It must be borne in mind, during all this consideration, that said fractional piece of land is the point of controversy — the only land in dispute — in this case. The allegations of the complaint respecting the acquisition and possession of lots 17, 18, 19, and 20, however material, are facts environing the real point of controversy. It will be observed by reading those allegations of the complaint contained in paragraphs 1 to 6 of the above statement that plaintiff alleges the acquisition of lots 20,18, and 19, particularly alleging the boundaries of each lot, and averring that lot 20 is bounded on the south by lot 19, and, in describing lot 19, alleging that it was bounded on the north by lot 20. According to these allegations, taken in the ordinary meaning of terms, said two lots are alleged to directly adjoin one another, and there would be no room for a fraction between them. It is next alleged (paragraph 6 of the above statement) that in truth and reality said lots comprise a frontage on Main street of 161 feet, running back to, etc., “according to the established and recognized *260boundaries of said lots. By this it is evidently intended that said lots, as described, “according to the original, established, and recognized boundaries,” include said fraction, for it will be noticed, by referring to the particular allegations as to the frontage of each described lot on Main street, said lots 17 to 20 inclusive, comprise a frontage on Main street of 137 feet, not including the fraction; but, including said fraction of 21.05 feet, such frontage, according to the specific allegations of the complaint, amounts to 158.05 feet on Main street. So that by the allegation “ that in truth and reality said lots,” etc., “ comprised 161 feet frontage on Main street,” it must be intended to include said fraction as part of said lots; that is, that said lots, according to the numbers as platted, constitute 161 feet frontage, and necessarily include the fraction. But the next allegation (paragraph 7 of the statement above) sets forth that, by measurement, according to the “number of feet designated in the deeds therefor,” said lots do not include said fraction of 21.05 feet, but that “according to said lots and boundaries thereof, according to the calls of said deeds from said Truett, probate judge, no excess whatever existed,” and that “ the title and possession of plaintiff and his predecessors in interest was acquired and obtained accordingly, and on account whereof said lots, pieces, or parcels of land, and the dimensions thereof, were governed and controlled by said boundary lines so established and recognized by plaintiff and his predecessors in interest.”
Whether it is meant by this “ that title and possession of plaintiff and his predecessors” was taken according to number of feet frontage which said deeds called for, not including the fraction, or whether “title and possession of plaintiff and his predecessors” was claimed and taken according to the other “calls of said deeds” which plaintiff alleges would include said fraction, is not clear, nor is it made any more clear by the allegation that “ on account whereof the said lots, pieces, or parcels of land, and the dimensions thereof, were governed and controlled by said boundary lines so established and recognized by plaintiff and his predecessors in interest,” because the last averment shows nothing more than that plaintiff and his predecessors contended that the boundaries were governed and controlled by lines established and recognized by them. And *261the same obscurity appears iu the allegation of the complaint found in paragraph 12, as numbered in the above statement, where it is averred that for more than five years, continuously, plaintiff and his tenants, etc., and those claiming under him, “have had said premises, and that portion thereof so deeded to and claimed by plaintiff, in actual possession, by means of substantial fences and inclosures.”
The question arises here, what “ land was so deeded to and claimed by plaintiff” in accordance with said deeds? He alleges that he was in possession and occupation of the land “so deeded.” It would seem that the deeds would have to be construed (and construed in the light of evidence showing the real facts concerning said lots and fraction, according to the original plat, and any change in position thereof, and boundaries made by the subsequent plat of 1885, alleged in plaintiff’s complaint, if any such change was made, section 632, Code of Civil Procedure), in order to ascertain what was deeded to plaintiff and his predecessors. Plaintiff himself alleges that, according to certain terms of the deeds, they did not convey said fractional piece of ground, but according to the “calls of the deeds” the fractional piece would be included.
Is the court to understand from the allegation of paragraph 12 (above statement), that “for more than five years, continuously and uninterruptedly, prior to the obtaining by defendant of the deed hereinafter mentioned, and the institution of this action, this plaintiff and his tenants, and those claiming under him, have had said premises,” including said fraction, or all of 161 feet frontage, “in actual possession, by means of substantial fences and inclosures, and the actual occupation and use thereof has been open, hostile, and notorious, and possession taken under the deeds of the predecessors in interest of plaintiff”? If that is what the pleader intended, it seems far from what he alleges, because he alleges that plaintiff, his tenants, etc., “have had said premises, and that portion so deeded to and claimed by defendant, in actual possession,” etc. The premises so deeded to plaintiff may include said fraction, or may not, according to the construction put upon the deeds; and so it may be true that plaintiff has had said lots so deeded inclosed, and held hostile and notorious adverse possession *262thereof, without holding hostile or notorious adverse possession of said fraction.
