an interlocutory decree was entered in the year 1855, by which it was, among other things, decreed that José Antonio Aguirre and Concepcion Bocha de Bodriguez each owned a certain undivided interest therein. Beferees were appointed to make the partition in accordance with the interlocutory decree. Subsequent to the interlocutory decree, but before the entry of the final decree—that is to say, on the 18th of September, 1855—Concepcion Bocha de Bodriguez conveyed by deed all of her interest in the rancho to Manuel Dominguez, who (also prior to the entry of the final decree) sold the same to José Antonio Aguirre, the deed for which, however, he did not execute to Aguirre until December 27th, 1855. The final decree was entered on the 14th of the same month. The referees caused a survey and map of the rancho and of the respective allotments to be made, and in making the division allotted to José Antonio Aguirre one tract of land, in lieu both of the interest he originally had and of the interest he acquired from Concepcion Bocha de Bodriguez through Dominguez. On the map of the partition are set down the respective allotments of the various owners, each of which is surrounded by a differently colored line, and with the name of the party or parties to whom it is awarded written thereon. The allotment in question in this case is surrounded by red lines, but running through it, in an easterly and westerly direction, is a black line. On the tract surrounded by the red lines, and extending across the black line is written the name “José Antonio Aguirreand on that portion of the tract surrounded by the red lines lying north of the black line, is written the name of “Concepcion Bocha de Bodriguez.” On the margin of the [34]map is a table of the courses and distances of each allotment. Those referring to the allotment in question commence at station No. 1, and follow the red lines in the order of the stations, thus inclosing the whole tract; and at the bottom of the tabling the area of the whole tract is given thus: “Area ten thousand four hundred and five and one half.” No courses or distances are given of the black line, and the surveyor who made the survey and map testified that this line was not run on the ground, but that he drew it on the map, through the red-line tract, for the purpose of showing the portion awarded to Aguirre by virtue of his original ownership and the portion he acquired through Concepcion Rocha de Rodriguez; and, further : “ It was at the request of Aguirre and his attorney, Mr. Brent, that I treated the Concepcion Rocha tract as it is. At the time I made the survey this was considered Aguirre’s land, and I was instructed to put it all in one lot and not run the division line, because it all belonged to one.”
After the conveyance by Concepcion Rocha de Rodriguez, the action was continued in her name by virtue of § 385 of the Code of Civil Procedure, for the benefit of her successor in interest, and by the final decree that portion of the red-line tract situated south of the black line was awarded to Aguirre in his own name, and that portion of said tract lying north of the black line was awarded to him in the name of Concepcion Rocha de Rodriguez, in whose name, as already said, the action had been continued. Subsequently, to wit, on the 9th of June, 1856, Aguirre executed to Augustin Olvera the deed under which the defendants claim. If this deed conveyed to Olvera the land in controversy, then it is not pretended that the plaintiffs have any title; for they claim only as heirs of Aguirre. And that the deed did convey all of the disputed premises, appears from the record to have been supposed by the original grantor and all other parties in interest, until May, 1877, when the guardian of the minor plaintiffs discovered a “ flaw in the title.” In the mean time, a large number of persons (defendants here) had bought distinct parcels of the tract, and built up valuable improvements thereon. A few days after the conveyance from Aguirre to Olvera, the latter conveyed the same property to Rosario Estudillo de Aguirre, wife of José Antonio Aguirre. The [35]conveyance by Aguirre to Olvera, and by Olvera to the wife of Aguirre, was adopted by the parties as a means of vesting the property in Aguirre’s wife. The witness Manuel Dominguez, in speaking of this circumstance, said: “ José Antonio Aguirre told me he wanted to leave to his wife and family the land that belonged to him in the Rancho San Pedro. He had two sections, one that I sold him, and the one that he bought from my brother Pedro, and he told me that he wanted to make an arrangement with his wife to make her a deed so that she would be secured in the case of his death. Then, one day he came to Los Angeles, and when he returned he told me that he had inquired of a lawyer, who told him he could not make any trade direct with his wife: that he should sell to a third party, and the third party to his wife, and that he was going to do it with Don Augustin Olvera, and he subsequently told me he had made the conveyance to his wife through Olvera.”
