The first question to be determined is, whether the lots now in controversy are embraced within the covenants contained in said agreement, of which Exhibit F is a copy, commonly known in Portland as the “escrow.” If so, then the decision in the case of Lamb v. Davenport [Case No. 8,015], will control this case. The said instrument is an agreement between Lownsdale, Coffin and Chapman. After reciting that said parties “have heretofore, up to the date of these presents, been joint proprietary claimants to the tract of land ***** upon which a part of the city of Portland is laid out,” and that “the said Lownsdale, Coffin and Chapman have sold lots in said city of Portland, to each other and to third persons, obliging themselves to make to the grantee, or grantees, a deed of general warranty, whenever the grantor shall obtain a patent from the government of the United States for the same;” also, reciting an agreement to divide the claim, and present separate tracts in the separate name of each for a patent; each covenants with the others, among other things: “1st. That he will fulfill and perform all contracts and agreements which he has heretofore entered into with the others, or with each of them, or with other persons, respecting the said tract of land, or any part thereof * * * ;” and “4th. That when a patent shall be so obtained, he will make a good and sufficient deed of general warranty, for all lots or parts of lots in the part or tract so patented to him, which may heretofore have been sold, or agreed by the said parties, jointly, or any of them separately, to be sold, the said deed, of course, in all cases to be made to the grantor, his heirs, executors, administrators or assigns, or grantee or grantees, as the case may be.” Unless the lots in question are within the scope of one of .these two covenants, they are' in no way affected by this agreement.
It is insisted, on the part of the complainant, in the cross-bill: Firstly, that the covenant by Lownsdale, “that he will fulfill and perform all contracts and agreements which he has heretofore entered into * * '* with other persons respecting this said tract of land, or any part thereof,” in terms embraces the bond given to Pettigrove, of which said Exhibit B is a copy, and that under the condition of that bond Lownsdale was bound, upon his acquisition of title, to convey to Pettigrove’s grantees, one of whom is said complainant, such lots as Pettigrove had quitclaimed before his ;. ...e to Lowns-dale, and as were mentioned as reserved in his conveyances to the latter, and in the said bond.
Conceding the bond to be one of the contracts embraced in this covenant, it will be necessary to ascertain what obligations *1037Lownsdale assumed in that bond, which he is required by this covenant to “fulfill and perform.” The condition of the bond, it must be confessed, we think, is somewhat anomalous, and the objects to be accomplished are not very satisfactorily expressed. It is in these words: “Now if the said Daniel H. Lownsdale shall do and perform all reasonable acts, and make all reasonable exertion to procure from the territorial government of Oregon and the government of the United States a good and sufficient title 1o and for said land claim, and shall in no way sell, transfer or incumber the lands and tenements above specified and exempted from said sale, then the above obligations shall be void; otherwise, in force.” Why should Pettigrove bind Lownsdale, under heavy penalties, to procure title from the government to the land claim, unless he expected to derive title from Lownsdale to those lots reserved for his own use, and unless he expected his prior grantees to be benefited by the act as to the lots already sold and excepted from his conveyance to Lownsdale? And why, also, obligate him under similar penalties to “in no way sell, transfer or incumber the lands and tenements above specified and exempted from sale” after so acquiring “a sufficient title” thereto from the government? Why should Pettigrove be so solicitous to require Lownsdale to procure title to the lots reserved from sale, as having been sold to other parties, as well as the rest reserved for Lownsdale’s own benefit, and then, having obtained the title, oblige him, under heavy penalties, to forego all enjoyment of his property by putting it out of his power in any way to rightfully “sell, transfer or incumber” them?
It is not easy to give a satisfactory answer to these queries, and yet the plain import of the language used, is only to oblige him to procure title, and then not to sell, transfer or incumber certain designated lots. It cannot possibly be expanded into a covenant in terms to convey the lots designated to Tettigrove and his prior grantees, or to hold them in trust for said parties. To so construe it, would be to interpolate language which Lownsdale himself has not used, to add to, rather than to construe, the language of the contract. The testimony of the attorney who drew the instrument, is offered to show what the parties intended by the language used, but this was wholly inadmissible. The parties put their contract in writing, so that there might be no occasion to prove it by parol testimony. Having put it in writing, the intention of the parties must be derived from the language they have adopted. The contract is, in all other respects, in due legal form. It was drafted by an attorney, and is not open to liberal presumptions, on the ground that it was drawn by a layman, unused to legal forms and phraseology, who has used inar-tificial language. The language itself is plain enough to express the idea embraced in it. It expresses distinctly and clearly an' idea in exact and artistic language, and one, in itself, proper to be expressed in a contract, but it does not express the idea, or the covenant, now claimed for it.
