delivered the opinion of the court,
We are of opinion that the learned court below was in error in the interpretation of the agreement in question in this ease. Had its meaning been dependent upon extrinsic facts requiring the verdict of a jury to determine it, the construction contended for by the defendant should have prevailed, because the jury after a very careful charge found in the defendant’s favor. Upon that aspect of the case the merits of the controvers3 must be considered as having been determined against the plaintiff and against his theory that he was entitled to have more timber than was to be found on the land sold. But the learned court holding, after the verdict, that a mistake was made in submitting the caso to the jury at all, struck off the conditional part of the verdict and entered an absolute judgment for the plaintiff. We do not think this was in the power of the court, the action being ejectment and no question of law reserved, but we differ witli the court upon a more radical question, and prefer to dispose of the cause upon our view of that subject. The agreement upon which the suit was founded stipulated for the sale of “the one undivided half of grist mill situated on Morgan run Boggs, with the 200 acres of land connected therewith, for the sum of twelve hundred dollars,” etc. Undoubtedly the subject of the sale was “tlie undivided half” of the mill and 200 acres. This was all the plaintiff sold and it was, all the defendant bought. No other land could pass to the defendant under this agreement than *28the undivided half of the premises described. Had the agreement stopped there it could not have been questioned that the defendant took only the undivided half of the mill and land, and of course he could only take the timber that stood upon that half. Certainly the defendant would have had no right to take the timber belonging to the other half owner, Smith, under this contract with Thompson. When, therefore, the agreement further provided that Ebert, the purchaser, was “ to let said Thompson have all the timber on said land,” he surely did not agree “to let” Thompson have the timber on Smith’s half of the land. The words “to let” clearly mean “ to allow,” “to permit” that is, that Eberts, the purchaser, would permit Thompson to have the timber upon the land sold because that was something which Eberts could permit. No mere permission of his could possibly authorize Thompson to take the timber from Smith’s half of the land, and there are no words in the agreement by which Eberts contracts that he will buy the timber on Smith’s half so that Thompson may take that also. The expression “ said land ” necessarily refers to the subject matter previously described which was the undivided half of certain land, and according to our view of the instrument it means that Thompson the vendor, thereby had permission from Eberts the vendee, to take from the land sold the timber growing upon it down to a certain size. This was all that Eberts could give, and therefore it was all that Thompson could take under this contract. If it was intended that the timber that was owned by Smith should be included so as to pass to Thompson, the instrument should, and necessarily would, have contained some words expressive of the further obligation which then would have rested upon Eberts to acquire the right to Smith’s timber and to give that also to Thompson. In the absence of any words expressing such a meaning we find it quite impossible to impute such an intent to the parties or to place such a construction upon the language actually employed. If Thompson had himself been the sole owner of the entire property and had made the identical agreement with Eberts which he did make, it would seem absurd to contend that the timber upon the unsold half of the land was divested from Thompson and vested in Eberts by anything contained in this paper. If it did have such a meaning Eberts would yet have to acquire from Thompson the right to the remaining half of the timber for no other purpose than to give it back to him. If it did not have such a meaning as to Thompson’s ownership, it could not have as to Smith’s. While parties might make so remarkable a contract as that it can not be done by implication.
These views dispose of the whole case and render unneces*29sary any discussion of the various matters outside the mere words of the instrument as evincive of the intention of the parties. The question of interest becomes unimportant in view of the verdict of the jury which cannot be changed.
The judgment of the court below is reversed and it appearing by the record that after verdict and before the time fixed for the payment of the purchase money the same, together with interest thereon, in all $363, was paid into court by the defendant, judgment is now entered in favor of the defendant, with leave to •the plaintiff to take’the said sum of $363 out of court upon his filing with the prothonotary a deed in fee simple, to be approved by the court, to the defendant for the premises described in the agreement of November 9th, 1880.