Petition for rehearing. We do not feel called upon to write opinions in all cases where rehearings are denied or granted, and where we fail to do so it is through no indifference to the views of counsel, but because our attention is invited to no question, necessary to the decision, which has not in our judgment been sufficiently noticed. Where some more or less vital question has been overlooked or insufficiently treated it would seem but just that further consideration to it should be given. The court invites careful scrutiny of its decisions and deems it a favor to be given an opportunity to correct errors which it may have committed.
Our attention is now invited to two points which counsel urges were either overlooked or not given due consideration. It is said that we "overlooked, as did the court below, the provisions of section 1069 of the Civil Code, which provides that a grant between private parties is to be interpreted in favor of the grantee"; and it is urged that if the several parts of a grant are absolutely irreconcilable, the former prevails. (Civ. Code, sec. 1070) Where the question is simply one of construction the code rule should be followed. But the general rule that the earlier clause prevails is not imperative where the inconsistency or irreconcilability is so great as to justify extrinsic evidence to explain it. The code rule that a grant is to be interpreted in favor of the grantee must be read in connection with another code rule (Civ. Code, sec. 1654), which provides that where there is uncertainty the language of the instrument must be interpreted most strongly against the party who caused the uncertainty to exist. In the present case the deed under examination *Page 70 was prepared by McKenzie, the attorney or agent of Mrs. Ross, and was executed at her request as thus prepared. We still think that the latter clause of the deed cannot be wholly ignored, but that extrinsic evidence was admissible to aid the court in arriving at the intention of the parties.
Upon the evidence it may be admitted that the trial court would have been justified in reaching a different conclusion as to the intention of the parties. Mrs. Ross testified that her intention in having the disputed clause inserted in the deed was to make sure that she would get the land west of the river. Her testimony is, in some respects, corroborated. On the other hand, the testimony of Cole leads to a different conclusion, certainly as to his intention in executing the deed and what he understood to be its purpose, and the conduct of Mrs. Ross in some degree weakened her statement. The testimony and also the documentary evidence on the point are in open conflict. It was the province of the trial judge to reconcile conflicting evidence and inferences derivable therefrom. If we are correct in our view that resort to extrinsic evidence was justified, the rule that where there is a substantial conflict this court will not interfere with the conclusions of the trial court leaves us without power to look farther. The manifestly firm and honest conviction of counsel for appellant that we are in error in holding that extrinsic evidence was admissible has led us to re-examine the question, but, with our present lights, we are still of the opinion that such evidence was properly taken. Indeed, this to our minds is the principal question in the case and, fortunately for appellant, if we are wrong, he has an adequate and speedy method to correct our error.
Rehearing is denied.
Hart, J., and Burnett, J., concurred. *Page 71