The difficulty is, not in ascertaining what the words do in fact express, but in bringing within the words used, a covenant which they do not and cannot of themselves be made to express. If the parties intended to covenant for the conveyance by Lowns-dale to Pettigrove and his prior grantees, of the lots designated after he should acquire the title, they have signally failed to express it.
Says Greenleaf: As the parties “have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it or substituted in its stead. The duty of the court in such cases is to ascertain, not what the parties may have secretly intended, as con-tradistinguished from what their words express, but what is the meaning of the words they have used.” 1 Greenl. Ev. 277.
This rule is applicable in equity, where the instrument is presented collaterally for construction, as in this case, as well as in cases at law. If a term in the contract is omitted or misstated1 through fraud, accident or mistake, the contract must first be reformed by a direct proceeding in equity, in which the' fraud, accident or mistake is alleged and clearly shown, before it can be enforced according to the true intent of the parties.
In this case we are not called upon to reform a contract, but to construe and enforce it as it is written.- This being so, we are not authorized to expand the covenants beyond the plain and natural import of the words as we find them. And we find nothing in the condition of the bond under consideration, requiring Lownsdale to convey the lots therein designated, to Pettigrove and his grantees, or to hold them in trust for their use.
The said complainant in the cross-bill claims: Secondly. That the lots in question fall within the fourth clause of the escrow.which provides that “he will make a good and sufficient, deed of general warranty for all lots, or parts of lots, in the part or tract so patented to him, which may heretofore have been sold, or agreed by the said parties jointly, or any of them- separately, to be sold.” The claim is that the words “heretofore have been sold.” is not limited to sale by one or more of the three parties to the agreement, but is general, including all lots which “heretofore have been sold” by any party in the chain of title to the possession set out. by whomsoever sold; that it embraced the sales by Pettigrove of the lots designated in his conveyance to Lownsdale, and in the aforesaid bond as excepted, and also excepted in the subsequent agreements between Lownsdale and Coffin, and Lowns-*1038dale, Coffin and Chapman jointly; or any of them separately. It is also insisted, if we understand the argument, that the words “to be sold” should be read as if written “to have been sold;” and the term “agreed,” in the sense of “admitted,” or “conceded;” that is to say, agreed, admitted or conceded by the said parties in the various contracts set out to have been sold.
And the fact that these lots had been excepted, as having been sold as town property, in all the various prior instruments of conveyance or agreements, is referred to as matter in pari materia, to show the meaning intended to be expressed by the language under consideration.
This is certainly very ingenious, and very acute criticism, but, in our minds, more specious than sound.
As to the words “agreed,” “to be sold:” The words “jointly, or any of them separately,” would never have been used to qualify the word agreed, used in the sense indicated. They certainly would not say by the said parties, jointly, or any of them separately admitted to be sold, or to have been sold. They do not mean a joint or separate admission. The agreement by which the lots in the clause in question were agreed to be sold— by which the sales intended were effected— is clearly what is intended, as jointly or separately made. That is to say, the lots intended to be covered by this clause were lots which one or more of these three parties to this instrument — the escrow — had agreed to sell; which said parties jointly, or any of them separately, had agreed to sell.
The meaning of this clause being determined, we think it clear that the phrase “said parties, jointly, or any of them separately,” also qualifies the phrase “which may, heretofore, have been sold,” as well as the phrase “agreed to be sold.” The former phrase is immediately followed by the latter, coupled by the conjunction “or.” It evidently means lots “which may heretofore have been sold by said parties jointly, or any of them separately, or agreed, or contracted to be sold, by said parties jointly, or any of them separately.” This is the natural grammatical construction of the language — the construction by far the most obvious, and the one which first strikes the mind. It is the form which any party desiring to express that idea would be most likely to hit upon. The other construction would be strained and unnatural. The form of expression is not one at all likely to be adopted by any party desiring to express the idea now claimed for it. After a careful examination of this fourth covenant, in connection with the entire instrument, we are of the opinion that it does not embrace lots sold by Pettigrove, or any persons other than the parties, or some one or more of the parties, to the instrument in which it occurs. If we are right in the construction given to the covenants under consideration, this case does not fall within the principle adopted in Lamb v. Davenport [supra].
Having determined that there is nothing in the several contracts in writings set up in the cross-bill, to entitle the .complainant therein to the relief sought, it becomes necessary to ascertain whether there is any other matter alleged and proved, sufficient to establish a trust in his favor in the premises in controversy.
