delivered the opinion of the Court—Terry, C. J., concurring.
This is an action of ejectment to recover the possession of certain premises situated in the County of Napa. The plaintiff and the defendants claim under Nicholas Higuera, to whom a grant of a tract of land, subsequently entitled “ Entre Napa,” was made in May, 1836, by the then Governor of Upper California. It is admitted that Higuera was the owner in fee of the tract on the thirteenth of November, 1847. The premises in controversy are a part of this tract, and are described as lying between the Napa river and the creek emptying into it, known as the Arroyo de las Cameros, south of a line commencing at a point where the old road leading from Napa to Sonoma crosses the Arroyo, and running to the southern point of the hills on the east, and thence to Napa river. The plaintiff traces his title through a deed from Higuera and wife to Matthew Fallon, executed November 13th, 1847; a deed from Fallon and wife to Julius Martin, executed July *1601st, 1850, and a deed from the Sheriff of Napa county, executed March 21st, 1857, upon a sale made under an execution issued upon a judgment recovered against' Martin. The judgment became a lien upon the premises, December 9th, 1854, and by the deed the estate and interest which Martin possessed on that day, passed to the plaintiff. The subsequent conveyances of Martin and Fallon to the plaintiff, dated respectively May 25th, 1856, and June 15th, 1857, may be dismissed from notice, as they do not add to his title.
The defendants claim through a deed from Higuera and wife to Ramon de la Riva, executed February 7th, 1852, and a deed from Riva to Encarnación Cacho, and Marta Frias, daughters of Higuera, executed March 28th, 1852. The daughters partitioned the property between themselves, October 13th, 1852; after which, on the eighth of November, 1852, Encarnación conveyed her interest to the defendant, Green, and on the twenty-eighth of June, 1854, Green conveyed a part of the land claimed by him under deed from Encarnación, to the defendants, McKune, Crocker and Robinson. The other defendants are tenants of either Frias, or Green, or McKune, Crocker and Robinson. The will of Higuera may be passed over in the consideration of the case, as it cannot affect the claim of the defendants. It was made after the sale to Fallon; and, if this were otherwise, it could only take effect upon the death of the testator, and operate upon property which he then possessed.
The principal question presented for consideration relates to the description of the premises contained in the deed of November 13th, 1847, to Fallon, which the counsel of appellants insists is void for uncertainty. It reads as follows : “A certain quantity of land, lying, being and situate in the District of Sonoma, and territory of Upper California, in the valley of Napa, containing, more or less, one square mile of land, in the place known as the Rincon de los Cameros, commencing at the wagon road and ending at the pointof the hill on the east.”
It appears that the term Rincon de los Cameros was used to designate generally the land lying between Napa river on the one side, and the Arroyo on the other. The two streams meet at an angle, forming the two sides of a triangle ; and some distance above their junction, the old road leading from Napa to Sonoma crosses the Arroyo. It *161further appears, that previous to the execution of the conveyance to Fallon, and pending a proposition of Higuera to sell the Rincon, the parties went over the ground in company, Fallon being at the time ignorant of its location; and there, after its extent and upper line had been pointed out, the purchase was concluded, with the clear understanding that it was to embrace the entire “ pocket,” as it is sometimes termed in the evidence, from the line down. It also appears that on the day following, the parties, including the wife of Higuera, applied to the Alcalde of Sonoma to draw the conveyance ; that Higuera desired it to be written in Spanish, and, as the Alcalde was ignorant of the language, he employed a person who understood it, for that purpose. The Alcalde then dictated the deed, from such information as was given to him by Higuera. When they came to the mention of quantity, neither party could state the exact amount. They called it a mile square, more or less, but with the understanding that it was to include the entire tract of the Rincon.
In addition to this, the record discloses repeated declarations of Higuera to different parties, as to his sale of the premises, and the position of the upper line ; in 1849, to John Walker, Avho was desirous of purchasing, and had a copy of the deed to Fallon, and for whom Higuera made a sketch or plot of the land ; in 1850, to Martin, who held at the time a power of attorney from Fallon, to sell, and who himself shortly afterwards became the purchaser, and with whom Higuera rode over the land, pointing out its boundaries ; and to Joseph Walker, who was employed to have a survey made of the premises for Martin, after his purchase, and to whom Higuera pointed out the land sold to Fallon, and the commencement of its upper line.
