1 Worthington v. Hylyer, 4 Mass. 205.
2 Door v. Geary, 1 Vee. 255; Day v. Trig, 1 P. Wms. 286; Wigrara on Interp. of Wills, p. 54, §67.
3 Curtiss v. Howell, 39 N. Y. 211 (1868). And when the meaning of an instrument is clear, the erroneous construction which the parties to it have themselves put upon it, will not control its effect. Railroad Company v. Trimble, 10 Wall. 367 (1870). The practical interpretation which parties interested have by their conduct given to a written instrument, in cases of an ancient grant of a large body of land asked for and granted by general description, is always admitted as among the very best tests of the intention of the instrument. Cavazos v. Trevino, 6 Wall. 773 (1867).
4 Parkhurst v. Smith, Willes, 332; post, ch. xxii. See also note to §781.
§ 778. Again, the general rule in the interpretation of descriptive words used in deeds and grants and contracts is, that courses, distances, admeasurements, and ideal lines, must yield to known and fixed monuments upon the ground itself, referred to in such instrument, whether they be natural or artificial. And this rule obtains upon the clear ground that there is a much greater liability to error in statements of courses and distances which are the result of reckoning or survey, than in describing monuments, which are fixed facts. Thus, where in a grant of land the land was described as " beginning on the north line of the million acres, at a yellow birch-tree, six miles east from the south-east corner,"the birch-tree being marked as a monument in the original survey of the land, and it appeared that the birch-tree did not, in fact, stand in the north line, as supposed, but was so situated that a gore of land was left between it and the said north line; it was held that the birch-tree, and not the north line, was to be taken as the boundary of the land granted.2
1 Collis v. Emett, 1 H. Bl. 313; Gibson v. Minet, 1 H. Bl. 569.
2 Cleaveland v. Smith, 2 Story, 279. In this case, Mr. Justice Story said: "It is with a view to ascertain the intention of the parties to deeds and grants, that courts of law, for the purpose of founding just presumptions of the intention, h^e adopted certain rules of interpretation, not as artificial rules, built upon mere theory, but as the true results of human experience. When, therefore, they have held it to be a general rule, in the interpretation of the descriptive words of deeds and grants, that courses, and distances, and admeasurements, and ideal lines, should yield to known and fixed monuments, natural or artificial, upon the ground itself, they have but adopted the result of the common sense of mankind, because sources of mistake may more easily arise from the former than from the latter; and it is more likely that men may commit an error in courses, or distances, or admeasurements, or in references to ideal lines, such as those of surveys, than in monuments, and fixed and stationary objects, visible on the very land; and that in purchases and sales and bounties, the latter, as the best ordinary means of information, as well as of exclusive possession, are uppermost in their minds, and regulate their acts and intentions. Hence, a known spring, referred to as the corner of a boundary line, has always been deemed and the ship was stranded in the course of the voyage; the underwriters were held to be liable for an average loss arising from perils of the seas, though no part of the loss arose from the act of stranding; and Lord Kenyon said: "Without inquiring into the reasons for introducing this exception, on the grammatical construction of it I have no doubt." "If it had been intended that the underwriters should only be answerable for the damage that arises in consequence of stranding, a small variation of expression would have removed all difficulty; they would have said, 'unless for losses arising from stranding.' "1 The maxim applicable to cases coming within this class, is, " Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba expressa fienda est. Divinatio non inter-pretatio est quae omnino recedit a literd." 2
§ 779. When the intent of the parties to a contract is manifestly paramount to the manner chosen to affect it, if it cannot operate in the mode intended, it may operate in such mode as will legally effect the intention. The difficulty which this rule is intended to obviate usually occurs in cases where some legal impediment prevents the contract from taking effect according to the particular mode contemplated by the parties. Thus, where a grant, of land, by bargain and sale, was made by a father to a son,"to have and to hold after death of the grantor; "although it could not operate as a bargain and sale, because a freehold cannot, at common law, be made to commence in futuro, yet it was construed as a covenant of the father to stand seised to his own use during his life, and after his death to the use of his grantee and his heirs; and by this means the evident intention of the father to give his son a full title, after his own decease, was effected.1 So, also, deeds intended to operate as a lease and release, and which are void in that form, may be construed as a covenant to stand seised to uses, and be thereby rendered operative.2 a more certain reference, in the understanding of the parties, than the ideal line of a survey of the land of another person, supposed to terminate at the same place. If they differ in point of location, the uniform rule is, that the spring governs as to the corner boundary, and not the survey. For the like reason, the plan of a survey, if it does not coincide with the actual monuments on the land, yields to the latter in point of certainty, and proof of intention. The same ground is equally true as to courses and distances from monument to monument. If they differ, the monuments govern, and not the courses or distances; or, in other words, measurements yield to monuments, because they are more open to mistake, and less carefully observed, or significantly marked." Newsom v. Pryor, 7 Wheat. 7; M'lver v. Walker, 9 Cranch, 173; Boardman v. Reed, 6 Peters, 328; Doe v. Galloway, 5 B. & Ad. 43; Frost v. Spaulding, 19 Pick. 445; Wendell v. The People, 8 Wend. 190; Conn v. Penn, Peters, C. C. 496; Magoun v. Lapham, 21 Pick. 135; Esmond v. Tarbox, 7 Greenl. 61; Machias ». Whitney, 16 Me. 343.