Bill in chancery by the commissioners and agent of Lagrange county against Joshua T. Hobbs and others for a specific performance. Decree for the plaintiffs below.
The following facts are gathered from the bill, answers, replications, and exhibits:
On the 8th day of July, 1840, the obligors thereto executed the following bond:
“ Know all men by these presents, that we, Joshua T. Hobbs, William McConnell, and Reuben J. Dawson, are held and firmly bound unto Philo Taylor and Palmer Grannis, county commissioners of the county of Lagrange, in the sum of 8,000 dollars,” &c.
“ The condition of the above bond is such that, whereas John Jackson, Marshall S. Wines, Thomas Lewis, and Joel Bristol, were appointed commissioners by the legislature of Indiana, at the last session thereof, to re-locate the seat of justice of Lagrange county, Indiana, and in making said re-location were authorized and required to take into consideration donations,” &c.; “ and whereas, in consideration of the following donation made to said county *184by said Hobbs, McConnell, and Dawson, said commissioners have re-located the seat of justice of said county in the village of Lagrange,” &c.; “ now, if the said Hobbs, McConnell, and Dawson shall, within one year from the date hereof, convey to said county,” &c., “ the equal undivided one-third part of said village plat,” &c., “ and shall also donate for the use of said county 20 acres of land to be laid off in out-lots on the west side of said village plat, then,” &c.
On the 20th day of February, 1841, said obligors executed to Aaron Thompson and John T. Clark, commissioners duly appointed to superintend the erection of public buildings in said county, &c., a deed for the various pieces of property specified in said bond, including, “ also, all that tract or parcel of land situated in said county, containing twenty acres, bounded on the south by a line drawn due west from south-west corner of the plat of the town of Lagrange aforesaid, (as now laid off and recorded,) to the line dividing ranges nine and ten east; thence by a line drawn north along the range line aforesaid, and by a line drawn from the place of beginning, north along the western boundary of said town plat, until a due east line will contain the aforesaid quantity of twenty acres,” &c. This deed was made, by mistake, to said Thompson and Clark, instead of the county agent; and, in 1845, the commissioners of Lagrange county prosecuted a bill for the correction of the deed as to parties, in which proceeding, in 1846, they obtained the desired decree.
The following deposition of John Spencer was read upon the hearing of the cause:
“ I was present when the above defendants executed the bond for the conveyance of town-lots and land as a donation to Lagrange county, in consideration of the relocation of the county seat, and the land shown to the commissioners by the defendants was the south end of a fractional tract lying on the west side of the town of Lagrange, and between that and the range line dividing ranges nine and ten; and it was well understood between said defendants and the locating commissioners, that the *18520 acre tract for out-lots was intended to be located as above, running north from the south end of said tract for quantity. There was no proposition made or spoken of by either party about locating the 20 acre tract along the whole west line of the plat of the town of Lagrange, nor was the land along the north-west side of said town-plat examined or seen by the locating commissioners to my recollection or knowledge.”
In discussing this case, the counsel for the plaintiffs in error, (the county commissioners and agent,) take this position:
“ In grants and patents, where a base-line is given on which an area of a certain number of acres is to be laid out, the whole line must be taken as the base, and you must depart from its extremities by right angles for quantity. It is absolutely necessary to adopt this rule, ut res magis valeat quam pereat; for otherwise the grant or condition is absolutely void. You cannot resort, in a case like this, to parol evidence, because there is no ambiguity, latent or otherwise.”
The case shows that the land deeded to the county by the above obligors, in an attempt to fulfill the condition of their bond, was not upon a base-line extending the whole length of the west side of the town-plat, but only about half the length of that side.
It is contended, therefore, that the condition of the bond has not been complied with; and this suit is to compel a conveyance of 20 acres, based upon a line extending the whole length of the west side of the town-plat.
The 20 acres deeded have not been reconveyed, nor is there any offer to reconvey.
Whether the rule of construction above laid down to be applied to grants of this character is without exception, and whether parol evidence may, in any case, be permitted to explain such grants, are not questions properly arising in this case. If, however, the rule is inflexible, and parol evidence cannot be given, we can easily imagine cases where great injustice would result. Take a case like the present, where land is donated “ to be laid *186off in out-lots on the west side of said village,” &c., that is, land suitable to be laid off in out-lots, &c. Now, suppose the village lies upon the bend of a broad navigable river, or at the base of an abrupt mountain of rock, which forms the boundary of half the length of said side; or, again, suppose the giver of the donation does not own the land upon the whole length of the side on which the donation lies, and that this fact is well known to all parties at the time the donation is made; in these cases, if parol evidence of the circumstances could not be given, and the base-line must extend the whole length of the town, it is plain, injustice might happen. But as to this, we decide nothing; the point not being, as we have said, in the case. It is too late to look into it in this suit; for we think the county estopped by her acceptance of the conveyance already made by the obligors to said bond. A deed was executed in 1841. That deed embraced the requisite quantity of land, and gave a plain description of its location. The county, by her proper officers, received it, and must have well understood its contents, as she procured a correction to be made in it so that it conveyed the land to the county agent for her use. There is no pretense of misrepresentation, concealment, or fraud, or misunderstanding, of any kind, about the contents of the deed, and there was an acquiescence of some years in it. All this shows, sufficiently, an acceptance by the county of the performance voluntarily made by the obligors of the condition of the bond; and, we think, under the circumstances of the case, the county cannot now go behind that acceptance.
R. Brackenridge, Jr., for the plaintiffs. J. B. Howe, for the defendants. Per Curiam. —The decree is reversed with costs. Cause remanded, &c.