If we now look at the description of the premises in the deed to Fallon in the light of these circumstances, the uncertainty, which is the subject of objection, disappears. Rincon de los Cameros designates the land embraced between the streams forming, as we have seen, two sides of a triangle, and the line commencing on the road and drawn to the point of the hills on the east, sufficiently indicates the third side. The description is evidently intended to embrace land in the Rincon below the specified line, and is to he construed as if it read, “A certain quantity of land situated within the Rincon, commencing *162at a line running from the wagon road to the point of the hills on the east, be the same one square mile, more or less.”
That the evidence of the circumstances under which the deed was executed is admissible, does not admit of a question. These circumstances place the Court in the position of the parties, and enable it to interpret intelligently the language used by them. It is not to contradict or vary the terms of the instrument, that the evidence is received, but to apply them to the subject matter. For this purpose, extrinsic evidence must be admissible in the interpretation of every instrument; and the law will not declare the instrument void for uncertainty, until it has been examined with all the light which cotemporaneous facts may furnish. If these render the intention clear, and the words of the instrument are, by fair rendering, susceptible of a construction to uphold such intention, then they will be so construed, and the instrument enforced. “ If the meaning of the instrument, by itself,” says Parsons, “is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony(of the circumstances under which the instrument was made) “ and this intention will be taken as the meaning of the parties expressed in the instrument, if it be a meaning which may be distinctly derived from a fair and rational interpretation of the words actually used. But if it be incompatible with such interpretation, the instrument will then be void for uncertainty or incurable inaccuracy.” (On Contracts, 2 vol., 78) “ For the purpose of applying the instrument,” says Baron Parke in Shore v. Wilson, (9 Cl. & Fin. 556) “ to the facts, and determining what passes by it, and who takes an interest under it, a second description of evidence is admissible, viz., every material fact that will enable the Court to identify the person or thing mentioned in the instrument, and to place the Court, whose province it is to declare the meaning of the words of the instrument, as near as may be in the situation of the parties to it. See also Hasbrook v. Paddock, 6 Barb. 635 ; Hildebrand v. Fogle, 20 Ohio, 157; 1 Greenleaf Ev., sec. 286 ; Cowen & Hill’s Notes to Phillips, Part II, notes 263 and 269, and authorities there cited.
The declarations of Higuera to Fallon, made at the time of the sale, were admissible to show the location of the Rincon de los Came*163ros, and to identify the tract sold ; and his subsequent declarations to the Walkers and Martin, were admissible against himself as the owner of adjoining property on the question of boundary. It is to be observed that at the time these subsequent declarations were made, Higuera was the owner of the entire tract of Entre Napa, excepting that previously conveyed to Fallon, and these declarations show the position of the dividing line between the land retained by himself and that which had passed to Fallon. So far as the tract south of the line commencing at the road is concerned, they were against his title.
That such declarations of the grantor are admissible not only as against himself, but against parties claiming under him, is a familiar principle. The subsequent claimants are considered as standing in his place, and as having taken the title cum onere, subject to the same charges and restrictions which attached to it in his hands. It matters not whether the declarations relate to the limits of the party’s own premises, or the extent of his neighbor’s, or to the boundary line between them, or to the nature of the title he asserts. If their purport is to restrict his own premises or lessen his own title, they are admissible. Cowen & Hill’s Notes to Phillips, Part II, note 194, and cases there cited; 1 Greenl. Ev., sec. 189.
Aside from this, the declarations to Martin evidently controlled his conduct in making the purchase from Fallon, which followed at an interval of only a few days, and are effectual by way of estoppel against the assertion of any interest by Higuera and his vendees in the premises in controversy, in opposition to the title of Martin and those claiming under him. If we add the conduct of Higuera when the survey was made by Martin after his purchase, in pointing out the starting point, and indicating the line to be followed in the survey, all question as to the extent of the premises would seem to be conclusively set at rest. It would, we think, be difficult to find a case parallel to this in the clear and distinct and repeated recognitions, in a variety of forms, by the grantor, of the extent, location and boundaries of land conveyed by him, where the description was not more specific than the one contained in his deed.
