Squire v. Greer

The opinion of the court was delivered by Dunbar, J. — We do not think that the point raised in appellee’s brief, that the statement of facts was misleading, or not understood by the court, is well taken. The record shows that the statement of facts was agreed upon, and regularly signed, by the attorneys of both parties to the action, and certified to by the judge; and that the statement of facts presented here was by the order of the court substituted for the original statement of facts, which had been lost. Nor do we think that the decisions cited by appelleé, to wit, Mulkey v. McGrew, 2 Wash. T. 259 (5 Pac. Rep. 842); Breemer v. Burgess, 2 Wash. T. 290 (5 Pac. Rep. 733, 840); Swift v. Stine, 3 Wash. T. 518 (19 Pac. Rep. 63), are adverse to appellant’s right to this appeal. Those cases only go to the extent of refusing to decide questions of fact further than the records disclose the facts. While the record here does not disclose the testimony sufficient for this court to [215] determine definitely the rights of the parties, it does disclose enough to show error in the court, in that the conclusions of law were not justified by the statement of facts; and we conclude that the judgment of the court was rendered on the theory that the court could correct the government surveys, and establish government corners at points other than the points located by the government. This seems to have been the theory on which the case was tried. The presumption is, that the grantor intended to convey the lands embraced within the boundaries described according to the government survey; and the investigation of the court must be directed towards ascertaining the fact where the government corners are actually established, and not where they ought to have been established. But this presumption is by no means conclusive; and, while parol evidence will not be admitted to dispute the written contract, it may be admitted to explain it, and to show their understanding. This was a conveyance between private parties; and if the intention was to convey a certain definite piece of land, and especially if the land was actually located, that could be shown, or any circumstance tending to show the intention of the parties. In conveyances by private parties descriptions by legal subdivisions are used for convenience, and it would be a hard and unjust rule to hold parties to a conveyance of property not intended to be conveyed, though mistaken understanding of where a government line was located, especially when it can be shown that the government survey was misleading, and the lines of survey deviated from their proper and intended course; but, as we have before said, the presumption is that the deed conveys all the land within the subdivisions described according to the actual survey. The judgment is reversed, and the case is remanded to the lower court, with instructions to retry the same in accordance with this opinion. Anders, C. J., and Hoyt and Scott, JJ., concur. Stiles, J., disqualified.