Again, in paragraph 13, as set forth in the above statement, the same peculiarities of averment are observable; that is to say, it is alleged that Hamilton, one of plaintiff’s grantors, was in possession and actual occupation of said lots 18 and 19. Now, if the pleader intends by this that the said Hamilton was in actual possession and occupation of said lots and fraction, or said lots including said fraction, why not so allege in plain terms? As we have seen, the lots, according to the number of feet frontage, or according to the “calls of said deeds,” may or may not include said fraction, this depending upon the construction of the deeds. Paragraphs 9 and 10 of plaintiff’s complaint, as numbered above, allege that said premises have been since 1874 inclosed aud “inside of the inclosure of plaintiff,” but these paragraphs do not aver adverse possession on the part of plaintiff. It is further observed that in the commencement of the complaint plaintiff alleges that the fraction in dispute lies between lots 19 and 20, whereas in paragraph 13, as numbered in the above statement, the fraction is alleged to be between lots 18 and 19.
Of course, such obscurities, and even errors and inaccuracies, might be cured by a trial, and findings of fact as a result of the trial; but, where judgment is demanded on the pleadings, it is our duty to scrutinize the allegations and denials with great care and caution.
Now, as to defendant’s answer, the first and second paragraphs, as set forth above, are in the form of denials, but, in substance, are allegations of new matter not touched upon in the complaint. These paragraphs introduce for the first time the affirmation that, by the second survey and plat of said townsite made in 1885, said lots and the bounding streets were made to occupy a different position than the same occupied according to the original plat of said townsite of 1869. The same is again affirmed by defendant in paragraph 5, as set out in the above statement, where defendant denies that as officially platted and designated prior to September 12, 1885, there was any fraction at all between lots 19 and 20, or any of said lots, “ and, on the contrary, alleges that prior to Septem*263ber 12, 1885, according to the official plat of said townsite then existing, said lots 19 and 20 were adjoining lots, and consisted of no more or less than the number of feet frontage than as shown on said plat then existing, or then expressed in the deeds of their predecessors in interest of plaintiff.” And the same propositions are again affirmed in paragraphs 6 and 7 of the answer, as shown in the above statement. By these allegations and denials, defendant appears to insist that, according to the original plat of said townsite, said lots, as numbered and conveyed, lie directly adjoining one another, with no fraction, or room for fraction, between any of them, and that according to said original plat said lots comprise no more frontage than shown on the plat, and expressed in the deeds therefor, but that by the second survey and plat of said townsite, in 1885, the position of said lots and bounding streets was so changed as that said fraction did appear by the latter plat to be between two of said lots, namely, 19 and 20. This seems to be the theory of defendant’s contention throughout this controversy, as we gather it from the allegations and denials of the answer; he insisting that plaintiff, through the calls of his deeds, both as to the boundaries and the number of feet frontage of said lots, as the same was originally platted, obtained all of the land which said deeds entitled him to.
Proceeding in the examination of defendant’s answer, it will be found that he denies the allegation of the complaint that, “ said defendant or any other persons except those claiming under plaintiff, have since 1874 been in the seisin or possession of any part of the 160 feet of the ground mentioned in the complaint as being inclosed ”; admits that the land occupied by plaintiff has been so occupied for more than five years prior to the commencement of this action, but denies that such occupation, in so far as it relates to lot 31, block 37, was open, hostile, or notorious, or was adverse, or was taken under deeds •of plaintiff’s predecessors in interest, or in any manner except in subordination to the legal title, which was during that time in the probate judge, in trust for the defendant, and none other, until December 11, 1888; denies that said lots 17 to 20 comprised 161 feet frontage on Main street, according to the original, established, and recognized boundaries thereof, as alleged in *264tlie complaint; denies that, according to an accurate measurement, said lots exceeded the number of feet designated in the .deeds from the probate judge therefor by 21.05 or any other number of feel; admits that, according to the calls of said deeds, no excess whatever existed, and admits that the title of plaintiff' and his predecessors in interest was acquired and obtained accordingly, but denies that possession was taken accordingly, and denies that the dimensions of said lots mentioned in plaintiffVcomplaint were governed or controlled by any acts of plaintiff or his predecessors in interest, or by anything other than the existing plat, showing the identical por- . tion of the earth’s surface constituting said lots by numbers . aud dimensions, as expressed in said deeds,.said plat being that originally established and known as the “Wheaton Plat,” approved January 7, 1869, of record in the office of, etc.; denies ■ that said Hamilton, on August 20,1873, or at any other time, • tendered or offered to pay the probate judge his fees and the maximum price of said fraction described by plaintiff in the complaint, because no such fraction existed between said lots, as alleged by plaintiff in his complaint, according to any plat or . survey of said townsite, and