Prior to the issuing of the patent to said Lownsdale, the title was in the United States, and there jvas no law by which title could be acquired before the passage of the act of congress of September 27, 1850 [9 Stat. 497], commonly called the “donation act,” under the provisions of which the patent to Lowns-dale was issued, June 6, 1865. There are general averments of a usage for one man to take up a land claim upon the public lands, lay it off into town lots, and sell them out to individuals with a general expectation that at some future day, a title would, in some' way, be obtained by the general claimant for the benefit of all who had purchased under him, and that when obtained he would convey to his vendees such lots as he .had sold; that uie claim in question was taken up in this mode; that there was a general expectation that parties who had bought from Pettigrove would obtain title from him as claim-holder, or from his assignees of the general claim, in case they should ultimately obtain title; that this expectation and the fact of occupancy were known to Lownsdale, Coffin and Chapman; that the patent was obtained with a knowledge of these expectations, etc., etc. It would be a laborious and tedious, but an unnecessary and unprofitable task, to particularly state and discuss, at large, the allegations of the cross-bill, and testimony supposed to be applicable thereto. Similar allegations were made in the cross-bill, and similar evidence introduced in the case of Lamb v. Davenport, supra. Though we did not, then, particularly discuss in the decision rendered this aspect of the cross-bill, it was considered by the court, and it was said in one of the opinions in that case, that “the ue-cision of this action should turn upon the validity, construction and effect of the said various contracts and conveyances, copies of which are annexed to the cross-bill.” After a careful re-examination of this branch of the case, we are still satisfied that, unless a trust can be established under the said several written instruments, there is no basis shown upon which a trust can be rested. There is no direct contract in any way relating to these lots, either verbal or written, upon any consideration moving between the parties, Lownsdale and complainant, Vaughn, or any of the latter’s grantor's, or otherwise, subsequent to the said bond to Pettigrove, already considered. This bond is the only contract to which Lownsdale was a party, or privy in any way affecting the title to the lots sold by Pettigrove before the latter’s convey-*1039anee to Lownsdale, and this contract, according to the construction already given, affords no foundation for the establishment of a trust. In no other way, until the issuing of this patent, has Lownsdale been brought by any valid agreement into relations either with these lots or with the rights therein of complainant in the cross-bill. He never purchased the lots, and never had or claimed any interest in them, till he acquired an interest under the said donation act. It was, therefore, a matter of no concern to him wnat use was made of them by the parties in possession, before he himself acquired any rights therein, and he had no occasion to object to, or interfere with, the action or the possessor, or the claimants under Pettigrove. Nothing has transpired since the patent issued to affect the rights of the parties.
Without a further particular discussion of the facts, we shall content ourselves with stating in general terms our conclusion, that no contract or agreement, verbal or written, valid either in law or equity, has been shown between Lownsdale and the complainant in the cross-bill, or any party under whom he claims, by which Lownsdale or his heirs can be compelled to convey the title derived from the United States to the premises in controversy; and that there are no acts in pais shown which would justify a court of equity, upon any established principles, in impressing the premises in controversy in the hands of Lownsdale’s heirs with a trust in complainant’s favor.
The very general and vague expectations and acts indicated by the testimony, and relied on by the complainant in the cross-bill to establish his equity, outside of the written contracts exhibited, would afford a very up-safe foundation for a court of equity to build a trust upon, whereby titles to real estate are to be changed. We know of no case where trusts have been impressed upon real property upon so unsatisfactory a showing. Whatever the mere moral aspect of the ease may be, we are satisfied that nothing has been shown which entitles the complainant in the cross-bill to the relief demanded, upon any known principle of equity jurisprudence. Our views upon this branch of the case, were indicated at the last May term of this court, by our action in striking out of several similar bills, on the ground of impertinence, much of the matter alleged in the cross-bill in this case, relied on as the foundation of complainant’s equity. Further reflection confirms the view then taken.
It is unnecessary for the purposes of our decision under the view taken of the other points, to determine whether the complainant in the cross-bill has connected himself by proper mesne conveyances with Pettigrove’s grantees. As to some of the lots, at least, we strongly incline to the opinion that he has not done so. But, for the purposes of this decision, we have assumed, without deciding the question, that he has succeeded to all the rights of Pettigrove’s grantees. The cross-bill must be dismissed, and a partition made among the heirs of Lownsdale, deceased, according to the prayer of the original bill. Let a decree be entered accordingly, with costs.