The words “ containing more or less, one square mile of land,” are merely descriptive of the premises, and not words of limitation upon *164the quantity conveyed. This is the construction placed upon the adjudged cases upon the statement of quantity accompanying a description of premises by metes and bounds, or by a designation of number or place. Thus in Jackson v. Defendorf, (1 Caines, 493) the deed purported to convey lot number two, in a certain patent on the south side of the Mohawk river, referring to a map for boundaries, containing two hundred acres. Upon a survey, the lot was found to contain more than the designated quantity, and the question presented was whether the whole passed. The Court said, “ the intent was to convey the whole lot. It referred to the map. Where the quantity of acres is mentioned, it is only a description of the lot, according to the common acceptation.” In Jackson v. Moore, (6 Cowen, 706) the conveyance purported to convey two tracts of land in the County of Ontario, “ being township No. 3, in the 5th range ; also, No. 4 in the 6th range ; to be six miles square, and containing twenty-three thous- and and forty acres each, and no more ; ” but as these tracts were in fact six by eight miles in size, the Court held that the whole passed. Sunderland, J., in delivering the opinion said: “ It is perfectly settled, that when a piece of land is conveyed by metes and bounds, or any other certain description, all included within those bounds, or that description, will pass, whether it be more or less than the quantity stated in the deed. And when the quantity is mentioned in addition to a description of the boundaries or other certain designation of the land, without an express- covenant that it contains that quantity, the whole is considered as mere description. The quantity being the least certain part of the description, must yield to the boundaries or number, if they do not agree. (Jackson v. Barringer, 15 John. 471; Powell v. Clark, 5 Mass. Rep. 355.) If a man lease another the meadows in D and S, containing ten acres, and they, in truth, contain twenty, all shall pass. 13 Vin. Abr. 79, ploc. 24.”
In Jackson v. McConnell, (19 Wend. 175) the deed described the premises by courses and distances, beginning at a specified point, and concluding with the words “ Containing two hundred acres, street measure, and no more” It appeared that the description contained about nine acres more than the quantity thus specified, and the Court held that the grantee was entitled to the whole.
*165In Hathaway v. Power, (6 Hill, 453) the defendant gave in evidence a deed containing the following description, viz.: “All that certain tract or parcel of land situate in township No. 11, in the third range of townships, County of Ontario, and State of New York, it being one hundred and sixty acres of land in lot No. 14, with all the hereditaments and appurtenances thereunto belonging.” It was proved on the trial that the lot contained one hundred and eighty-five acres, and the Court held the whole passed- In delivering the opinion, Beardsley, J., said : “ The embarrassment in the case has arisen from laying too great stress on the words ‘ Containing one hundred and sixty acres of land.’ It is assumed that this clause must be strictly true; and then as lot No. 16 contains one hundred and eighty-five acres, it is argued that a part of it only was intended to pass. But these words are descriptive of quantity, and nothing more, and no deed was ever held void for a mistake in this respect.
“ Undoubtedly, effect should be given, if practicable, to every part of the description. Still, if some part is inapplicable or untrue, and enough remains to show what was intended, the deed must be upheld. The false or mistaken part should be rejected, and when that happens to be a mere statement of the quantity, it will be done without the least hesitation. I understand this deed to be in effect the same as if the description had been dll the land in lot number fourteen, being one hundred and sixty acres. Such a description, although mistaken as to the quantity, would, beyond all doubt, have carried the entire lot.” See, also, Jackson v. Berringer, 25 Johns. 471; Howe et al. v. Bass, 2 Mass. 380 ; Powell v. Clark, 5 Mass. 355 ; Smith v. Hodge, 2 N. H. 303 ; Large v. Penn, 6 Seargt. & Raw. 488; Belden v. Seymour, 8 Conn. 19 ; Benedict v. Gayland, 11 Conn. 332; Brown v. Parish, 2 Dana, 6.
The counsel of the appellants do not question the correctness of the general doctrine as to the immateriality of the affirmation of quantity in conveyances, when there is other description by metes and bounds, but insist that, in the present case, the doctrine does not apply, as there are no specific boundaries given. In this his position is untenable. A designation of the tract by a particular name or number is sufficient; and if it can be rendered certain by extrinsic evidence, this *166is as good a description as one by metes and bounds. It is undoubtedly essential to the validity of a conveyance, that the thing conveyed must be described so as to be capable of identification, but it is not essential that the conveyance should itself contain such a description as to enable the identification to be made without the aid of extrinsic evidence. Castro v. Gill, 5 Cal. 42; Blake v. Doherty, 5 Wheat. 359.
