89 Va. 396 | Va. | 1892
delivered the opinion of the court.
This was an action of ejectment to recover a tract of two hundred and twenty acres of land situate in Smyth county. The land, in controversy, together with the Preston Salt Works and various other tracts of land, situate in Smyth and other counties, and indeed his whole estate, real and personal, was conveyed, on the 7th of July, 1859, by Thomas L. Preston to-Robert. Gibboney, in trust for the payment of debts. In the deed of trust the salt works property is described as “ that tract or parcel of land, lying in Smyth county, on the waters of the north fork of the Holston, and commonly known as the Preston Salt Works estate.”
On the 10th of June, 1862, the trustee, Gibboney, sold the salt works to Stuart & Palmer, the grantors of the defendant company, the plaintiff in error here, describing in the written contract of sale the property sold as “ being all the estate, right, title, and interest which Thomas L. Preston conveyed to the said Gibboney by deed bearing date July 7th, 1859, in the Preston Salt Works estate, and the lands contiguous thereto ” ; and the subsequent conveyance by the substituted trustee follows this description.
It seems that the salt works proper originally contained only about three hundred acres, but was from time to time added to by the acquisition of other lands, the whole forming a compact body, if the land in controversy be.excluded. The latter was devised by Mrs. Sarah B. Preston to her three sons, of whom the said Thomas L. was one, a number of years before his deed to Gibboney, and is distant from the main body of the salt works land about three-fourths of a mile, being separated therefrom by the intervening lands of other persons.
The question, therefore, is whether the sale by Gibboney embraced the land in controversy; and that depends upon
It is a general rule.that the construction of all written instruments is a question of law for the court, and that the terms of every such instrument are to he understood in their plain, ordinary, and popular sense. 2 Pars., Cont. 492; Goddard v. Foster, 17 Wall. 123 ; Smith v. Faulkner, 12 Gray 251; Nash v. Drisco, 51 Me. 417; 1 Wait, Ac. and Def. 121. What, then, is the meaning of “ contiguous ” ? Its primary meaning, according to, all the lexicographers, is “ in actual contact” or “touching,” from, the two Latin words con and iangere. It is not synonymous with “adjacent,” although sometimes used in that sense, and vice versa. “ What is adjacent,” says Worcester, “may be separated by the intervention of some other object; what is contiguous must touch on one side.”
The word, then, having a primary meaning, must always be understood in that sense, unless the context shows it was otherwise intended; the rule being, as observed by the master of the rolls in Pigg v. Clarke, 3 Ch. Div. 672, that where a word is used that has a primary meaning (as all words have which have more than one meaning), you want a context to find another. The same point was decided in Findley v. Findley, 11 Gratt. 434, in which case one of the rules laid down by Sir James Wigram for the construction of wills was quoted with approval, and held to be equally applicable to written contracts; which rule is in these words:
“ When there is nothing in the context of a will from which it is apparent that a testator has used the words in which he has expressed himself in any other than their strict and primary sense, and when his words, so interpreted, are sensible with reference to extrinsic circumstances, it» is an inflexible .rule of construction that the words of the will shall be inter-' preted in their strict and primary sense, and in no other,*399 although they may be capable of some popular or secondary interpretation, and although'the most conclusive evidence of intention to use them in such popular or secondary sense be tendered.”
If the words used in a written contract do not express the true meaning of the parties—i. e., where there is a mutual mistake—the error may be corrected by a court of equity, upon a bill filed for that purpose. But a court of law, in construing a contract which the parties have made, cannot substitute in its place another which they may have intended to make, but which they did not make. The rule is, therefore, said to be indexible, because by the consistency and uniformity of construction which it requires justice is done not only to the parties in the particular case before the court, but it enables all persons to do justice to themselves, by making" known to them, before entering into a contract, the force and effect of the words they employ, and the precautions necessary to effectuate their intention.
Applying this rule to the present case, it is clear that the land in controversy' was not embraced in the instrument in question. There is nothing, in other words, in the context to show that when “contiguous” lands were spoken of the word was not used in its primary sense. In the deed of trust the salt 'works estate is described as a single “ tract or parcel ” of land, while-in the contract of sale the property sold is described as the Preston Salt Works and the lands contiguous thereto. But the land in controversy is not contiguous thereto, because it is separated therefrom by the lands of others; and we must take the contract as it is. We cannot, by judicial construction, in violation of the settled rules on the subject, make a contract for the parties which they have not made for themselves ; and, as the contract they did make is, by itself, intelligible and certain, when its words are taken in their common or natural sense, the meaning of those wmrds must be taken as the meaning of the parties.
Nor was there error in excluding the evidence of Sexton, deputy clerk of the county court of Smyth county, who was offered by the defendant to prove certain entries in the land-books of that county touching the land in controversy. If those entries were, in any view, admissible evidence in the case, the books themselves were the best evidence of their contents, and they were not produced. But the books were not admissible, for reasons ' already stated. There is no question of estoppel in the case.
The remaining assignments of error relied on in the argument at the bar, which chiefly relate to the action of the trial court in regard to the instructions offered by the defendant, need not be specially noticed, as what has been said sufficiently disposes of the case.
Judgment affirmed.