denies that a tender for an alleged thing not in existence would give rise to any right, in law or equity, in favor of said Hamilton, or his successors in interest; alleges that when the original entry of said townsite was made by the probate judge, in trust for the use aud benefit of the inhabitants thereof, defendant was, aud for a long time . theretofore had been; and for a long time, thereafter continued to be, in actual, bona fide occupation and possession of the identical piece of land in dispute in this case, which was after-wards, but not until September 12,1885, platted and designated as lot 31 in block 37 of said townsite; alleges that prior to September 12, 1885, no plat of said townsite designated or showed said piece of land, and therefore defendant was unable to apply for and enter and take conveyance of said lot to himself as beneficiary of. the trust imposed on the probate judge' by conveyance of the legal title of said lot from the United States to him; alleges that after said land in dispute was platted and designated as lot 31, block 37, by the plat approved September 12, 1885, no notice thereof was given, as *265required by section 2015 of the Compiled Statutes; alleges that from the entry of said townsite to September 12, 1885, the only plat thereof in existence was one made by A. C. Wheaton, approved January 7, 1869, the same having been made and approved prior to the entry of said townsite; denies that, through any false or fraudulent representations or statements defendant procu red a deed for said fractional piece of land from the probate judge, of date December 11, 1888, “ but, on the contrary, alleges that all statements, affidavits, and proofs made to said probate judge by the defendant and his witnesses in making application therefor were strictly true.”
In view of these denials and affirmations of the answer, and the peculiar conditions and contention shown in the pleadings, I cannot bring my mind to the conclusion, after much careful consideration, that it. is a proper case for judgment on the pleadings. The ease is not without some complications to be dealt with in proceeding to judgment, and much of the complication lies in ascertaining the exact facts which have prevailed in respect to the piece of land in controversy. The trial court proceeded upon the premise that it was admitted that plaintiff had held possession of the land in dispute, “ as alleged in his complaint.” No doubt this was justly gained from the liberality with which counsel may have admitted facts in combating the legal hypothesis that plaintiff could have held adverse possession while the legal title of said land in dispute resided in the probate judge. This hypothesis is denied in the answer, but, as a matter of fact, the answer also denies, in the disjunctive form that defendant has held “ open, hostile, or notorious, or adverse possession” of said land in controversy; and on this appeal counsel for appellant, in their brief, contend that defendant’s answer cannot be properly construed, “as the court states” that “ defendant admits that plaintiff has been an occupant of said land for the time alleged.”
It has been at least once held, and again intimated, that this court, ought not to be governed in the review of a case on appeal by observations in the opinion of the court below as to matters of fact involved. (Thorp v. Freed, 1 Mont. 651; Muller v. Buyck, 12 Mont. 376.)
However, giving full force to the observation of the trial *266court, that it was admitted jffaintiff had held possession of the premises in dispute, “ as alleged in his complaint,” we have seen, upon an examination of the complaint, that its allegations in that respect are obscure, and require a construction of the deeds in the light of evidence as to the actual facts in respect to the occupation of said fraction, in order to get exact knowledge of what was included in the alleged possession of plaintiff and his predecessors; and this inquiry is further complicated by the fact that if what defendant sets forth in paragraphs 1, 2, 5, 6, and 7 of the answer is true (and those facts are not yet denied by replication), plaintiff did not have, and could not have had, actual occupation of said fraction, by the inclosure and possession of said lots, prior to September 12, 1885, because, according to those allegations, which were not denied by replication, the fraction did not lie between any of said lots, and the taking of possession of said lots by plaintiff and his predecessors, as alleged, up to that date, according to the plat, and even according to the position of the bounding streets prior to that date, could not have included said fraction. It does not appear that defendant’s counsel abandoned that portion of the answer contained in paragraphs 1, 2, 5, 6, and 7, as numbered in the above statement, nor does it appear that they expressly abandoned any portion of the answer. Now, suppose it be assumed that the facts set out in those paragraphs are true; that is, according to the plat existing prior to 1885, and according to the boundaries, said lots directly joined one another, without any fractional piece of ground between any of them. It would then appear that up to September, 1885, plaintiff and his predecessors, having inclosed said lots according to the plat then existing, and according to the calls of the deeds, both as to the number of feet frontage, and as to the boundaries, did not include said fractional piece of ground. If, on the trial, that should be established as a fact, it would cut off all controversy as to plaintiff’s alleged possession of said land prior to 1885, and the controversy would thereby be narrowed down to the history of said fractional piece of land since the new plat was made; and, as we have just seen, defendant denies, as a matter of fact, that plaintiff has had any adverse possession of said fractional piece of land.