The argument of counsel is based upon an erroneous construction of the language of the deed to Fallon. It does not purport to convey one square mile of land lying in the place known as “ Rincon de los Cameros,” as part thereof, but to convey the entire tract lying therein, be the same one square mile more or less. This is the construction which the plainest rules require, which does no violence to the language of the instrument, and which effectuates the intention of the parties. There is no doubt that Higuera intended to give to Fallon an effective conveyance. He received a valuable consideration for the deed. He always admitted that he intended to transfer the land within the forks of Napa river and the Arroyo—in the “ Pocket,” as some of the witnesses term it—and not a mere right to select “ one square mile more or less ” from the tract.
It would be a waste of time to comment upon the various cases cited by counsel of the appellants, in which conveyances have been held void for uncertainty of their description of the premises. They are all easily distinguishable from the case at bar, and apply to an entirely different state of facts.
The objection to the want of a seal to the conveyance to Fallon is not tenable. No seal was requisite under the civil law. Any instrument which contained the names of the parties, a designation or description of the property sold, the date of the transfer, and the price paid, was sufficient to pass the title. Pastin v. Rassette, 5 Cal. 467 ; Hayes v. Bond et al., 7 Cal. 153.
The defendants claim title from Higuera, through his deed to Riva. This deed was executed February 7,1852, and, in terms, excepts from its operation all land previously sold and conveyed. The claim of defendants is thus defective in its very origin. The land in controversy had been sold and conveyed nearly five years previously. The deed to Riva only purports to transfer his remaining interest, and its *167legal effect is precisely the same as if, in the description of the premises, it had given boundaries necessarily excluding the land previously sold. Adams v. Cuddy, 13 Pick. 460. This single fact concludes the defense.
The deeds from Riva to the daughters of Higuera contain a similar exception. The defendants had notice of that exception, for these deeds were on record; and even if the defendants had never seen or heard of the conveyance to Fallon, they could only have taken the remaining interest of Higuera. Whenever that conveyance appeared, it would enable the defendants to ascertain and fix the limits of the remaining interest, which, alone, they ever took.
But even had the deed to Riva, and by him to the daughters, contained no exception in terms, neither they, or the other parties claiming through them, could have held the premises against the plaintiff. Riva was not a purchaser. He paid nothing for the conveyance. This he states himself. He says that he took the conveyance under a paroi trust, for the benefit of the daughters. The conveyances to them were executed in the performance of this trust, and upon no other consideration. The partition deeds between the daughters placed their title in no better position. The legal operation of the several conveyances was to effect a gift to the daughters from Higuera of the separate parcels held by them. This disposes of the case so far as Marta Frias is concerned.
The defendant Green is in no better position, for he purchased of Encarnación, with actual notice of Martin’s claim. Of this there was sufficient evidence to go to the jury, and the fact is involved in their finding.
The defendants, McKune, Robinson and Crocker, are not entitled to protection as purchasers for value without notice. The deed to them recites only a nominal consideration of ten dollars, and no proof of any other consideration was given or offered. McKune was Law Agent-of the United States at the time the claim of Martin for the land in controversy was pending before the Land Commission, and, as such officer, he was present at the taking of the deposition of Walker in relation to the same, and cross-examined the witness on the subject. It would, indeed, be unjust to charge McKune with notice of all pro*168ceedings, which his duties as an officer required him to take general charge of; but it is otherwise in relation to matters to which his attention was particularly called, and in which he directly and personally participated. The deed was drawn by him; and though his law partners, Crocker and Robinson, do not appear to have known of its execution until long afterwards, they must hold their interest subject to the same rights of third parties. In taking the conveyance in the name of his associates, he must be considered as having acted as their agent, and notice to him was equally notice to them. Story’s Equity, secs. 408, 409. It would, indeed, be singular, if the legal effect of notice could be obviated by so easy a subterfuge as the insertion of the names of other parties in the conveyance.
We do not perceive any error either in the refusal of the instructions requested, or in those given which operated to the prejudice of the defendants. Taken together they were as favorable to the defense as the facts justified.
Judgment affirmed.