(dissenting).
The majority, in construing the deed in controversy, obviously overlooked certain legal tenets universally obtaining that courts are bound to give legal effect to the contract according to the intent of the parties which must be ascertained from the language used1 and where descriptions are in conflict, they should be reconciled and harmonized if possible and when they can not be-reconciled, then a construction must be-adopted which best comports with the intention of the parties, keeping in mind always the circumstances which controlled or influenced the contract.2 Stated differently, a construction which neutralizes one- or more provisions of the deed should not be adopted if it is susceptible of another which gives effect to all of the provisions.3
The record discloses The Union Bank acquired the property located in the Town of Marksville, fronting 48.83 feet on Main Street, running between parallel lines 179' feet on Mark Street, appearing as the unshaded part of a plat4 hereinbelow prepared in order that we can intelligently follow the various calls in construing the deed.
*821Legend:
1 — The above plat is essentially the same as the one made by Edward B. Messick, Surveyor, on Sept. 16, 1937 at the request of Union Bank of a survey previously made by him July 30, 1935 for the Avoyelles Trust & Savings Bank who then owned all the southern portion of block 5 of the Town of Marksville, except 6 feet, fronting 225' on Mark St. according to the plat being measured from the sidewalk curb on Monroe St. to the sidewalk curb on Main St. Across this property is a concrete curbing which is 13' back of the back wall of the bank.
2 — Of this property Avoyelles Bank by deed dated July 31, 1935 transferred to Union the eastern portion fronting 179 feet on Mark Street.
3 — In this deed there was reserved a 10' right-of-way running parallel with the back wall of the bank building for the use of its property to the north of the bank for the post office or beginning 98' from the south-east corner.
4 — Union Bank by deed Nov. 3, 1936 conveyed to Roy the western 71' of the property it acquired from Avoyelles Bank that is at a point beginning at a stake measured to the western boundry of the driveway reserved in the deed to Union Bank or 108' to the south-east corner of the bank property where a fence was erected by Roy immediately before this litigation started.
5 — -The strip between the fence constructed by plaintiff, running parallel 10' from the bank wall and the concrete curbing forms the basis of this suit.
*823In the deed by which the plaintiff acquired the property on July 31, 1935, is contained the stipulation:
“ * * * that the purchaser shall always leave open a driveway or passage, and to be used only as such, for the benefit of the lot now belonging to the vendor and known as the Post Office lot which is located immediately north of the property herein sold, said driveway or passage to be located immediately west of the bank building or ninety-eight (98) feet from the eastern property line of the property herein sold, and to be ten (10) feet front on Marks Street running back between parallel lines to the said Post-Office lot, said driveway or passage being shown on the plat of survey of E. B. Messick, Surveyor, attached to this sale.”
Reference to the plat will show that while the survey was made July 30, 1935, it was not prepared -.until September 16, 1937 5 at plaintiff’s request and on the 3rd of November following, Anthony J. Roy, Sr., defendant in the instant case, acquired by deed from plaintiff the western 71 feet of the property it had acquired from Avoyelles Trust & Savings Bank, under the following description:
“A certain town lot situated in the corporate limits of the town of Marksville, Avoyelles Parish, Louisiana, beginning at a point ten (10) feet back of the back wall of the present Union Bank Building which is one hundred eight (108) feet from the Southeast Corner of the Union Bank lot along Mark Street, a distance of seventy-one (71) feet from said point along Mark Street by a depth between parallel lines of forty-eight and 83/100 (48.83) feet bounded on the North by Estate of G. L. Mayer and Mrs. Harry Schrieber; South by Mark Street; East by property belonging to the Union Bank; and West by property belonging to the Avoyelles Trust and Savings Bank.”
Plaintiff, in renovating and improving the “Union Bank Building”, claims its property extends 13 feet “back of the back wall” of the building, instead of 10 feet as recited in its deed to the defendant, which prompted the latter to construct a fence 10 feet from the wall, according to the call in his deed; whereupon, plaintiff, averring it was in possession of the strip for more than one .year, instituted a possessory action.
