I concur. It is quite true, as claimed by the appellant, that a patent issued by the United States or the state under provisions of law for the disposal of public land is conclusive as to all the antecedent acts required by law to authorize the issuing of the patent, and that the patent cannot be collaterally attacked by showing that any such acts were not complied with. The evidence here in question, however, was not offered by the defendant for the purpose of impeaching, contradicting, or varying the patent, but to aid the court in reconciling the inconsistent calls in the description of the premises conveyed, so as to arrive at the true meaning of the instrument. It is conceded that there is an error in the description, and the question is as to which one of the conflicting calls controls. The appellant contends that the call "to the Orestimba Rancho" constitutes a designation of a monument which controls in the description over the distance, course, and quantity given. The rule governing the construction of descriptive parts of a conveyance has been carried into our codes. It is declared *Page 452 that when the construction is doubtful, and there are no other sufficient circumstances to determine it, and that there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be considered by the first-mentioned particular. That when permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either lines, angles, or surfaces, the boundaries or monuments are paramount. When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map. (Code Civ. Proc., sec. 2077, subds. 1, 2, 6.) And it is further provided that for the proper construction of an instrument the circumstances under which it was made, including the situation of the subject of the instrument and all the parties to it, may also be shown, so that the judge may be placed in the position of those whose language he is to interpret. (Code Civ. Proc., sec. 1860.) The reason why monuments, as a general thing, in the determination of boundaries, control courses and distances is, that they are less liable to mistakes. But this rule is not inflexible; it ceases with the reason for it, as when the monuments referred to are not known and visible objects on the ground. Grants or conveyances generally are to be interpreted in like manner as written contracts, and should be so interpreted as to give effect to the mutual intention of the parties at the time of the contract or conveyance. The patent in this case recites that it appears by the certificate of the register of the state land office (giving the date and number), that the tracts of swamp and overflowed lands thereinafter described have been duly and properly surveyed in accordance with law, and full payment made to the state for the same, and more particularly described in the field-notes of said survey, as follows, etc., — then giving the description by courses and distances, — containing, as stated, 1,878.26 acres. But to carry the western boundary to the westerly line of the township and the easterly line of the Orestimba Rancho would require twenty chains instead of six and a half, and would embrace one hundred and seventy one acres more than stated in the patent. Parties to a conveyance *Page 453 are supposed to be on the land or acquainted with the land conveyed, and to have noticed permanent objects constituting the boundary referred to in the description of the property conveyed. Judge Sanderson, in Walsh v. Hill, 38 Cal. 487, speaking on this question of the descriptive parts in a conveyance, says: "In conclusion, upon this branch of the case, we deem it proper to say, that in the construction of written instruments we have never derived much aid from the technical rules of the books. The only rule of much value — one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books — is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by its four corners, read it." It does not appear that there is any monument or object on the ground at the west line of the township and the east line of the Orestimba Rancho, as finally located, but that the same is an imaginary line. It is different, therefore, from a case where there is a permanent object or monument on the ground, like a river, or stream, or point of rocks, or known tree, or anything of the kind. There is no reason, therefore, why the call "to the Orestimba Rancho" should control all the other parts of the description inconsistent with it, — to wit, courses, distances, and quantity of land conveyed. In Pico v. Coleman, 47 Cal. 65, it is said: "In construing a deed, all its parts must be consulted, and it must be read in the light of surrounding circumstances, and the intention of the parties arrived at in this way." In Serrano v.Rawson, 47 Cal. 55, the court says: "In determining the location, the plat of the survey, which is part of the patent, is often entitled to as much, and perhaps to more, weight than the courses and distances. In all cases of conflicting description, the object of the court is to ascertain the intention of the parties, and the entire description contained in the instrument should be resorted to for the purpose of ascertaining the intention. Courts will give effect to every part of the description, if possible; but if this cannot be done, they reject that which is repugnant to the general intent of the instrument." And it is also the rule in the interpretation of contracts or conveyances that where uncertainty exists in the contract as between a public officer or *Page 454 body, as such, and a private party, it is presumed all uncertainty was caused by the private party. (Civ. Code, sec.1654) In this case it cannot be presumed that the state, or its officers, intended to convey by patent to the plaintiff one hundred and seventy-one acres more than he paid for, and any mistake in the description which would result in that is presumed to have been caused by the grantee, and not so intended by the grantor. The plaintiff applied to purchase "a certain tract of swamp and overflowed land in Merced County, lying and situate on the left bank of the San Joaquin River, being the lands surveyed for William Wilson, R.M. Wilson, Noah Stitts, N.B. Eldred, and William Miles, in township 7 south, range 10 east, base and meridian of Mount Diablo." In the field-notes of the survey for William Wilson, the tract of land bordering on the premises in controversy, it is stated by the surveyor that there was "a well preserved cor. of Orestimba Rancho found 40 chains north, 20 minutes east of the S.E. cor. of the Rancho." The plat of the survey in question shows a mound at the corner mentioned, which is made the southwest corner of the land so surveyed, and a line from this to the San Joaquin River, as indicated on said map, leaves a strip of land between that and the township line (being the land in controversy), which is marked on said map as part of the Orestimba Rancho. It is quite reasonable to suppose, therefore, that the designation "to the Orestimba Rancho" in the patent was intended to refer to this line from the mound to the river, as indicated by the survey for Wilson. This would reconcile the various calls in the description of the land conveyed. In view of the discrepancy in question, it was entirely proper to admit in evidence the application of the plaintiff to purchase the land, as well as the surveys of the parties from whom he purchased, as they would enable the court to determine which of the calls was erroneous.
McFarland, J., and Henshaw, J., dissented, and adhered to the opinion delivered in Department.
The following is the opinion of Department Two rendered on the 27th of November, 1901, and adhered to by Justices Henshaw and McFarland: — *Page 455