The piece of land which the parties intended to except in the deed from the other heirs to William Andrews is not described by metes and bounds. It nevertheless appears from the description to be a definite lot, containing about three fourths of an acre, marked out at the time of the deed by monuments on the ground, the words being “ about three fourths of an acre of land in and about the graveyard on said premises, as now staked out; ” and this makes a sufficient description. If a dispute arise between the parties as to what exact piece of land is covered by this description, it is for the jury to define its limits upon such evidence of the location of the stakes at the time of the execution of the deed as may be laid before them. The construction of a deed is matter of law for the court, and its legal effect is only deducible from its terms according to the intent at the time of making it. The application of the description contained in it to the ground is matter of fact for the jury. And what constitutes the boundaries of a piece of land to answer the calls of a deed may be proved to the jury by any kind of evidence which is competent to prove any fact.
No words of description can be added to the deed; and if the parties have described the premises which it was their intention to except in such a way that it is impossible to apply the description in the deed to the ground without trenching upon the rule which excludes parol evidence to enlarge or vary the terms of a deed, then the exception must fail, not because of any defect apparent on the face of the deed, but because no monuments existed in fact to answer the description.
In view of these elementary propositions, it would seem difficult to give full effect to this exception in any other way but by proving to the jury that some piece of land was “ staked out ” at the time of the deed, and what its boundaries were.
Was the parol evidence offered competent for that purpose ? It appears that, at the time, the parties went.upon the land and agreed upon the boundaries of the lot to be reserved as a cemetery. One stake was leaned against a stone wall, and it was agreed that the southwest corner should be where the stake was.
So far as that corner is concerned, there is no difficulty in holding that its location can be fixed by parol evidence ; and so far the literal call in the deed could be answered.
No stakes were set at the other three corners ; but their location was agreed upon, namely, a pine tree, the corner formed by the meeting of two walls, and a point in a wall to be ascertained by measurement. It is quite elementary that such meaning is to be given to words and expressions in a deed as may carry into effect the intention of the parties, and that the court will, so far as possible, put itself in the *569position of the parties, and, in judging of their intention, consider the facts and circumstances attending the transaction.
Applying these principles, it might be held that the parties adopted the pine tree and the corner of the wall as monuments, and misdescribed them in the deed, calling the lot “staked out,” when they meant •marked out on the ground by these different monuments which they had adopted, — although the case ’shows this was not so in fact, as they acted on the advice of the scrivener, who told them it could be as well staked out afterwards, and that the reservation in the deed would reserve the oblong lot according their agreement.
But as to the fourth corner, there was no monument to be adopted and described as a stake or otherwise ; nothing that by any stretch of construction could answer the call “now staked out.” They agreed that it should be at a point in the wall far enough from the corner to make the piece all the way of a width. Its location rested wholly and solely on a parol agreement, the terms of which are not referred to in the deed.
To hold that the necessary measurement may -now be made to meet this agreement of the parties, and that the corners may now be located according to the agreement when no such method of marking out the land can be inferred from the description in the deed, would seem to be wholly inadmissible.
It would, in effect, be wholly remodelling and reforming the deed upon parol evidence of what the parties intended to reserve; which can only be done, if at all, in a proper proceeding in equity brought for that purpose.
The parties here went upon the land, and agreed upon the bounds of the graveyard to be reserved in the deed, and agreed specially where each of the four corners should be. They should have described in the deed the monuments upon which they thus agreed. But instead of that, the description is a piece of land “ as now staked out.” There would probably be no difficulty in holding that these words amount to substantially the same thing as would the words “ agreed upon,” so that the description might be regarded the same as though it read “ about three fourths of an acre of land in and about the graveyard on said premises, as by the bowndaries this day agreed upon between the grantors and grantee.” But would this help the matter? We think not. We should then be called upon to hold that parol evidence of a parol agreement fixing the lines could be received in order to give effect to-the exception, and that would be allowing a most material part of the deed to be supplied wholly by parol.
No evidence was offered of any act of the parties subsequent to the-deed tending to show a practical construction of it by them, so that the authorities referred to by plaintiff’s counsel in his brief, and the-great multitude of authorities not cited, to the effect that acts of the parties may be shown to give location to lines not well described in the deed, are not in point.
If the parties to the deed had together gone upon the land and erected stakes to answer the call in the deed, “ staked out,” or marked out, *570in any way by visible monuments the plot intended to be excepted, that would probably have amounted to a practical construction of the description by which they and their grantees would be bound. But nothing of the kind appears to have been done, and we are unable to see how a court of law can do for them what they failed to do for themselves.
Can effect be given to the exception in any other way ?
In some cases courts will give effect to an imperfect description in a deed by locating the land in some mathematical form ; for example, where the grant was of seventy acres out of a particular corner of a larger lot, the grant was held to be of seventy acres in rectangular form out of that corner.
In this case, if the exception had been of three fourths of an acre in and about the graveyard now on the farm, and there stopped, the difficulty might perhaps be solved by laying out three fourths of an acre about the piece inclosed with posts and chains in the same form as that piece. But the deed shows that the piece excepted was to be “ as now staked out.” That might have been in the form of a square, or any other form. The parol evidence offered shows that the parties intended an “ oblong lot.” The words “ as now staked out ” cannot be rejected, because they form a material part of the description, and the court cannot see, as matter of legal construction, that they are insensible or repugnant to any other part of the description. . .
To make a location in the form of a square would be giving effect to the words “ in and about the graveyard on said premises,” and wholly ignoring the vital qualifying term “ as now staked out.” This cannot be done without forcing upon the parties a contract never contemplated •by either of them, and at the same time doing violence to the familiar rule that repugnant matter can only be rejected where there is a full ■and intelligible contract left to operate after the repugnant matter is ■excluded.
As to the graveyard four rods square, inclosed by stone posts and chains, it seems sufficiently plain, without resorting to extrinsic evidence, that this piece comes within the exception.
The plaintiffs will probably examine the question whether the facts which they sought to prove in support of this action may not be sufficient to entitle them to have the deed reformed in equity. But however that may be, it must be held that the evidence offered is not competent to show a title upon which they can recover in this action, and there must be
Judgment for the defendant.