From the foregoing, it is obvious the plaintiff intended to and did sell to Roy all of the property it had acquired in 1935 from the Avoyelles Trust & Savings Bank west of the driveway which had been specifically reserved in its deed “for the benefit of the lot now belonging to the vendor and known as the Post Office lot * * * or ninety-eight (98) feet from the eastern property *825line of the property herein sold * * as is clearly expressed by the language used in the deed from plaintiff to Roy wherein the same is described as “beginning at a point ten (10) feet back of the back wall of the present Union Bank Building.” The clause immediately following, “which is one hundred eight (108) feet from the Southeast Corner of the Union Bank Building”, simply means that the 10 feet passageway had been added to the 98 feet call contained in plaintiff’s deed from Avoyelles Trust & Savings Bank, thereby establishing defendant’s eastern property line 108 feet from the southeast corner of plaintiff’s property as it appears on the plat of the survey by Messick.
Thus it may be seen there is no difficulty at all in reconciling the different calls in the deeds by the language used in the deeds themselves, when considered in connection with the plat made specifically at the request of plaintiff a short time before the preparation of its deed to the defendant, and was obviously used in the confection thereof. This construction harmonizes with the boundary of the property sold as reflected by the plat of the survey giving the defendant the full 71 feet on Mark Street that he had purchased, the Bank retaining the balance of 179 feet it previously purchased, or 108 feet, thus conforming with the boundaries set forth in the deed as being: “bounded on the North by Estate of G. L. Mayer and Mrs. Harry Schrieber; South by Mark Street; East by property belonging to the Union Bank; and West by property belonging to the Avoyelles Trust and Savings Bank,” the latter being now owned and occupied by Maxwell Bordelon.
That that was the intention of the parties fully supports the uncontradicted testimony of the defendant. While the plaintiff did subpoena several witnesses who were connected with the Union Bank as employees, officers, or members of its Board of Directors at the time of the sale to Roy, none testified in rebuttal, the presumption being, therefore, that if they had been called to testify, their testimony would be adverse to the plaintiff’s contention.6
It is apt to observe that there was inscribed on the plat made by Messick a notation7 specifically calling to the plaintiff’s attention if it intended to use the con*827Crete wall as its western boundary, 111 feet, instead of 108 feet from the southeast corner of the property would be necessary to satisfy the 10 feet servitude of passage reserved in its deed of acquisition from Avoyelles Trust & Savings Bank. Despite this information, the deed which was drafted by the Bank officials or its attorney by designating the call as being 10 feet “back of the back wall of the present Union Bank Building”, clearly shows that it did not intend to use the concrete wall as its western boundary. According to the plat upon which these calls were based in the deed in controversy, the concrete wall placed the western boundary of the plaintiff 13 feet “back of the back wall of the present Union Bank Building”, instead of 10 feet as recited in the deed, and 111 feet, instead of 108 feet, from the southeast corner as recited in the deed.
Plaintiff now seeks to extend its western boundary to the concrete wall, relying on surveys recently made for the purposes of this litigation and on which the majority rests its decision, showing plaintiff’s property begins at a point 6.4 feet in front of-plaintiff’s building. The fallacy of this claim lies in the fact that the drafter of the deed in controversy did not have this information at the time of its confection. On the contrary, the officer or attorney who prepared the deed more than a quarter of a century ago, had only the plat of a survey that had been previously made at the request of plaintiff’s vendor, which delineated the extent of the property plaintiff acquired and in accordance with which the calls in its deed to the defendant were designated. So it is absurd, to say the least, that the Bank intended to sell and Roy intended to buy according to surveys and plats that did not exist at the time of the execution of the deed.