*267Judgment on the pleadings cannot be properly pronounced while any material issues of fact are pending. The judgment is therefore reversed, and the cause remanded.
Reversed.
Pemberton, C. J., concurs. De Witt, J.If the complaint in this case is rightly construed to the effect that there is no allegation of possession of tllepremises by the plaintiff, or if such allegation be considered made, and remains finally denied by the defendant, of course judgment on the pleadings is error. But I am inclined to the view that the difficulties and obscurities, and the want of allegation of possession, in the complaint, which are found by the learned and critical opinion of my associates, arise simply from the very peculiar facts as to the fractional lot called in the year 1885 “Lot 31.” The portion of the earth’s surface designated in that year as “Lot 31” always existed, but never before that time had that name and description been applied to it. Plaintiff could not allege that he had possession of a lot by that name prior to 1885, but he does allege “ that at said last-named date [May 7, 1874] he also became the owner and possessed of a fractional piece of ground, should the same be so regarded, situate between lots 19 and 20.” To be sure, he alleges that lots 19 and 20 were contiguous. It. seems that they were contiguous by the original survey, but by a later survey there was found to be ground between them, which was then called “Lot 31.”
As remarked above, the facts are peculiar, and I think the pleadings state these peculiar facts, and, upon a view of the whole of them, it appears to me that a liberal construction (Code Civ. Proc., § 100) of the pleadings leads to the view that possession of the laud itself is alleged, but not of the land by description as “Lot 31.” If this be correct, then concede that the answer denies the possession. Then, of course, there should not be a judgment on the pleadings. But how are we to regard the following language in the judgment: “This cause coming on to be heard, .... it was agreed that plaintiff’s occupation and possession of the premises, as alleged in his complaint, was a fact upon which the decision of the court should be based, but denied by the defendant that any adverse *268possession could be had or held by said plaintiff, as against him, under the facts set forth in the pleadings herein; also, stood upon the legal questions involved. And the court, in connection with said pleadings, taking into consideration the admission and agreement of the parties in said cause,” etc. So it appears by the judgment that plaintiff’s occupation and possession was agreed to be a fact; that is, his possession as alleged in his complaint; and, as above observed, I think the allegations of the complaint can be fairly construed as alleging the possession of the particular ground in controversy.
The matter which I quote above is not from the opinion of the court below, but from the judgment. It is not a construction of the pleadings by the court below, but is part of the judgment. I have understood all the time that this matter to which I refer was practically, and was, indeed, a stipulation made by the parties upon the hearing in the district court. The language indicates this, for the judgment says that the court, in connection with the pleadings, took into consideration the admission and agreement of the parties. If this is not the true situation, and this malter in the judgment is to be regarded simply as a construction placed by the district court upon the pdeadings, then I am of opinion that the denial of possession in the answer forbids a judgment on the pleadings. But I am quite satisfied that this particular matter in the judgment was an agreement of the parties. The judgment itself states that it was rendered upon the complaint of plaintiff, and the answer of defendant, and the motion for judgment on the pleadings, and the admission and agreement of the parties.
Upon a motion for judgment on the pleadings, I do not understand why parties may not agree before the court, and have the agreement go in the record, as it has gone into the judgment in this case, that a' certain condition of affairs is the fact, which fact partially modifies the position taken by the pleadings. Such is what the parties, in my opinion, have done in this case in the district court.' I think they intended to, and did, present to the district court a situation which may be stated as follows: “ Plaintiffs possessio pedis of the actual ground in controversy is conceded, and conceded to be, and to have been, adverse, if, under all the other facts in the case, his possession *269under those circumstances can be held, as a matter of law, to be an adverse possession.” And it was this question of law which I understand the parties, by their pleadings and admission and agreement, intended to, and did, present to the district court, and which wTas there decided. I think that this' was the theory of the case below, and the contention of the parties, and the point of view of the court. Why may not this court properly take the same point of view, and decide whether the judgment should have been rendered upon the pleadings, in connection with the admission and agreement? But as my associates consider that what I have understood to be an agreement or stipulation on the hearing was either not one, or must be disregarded, I will reserve an opinion upon the questions of law until they come to this court, on any further appeal that may be taken.