Suit for the partition of a tract of land lying in sections 35 and 36, in Dearborn county. The land originally belonged to one Roger Brown, and at his death, descended to his heirs, among whom were Ethan A. Brown and Hannah B. Symmes. Ethan A. Brown died, leaving heirs to whom his interest in said land descended, one of which heirs was Hannah B. Symmes.
In this suit for partition, Hannah B. Bymmes claims two shares in the land to be divided; one as heir, of Roger Brown, and the other as heir of Ethan A. Brown, while the remaining heirs of Ethan A. Brown insist that she had conveyed to Ethan A., in his lifetime, all her interest as heir of Roger Brown, so that she is now entitled but to the share falling to her as heir of Ethan A. Brown.
It is claimed that said Hannah conveyed her interest in sections 35 and 36 by deed, as follows:
“ These presents are to testify that we, Peyton S. Symmes and Hannah B. Symmes, wife of said Peyton S. Symmes, of Cincinnati, in the state of Ohio, in consideration of the sum of seven hundred and fifty dollars, paid to us by Ethan Allen Brown, of the state of Indiana, do bargain, sell, release, and quitclaim to the said Ethan Allen Brown, and to his heirs and assigns forever, all the right, title, interest, and claim in law and in equity, which the said Hannah B. Symmesi and her brother, David B. Close, since deceased, of whom the said Hannah is heiress at law, derived by inheritance of and from their grandfather, Roger Brown, or otherwise acquired, and also all right, title, and interest, present and future, of the said Peyton B. Symmes, by virtue of his marriage with his said wife or otherwise, in and to the land contained in section twenty-two, and fractional section twenty-three, in the fourth township of' the -first range west of the meridian of the mouth of the great Miami *320river, said lands lying in the county of Dearborn, state of Indiana, and in the possession of the said Ethan A. Brown and of his assigns now being: To have and to hold'the said section and fractional section, with the appurtenances, to the use of said Ethan Allen Brown, and of his heirs and assigns forever.
“In evidence whereof, we, the said Peyton S. Symmes and Hannah B. Symmes, do hereunto subscribe our names and affix our seals, at Cincinnati, on this thirtieth day of December, in the year one thousand eight hundred and forty-three.
“ Peyton S. Symmes, [seal.]
“ Hannah B. Symmes, [seal.]”
“ State of Ohio, Hamilton county, ss: Before me, Ebenezer Harrison, a justice of the peace in and for the county aforesaid, on this 19th day of February, 1844, personally appeared Peyton S. Symmes and Hannah B. Symmes, his wife, makers of the within indenture, and acknowledged the same to be their voluntary act and deed, for the uses and purposes therein mentioned. The said Hannah B. Symmes, on being questioned apart from her husband, and the contents of the within deed made known to her, declared that she executed the same of her own free will, without fear of her said husband or compulsion on his part —the word four in the fourth line from the top interlined before signing. “Ebenezer Harrison, [seal.]
“Justice of the Peace.”
The admission of this deed in evidence was objected to, on the ground, alone, that the same was only a conveyance of the interest of Symmes and wife in sections 22 and 23, and not in sections 35 and 36.
It was proved that Ethan A. Brown was in possession of sections 35 and 36. There was no proof, aside from the allegation in the deed, that he was or was not in possession of sections 22 and 23; nor that said sections had or had not belonged to Roger Brown.
The Court admitted the deed in evidence.
It was then contended by Symmes that the construction of that deed was for the Court; that it was for the Court *321to declare its legal effect; to say what it conveyed. On the other hand it was contended that there was a latent ambiguity in the deed, an uncertainty as to the subject-matter to which it was to be applied; that the parol evidence, that E. A. Brown was in possession of sections 35 and 36, and that they descended from Roger, taken in connection with the deed, tended to explain the ambiguity, and made a question upon the whole evidence for the jury.
The Court held this view of the question, and referred all the evidence to the jury. They found that the deed conveyed the interest of Mrs. Symmes, in sections 35 and 36, to Ethan A. Brown, and that, in the pending partition, she would only take a share as heir of said Brown.
Parol evidence may be given to remove a latent ambiguity in a deed or will. See Stevenson v. Druley, 4 Ind. R. 519; 2 Phil, on Ev., ed. 1859, p. 644. And where such evidence is given, the whole, including the written instrument, may be referred to the jury. 2 Phil, on Ev., ed. 1859, p. 640.
But is there any ambiguity in the deed above set forth ? If not, the Court should have declared its legal effect. And further, if there is no ambiguity in the deed, its construction by the Court would determine the rights of the parties under it, and this fact should have controlled the decision on the motion for a new trial; because, if the jury found against the construction the Court should have given, it rendered their verdict plainly erroneous. On the best reflection we can give, it seems to us that there is no ambiguity in the deed in question.
It is contended by the Browns, that the deed contains two clauses: 1. A release to E. A. Brown of all the interest, &c., of Mrs. Symmes, legal and equitable, in and to the estate of Roger Brown which she had therein, derived by inheritance from him. 2. A conveyance by Peyton Symmes, of all the right and interest he had in sections 22 and 23, by virtue of his marriage with Mrs. Symmes.
But we think the deed conveys the interest of each of said parties in the lands particularly mentioned in the premises, and again in the habendum of the deed. See 4 *322Cruise, top p. 348 in 2 Greenl. Cruise. This, we think, is the plain reading of the deed, and there is nothing in the evidence conflicting with it. The fact that sections 35 and 36 are in Dearborn county, is no evidence that sections 22 and 23 are not in the same county. The fact that Ethan A. Brown was in possession of sections 35 and 36, is no evidence that he was not also in possession of sections 22 and 23. And the fact that sections 35 and 36 once belonged to Roger Brown, is no evidence that sections 22 and 23 did not also once belong to him.
D. M’Donald and A. G. Porter, for the appellants (1). J. Sullivan, for the appellees (2).Had it been proved that sections 22 and 23 were not in Dearborn county, &c., it would have appeared that there was a mistake in the deed; but with this view we now have no concern.
The deed in question is plain in its language, specific as to property embraced, and there is nothing in the evidence to contradict its recitals, and no need of evidence to explain them.
Per Curiam.The judgment is reversed with costs.
Cause remanded, &c.