Furthmore, to accept the basis for plaintiff’s claim and at the same time give the defendant his full 71 feet fronting on Mark Street, as clearly shown by a survey prepared by Lloyd Frost, would result in extending Roy’s property line so that it would encroach on Bordelon’s property, taking several feet of frame buildings there located. In other words, Roy would be short of the 71 feet fronting on Mark Street about 3.5 feet. Whereas, the construction on which defendant’s claim is based, does not, as claimed by the majority, “disrupt the measurements of all other lots along Mark Street on Block 5,” as the owners of these lots are not parties to this suit, and besides, we have no knowledge of the extent of their titles. On the contrary, defendant’s position is fully confirmed by the fact that, as shown by the plat8 pre*829pared by Messick for Avoyelles Trust & Savings Bank, prior to its sale to the plaintiff, its vendor, owned all of the south portion of the block between Main and Monroe Streets, measuring 225 feet along Mark Street, (with the exception of the western 6 feet) ; of which plaintiff acquired the eastern 179 feet by deed dated July 31, 1935, thus leaving Avoyelles Trust & Savings Bank owning 40 feet immediately west thereof which it sold to Charles Mayeux on November 8, 1937, and is now owned by Maxwell Bordelon.
Defendant’s claim is further corroborated by Mr. Bordelon who testified that he had no difficulty in locating his property by referring to the deed of the Avoyelles Trust & Savings Bank to the plaintiff and the one from the plaintiff to the defendant and checking with the recorded plat made for plaintiff. He stated that after locating a stake on Mark Street indicated by the plat, he measured the distance between it and the “back of the back wall” of the Bank, and found it was 81 feet, which coincided with what the plaintiff recited in its deed to Roy, or 98 feet from the curb of the sidewalk in front of the building; and immediately thereafter planted a hedge delineating his eastern property line beginning at that stake, which has been recognized as the boundary between the two properties ever since.
The majority obviously overlooked the fact that if plaintiff, by its deed of July 31, 1935, from Avoyelles Trust & Savings Bank did not acquire 179 feet, as recited therein, and it extended 3.5 feet into the street as claimed by its witnesses, this shortage can not be charged to its vendee, defendant herein, because under the express provisions of the Revised Civil Code, the plaintiff, as “seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.” Art. 2475, including “ * * * the buyer’s peaceable possession of the thing sold * * Art. 2476.
I, therefore, respectfully dissent from the maj ority.
. Snelling v. Adair, 196 La. 624, 199 So. 782 and authorities cited therein; Art. 1945, R.C.C. of 1870.
. Smith v. Chappell, 177 La. 311, 148 So. 242.
. Glassell v. Richardson Oil Co., 150 La. 999, 91 So. 431.
. This plat is essentially that of Edward B. Messiah, Surveyor, which is referred to in the deed.
. See footnote 8.
. Rubenstein v. Files, 146 La. 727, 84 So. 33; Perez v. Meraux, 201 La. 498, 9 So. 2d 662; Succession of Yeats, 213 La. 541, 35 So.2d 210; Pearlstine v. Mattes, 223 La. 1032, 67 So.2d 582.
. “Note: Drive way provision made in sale from Avoyelles Trust & Savings Bank to Union Bank of roadway 10 wide at a distance of 98' from S.E. Cor. of lot sold or intersection of Main St. and Mark, but same is erroneous as about 111.00 feet from said intersection is required to provide for a 10 ft. st. or roadway using drive way concrete wall as western boundary—
“Strip remaining on Monroe St. 6' x 48.83 apparently belongs to the Avoyelles Bank of Marksville, title not transferred to Avoyelles Trust & Savings Bank.”
. “State of Louisiana “Parish of Avoyelles:
“At the request of W. L. Caldwell, President of the Avoyelles Bank and. Trust Co., I have surveyed and measured the boundaries of a certain town lot sold to the Union Bank on July 31, 1935, and filed Al. Book, A67, folio 160, repre*829sented by that portion of diagram shaded yellow—
“On January 16, 1899, Geo. L. Mayer conveyed to Avoyelles Bank of Marksville a town lot measuring 48' 10” (48.83) on Main St. by 48' 10" on Monroe St., by 225%' on Mark St. * * * (Then follows a chain of title unrelated to the issue at hand.)
“Surveyed this 30th day of July, 1935 and plat prepared this 16th day of September, 1937 of survey for Union Bank.” Signed: “Edw. B. Messick, Surveyor.”