This wаs an action of ejectment to recover the northeast quarter of the southeast quarter of section thirty-six, township forty-eight, rаnge twenty-six, in Johnson county.
Both parties claim title from Harriet C. Horne, wife of Amos Horne ; she owned the property as her general, not separate, estate. The history of the title is as follows : In 1874, Horne and wife made a mortgage on this and other land, in all one hundred and sixty acres, to secure a debt owing to Johnson county; thereafter, and in 1879, they made a deed of trust on the one hundred and sixty aсres to secure a debt to Jacob Taggart; Taggart, in order to protect his deed of trust, paid the prior incumbrances in favоr of the county; Horne then paid the debt secured by the Taggart deed of trust, but refused to pay him the amount he had paid in discharge of the county debt. While matters stood in this shape, Horne and wife, by a written contract, sold the one hundred and sixty acres to the defendant, James D. Dyer, for the agreed consideration of twenty-four hundred dollars ; and on the ninth of April, 1880, they made a warranty deed to Dyer, intending thеreby to
After all this, Dyer concluded there was a mistake in his deed, as to the description of the forty acres now in suit. Hе requested the Hornes to execute a deed of correction, but instead of doing this they made a quitclaim deed of the forty acres to Wolfe, the present plaintiff, dated in 1884. The defendant in this suit, by his answer, admits possession, and denies the other allegations of thе petition. Por a further defence he sets up a mistake by the scrivener in preparing the deed from the Hornes to him, as to the dеscription of the forty acres. He then sets out at length the subrogation decree, and claims that by it title in him is established. The trial court seems to have regarded that decree as fixing the status of the title, and as constituting a complete defence to this suit; and in .this it erred.
In that decree the court did, among other things, find that the Hornes had sold and conveyed the one hundred and sixty acres to defendant. It mаy be conceded that the decree was binding, as between the parties to that suit, and those claiming under them, for all the purposes for which it was rendered. But the decree did not establish title in any one. It left the legal title where the pleadings showed the partiеs had put it. It only subjected the property to the payment of the
Though the court may have errea on ,tne matter before сonsidered, still, if the judgment is for the right party, it ought not to be reversed. We feel bound to say, on the undisputed facts of this case, that the deеd to the defendant conveys the forty acres in suit. The description in the deed is as follows : “The following decribed tract or parcel of land,” etc. : “The northeast quarter and the west half of the southeast quarter and the east half of the east half of the southwеst quarter of section thirty-six, township forty-eight, range twenty-six.” The description, as it appears in the deed,, is without punctuation. To exclude the land in suit, we must understand the words “the northeast quarter” as meaning the northeast quarter of section thirty-six ;• but if we read the description so that the conjunction will connect the words “the northeast quarter” and’ “the west half,” and let both sets of words be modified by “of the southeast quarter,” then both parcels are-located in the southeast quarter of the section, and the-defendant gets in all one hundred and sixty acres, which includes the land in suit. The other reading gives him two hundred and eighty acres, one hundred and sixty of which was owned by Neff, and not by Mrs. Horne. If the dеed called for quantity,- namely, one-hundred and sixty acres, there could be no difficulty. While it does not do this, it contains that which is equivalent thereto. It goes on to say: “Reserving possession of the hereinbefore described premises until
The deed must be construed as a whole, giving due consideration to every part and portion of it, words of reservation as well as of grant. While parol evidence cannot be received to prove that the parties intended something different from that which the language of thе deed expresses, yet if the language used in the description is uncertain and doubtful, the practical construction given to the deed by the subsequent acts of the parties may be shown by parol evidence. Devlin on Deeds, sec. 1042. So in such cases it is compеtent to show the actual situation and condition of the land. Salisbury v. Andrews,
Something is said in respect of notice to plaintiff. He was bound to read thе deed in the light of such facts as are before indicated, for the deed itself would lead him to look to them. The judgment is, therefore, affirmed.