Whatever interest was acquired by the wife of Aguirre by the deed from Olvera is vested in the defendants, and as this interest is precisely the same as that conveyed to Olvera by the deed from José Antonio Aguirre, the question is, as already said, what is the true interpretation of the last mentioned deed ?•—the description in which is as follows:
“ A certain tract or parcel of land situated in the County of Los Angeles, and said tract or parcel aforesaid being a part of the land known by the name of the Rancho of San Pedro or Los Dominguez, and which piece of land is the same that belonged to José Antonio Aguirre, party of the first part, and which he has in his possession under a partition that was made of said land of the Rancho of San Pedro in December, 1855, as is set forth by a final decree in the matter of the District Court of the First Judicial District of the State of California, dated December 14th, 1855, entered in the Book of Judgments of said Court, and in conformity to the survey and map drawn of all the land aforesaid, by which is shown the portion and situation of land that belonged to each of the parties interested in said Rancho de San Pedro, and which survey and map drawn was executed by George Hansen, Deputy County Surveyor of the County of Los Angeles, and the portion of land which belonged to said José Antonio Aguirre,. [36]party of the first part, being bounded and described as follows, to wit: Commencing at a stone in the summit of a hill, the line of the northern exterior boundary of said rancho, being the tenth station on said map; thence running toward the north-east in a direct line to the point known as the old house, including the same, thence in a line, course east, to the river San Gabriel; thence down the mid-channel of said river to-the north line in the boundary of Maria de Jesus Dominguez; thence following the. north-west boundary of said Maria de Jesus and the north boundary of the said Manuel Dominguez to the point of beginning.”
The last call in the deed, namely, the description by metes and bounds, only embraces that portion of the tract included within the red lines, and awarded to José Antonio Aguirre in the partition, which is situated south of the black line; and it is insisted on the part of the appellants that this specific description controls the other calls of the deed. On the other hand, it is urged for the defendants that the deed contains five calls, viz.: 1. The land “that belonged to José Antonio Aguirre and which he has in his possession under a partition made of the rancho of San Pedro in December, 1855.” 2. “ As is set forth by a final decree in the matter * * * entered in the book of judgments of said Court.” 3. “And in conformity to the survey and map drawn of all the land aforesaid, by which is shown the portion and situation of land that belonged to each of the parties interested in said Rancho de San Pedro, and which survey and map drawn was executed by George Hansen, Deputy County Surveyor,” etc. 4. “ The portion of land which belonged to José Antonio Aguirre.” And, 5. The description by metes and bounds; and that the latter, to wit, the description by metes and bounds, was not intended to be used in the sense of restriction, but in the sense of reiteration or affirmation, and that in so far as it is erroneous or defective it must be rejected as false. In this I agree with the counsel for the defendants. The land which belonged to Aguirre, under the partition of the rancho, was the red-line tract, which included the premises in controversy, and the partition survey and map of the rancho showed this tract to have been allotted to him. All of the calls of the deed, therefore, except the de[37]scription by metes and bounds, clearly enough refer to and describe the whole of the red-line tract, while the description by metes and bounds includes only a part of it.
In all cases of this character the paramount object is to ascertain and give effect to the intention of the parties, and this intention is to be gathered from the entire instrument. In Peck v. Mallams, 10 N. Y. 532, the Court of Appeals said: “ The general rule in regard to the construction of the description of the premises in a deed is one of the utmost liberality. The intent of the parties, if it can, by any possibility, be gathered from the language employed, will be effectuated. To this end parts of the description may be rejected, though upon the face of the deed they seem as material as the parts which are left. This only is requisite, that after subjecting the description to every modification which the actual condition of the premises may require, there must be left some substantial designation of the thing to be conveyed, so that the Court can see, looking at the property in the condition in which it was at the time of the deed, that the description can be fitted to it and was intended by the parties to relate to it.” (See also, Cholmondeley v. Clinton, 2 Jac. & W. 134; Worthington v. Hylyer, 4 Mass. 196; 3 Wash. on Real Prop., p. 333 et seq.; Stanley v. Green, 12 Cal. 148; Piper v. True, 36 id. 606; Haley v. Amestoy, 44 id. 132.) In the last case cited the deed first described the premises by name and then gave a particular description by metes and bounds, which only included a part of the land embraced in the first description; and this Court, taking in view all of the facts and circumstances surrounding the execution of the deed, held that “ the particular description was not intended to be used in the sense of restriction, but in the sense of reiteration or affirmation, and that in so far as it was erroneous or defective it must be rejected as false.”
It is not claimed that the testimony of Dominguez was admissible for the purpose, of varying or contradicting. the terms of the written conveyance, and it is very clear that it could not be received for that purpose. It was admissible, however, for the purpose of showing the true consideration of the deeds from Aguirre to Olvera and Olvera to Mrs. Aguirre, and also for the purpose of placing the Court in the [38]position of the parties in order that it might rightly interpret the language employed. In his work on Evidence, Mr. Greenleaf, after saying that there is no material difference of principle in the rules of interpretation between wills and contracts, except what naturally arises from the different circumstances of the parties, declares: “The object, in both cases, is the same, namely, to discover the intention. Arid, to do this, the Court may, in either case, put themselves in the place of the party, and then see how the terms of the instrument affect the property or subject-matter. With this view, evidence must be admissible of all the circumstances surrounding the author of the instrument. * * * It is only in this mode that parol evidence is admissible (as'is sometimes, but not very accurately said) to explain written instruments, namely, by showing the situation of the party in all his relations to persons and things around him, or, as elsewhere expressed, by proof of the surrounding circumstances. Thus, if the language of the instrument is applicable to several persons, to several parcels of land, * * * to several monuments or boundaries, * * * or the terms be vague and general, or have divers meanings * * ®; in all these and the like cases, parol evidence is admissible of any extrinsic circumstance tending to show what person or persons, or what things, were intended by the party, or to ascertain his meaning in any other respect; and this, without any infringement of the rule, which, as we have seen, only excludes parol evidence of other language, declaring his meaning, than that which is contained in the instrument itself.” (1 Greenl. on Ev., §§ 287, 288; id., § 169.)
In the case at bar the deed itself contains several descriptive calls, all of which, except one, include the premises in controversy; and the main question is, which of those contradictory calls expresses the intention of the grantor. Applying the principles to which allusion has been made, and reading the deed in the light of the circumstances surrounding its execution, I think it manifest that tlie intention was to convey to Mrs. Aguirre all of the land embraced within what (for convenience of reference) has been designated as the red-line tract. This construction is strengthened by the further circumstance, that after the execution of the deed, no claim ap[39]pears to have been asserted by Aguirre to any part of the premises during the remainder of his life, nor, after his death, by any of his heirs until May, 1877—a period of more than twenty years—when the supposed “ flaw in the title” was discovered by the guardian of the then minor children, and years after all of the interest of Mrs. Aguirre had passed into the hands of a large number of people, who bought at various times distinct parcels of the tract upon the supposition that by the deed she acquired the entire tract, and who, since the dates of their respective purchases, have held adverse possession of the whole of their respective parcels, and have made their homes there.
The deed in question having, in my opinion, conveyed the entire tract embraced within the red lines, it results that the plaintiffs have no title to any part of it, and that they could not therefore possibly recover in the action. That being the case, it is not necessary to consider the instructions given by the Court below to the jury, since, even if erroneous, they they could not have prejudiced the plaintiffs. (Green v. Ophir C. S. & G. M. Co., 45 Cal. 527; Larco v. Casanueva, 30 id. 561; Hebbard v. Jefferson G. & S. M. Co., 33 id. 290.)
For these reasons the judgment and order of the Court below should, in my opinion, be affirmed. I therefore dissent from the judgment here.
Myrick, J., concurred with Mr. Justice Ross.