The contract of April 22, 1839, executed by the parties in duplicate, and mutually exchanged, was one instrument, and each counterpart has the same signification, as an expression of the intention of the parties.
The plaintiff executed and delivered to John Brandow a counterpart of the instrument, or one purporting to be such, from which it appears that the plaintiff purchased only "the bark and timber (except the hard wood) on the 100-acre tract," and was granted the right to take immediate possession of the land for the purposes of the contract. According to the tenor of this instrument he has no title to the land, and no trespass against his rights has been committed thereon. It became a part of his case, as the actor seeking redress and invoking the judgment of the court in his favor, to remove every reasonable doubt and obstruction to his right of recovery. The counterpart produced by the defendant was entitled to the same faith and credit as that of the plaintiff. If the plaintiff wished to overcome or remove its force and effect as evidence against his construction, it was his business to present the proper issue to reform or correct it, so that it would truly express the contract on the evidence to be produced under such issue. The want of accuracy in that of the defendant is not proven by the mere production of the counterpart of the plaintiff containing the word "land" in the place of the word "bark," unless the true meaning can be determined by the context or tenor of the instrument to be in harmony with his claim. No doubt the court could, at the trial, properly receive evidence of the situation of the parties, and of the surrounding circumstances, to enable the court to look at the contract in the same light in which the parties entered into it. But there are some instances where no light from the surrounding circumstances, or the situation of the *Page 649 parties, can overcome the internal evidence of its meaning to be drawn from the written instrument. The judge or court should receive evidence of this character, when offered, unless it can be clearly determined that neither surrounding circumstances nor situation of parties can affect the question of construction. It was held, in Judd v. Ensign (6 Barb., 258), that the copy in the hands of the defendant should be followed, if the difference was material, in an action for a forfeiture of the contract, that being the copy under which the defendant had acted in making a series of annual payments.
The contract of the parties in this case has such inherent evidence of its true meaning, that it carries a clear legal conviction that it relates to a sale of the bark and of the timber, other than the hard wood, and not of the land. The bark was to be peeled and piled; the mode of ascertaining the quantity is mentioned, and is in part dependent on the peeling and piling; the payment is regulated by the measure or quantity of the bark peeled, as well as by the rate per cord when piled. The price of bark is stipulated, and not the price of land. The first payment is on account of "the above bark," and the balance yearly, as the bark and timber were to be taken off. Interest is to be paid from date on the amount of bark peeled, and the plaintiff is not to bear the risk of fire for the first two years. The plaintiff may have what time he chooses to remove the bark, but no stipulation is imposed upon Brandow as to the removal of the hard wood. A qualified possession is given to the plaintiff, and none other is mentioned or contemplated. The condition that the consideration or price of the land should be at the risk of the destruction of the bark by fire for two years, as claimed by the construction insisted on by the plaintiff, is without a precedent, and exceedingly improbable. The land is fixed and certain, and, upon a sale, the payment of the price, is universally sought to be secured beyond any chance. If the land was purchased, no concession was necessary as to the time for the removal of the bark, and the omission to restrict Brandow, in respect to taking hard wood, would be equally unnatural and remarkable. *Page 650 These numerous provisions to secure the rights of the parties as to the bark and the soft timber are not appropriate in a contract for the sale of land, but are apt and pertinent to a sale of the growing bark. I have purposely omitted to refer to the surrounding circumstances, which would include the very pregnant fact that the agreement was drawn and copied by the plaintiff, the draft, signed by him as an original, having been delivered to Brandow, who was unable to read or write, for the reason that evidence of the value of the land, bark and timber, excepting the hard wood, was offered by the plaintiff and excluded.
The legal meaning and object of the parties was plain, and the mistake of inserting the term "land" in the place of "bark" was apparent, without any resort to surrounding circumstances. Evidence of the value of the land, bark and timber, excepting the hard wood, would prove nothing material without further proof that the price agreed to be paid was more than the bark and soft wood were really worth. There was no offer to prove that these were not really worth the price stipulated; and no certain inference could be drawn that the price of the bark included the land, even if some witnesses had testified that the price agreed to be paid was equal to the value of both land and bark. This evidence was, therefore, immaterial, and its exclusion was no error.
The judge evidently based his opinion that the land was not included in the contract from its context, and in this conclusion he was entirely correct. This holding also renders the extrinsic evidence of the defendant wholly immaterial, although its admission was not erroneous.
I am unable to perceive that the plaintiff has proved a paramount title to the tavern-stand premises. The defendant and those under whom he claims had been in the possession of the premises under a claim of title for more than forty years; at least there was much evidence tending so to prove. Those from whom the plaintiff derives title, bounded the premises conveyed by them by the lands of John Brandow, under *Page 651 whom the defendant claims. It can hardly be possible that land conveyed by another, which was bounded upon land belonging to Brandow, could embrace land by which it was bounded, or of which be was in the possession. It appears that the title depended upon the facts proven in the case, upon which the judge has passed in rendering his decision, and it is no longer open to discussion.
The plaintiff objects that the defendant did not plead title by adverse possession, and that his claim, based upon title so derived, ought not to have been considered. In this respect I think he is mistaken. The defendant states in his answer that these premises had been the freehold of John Brandow, and in his possession for more than forty years prior to 1859; that he devised the premises to his daughters, under whose authority the defendant entered and committed the acts complained of. All the elements of an adverse possession are stated, and it was not important to designate the title as an adverse possession. The evidence of possession was properly admitted, and the question was finally passed upon by the court. It is not very apparent that the deed under which the plaintiff claims title purports to convey the premises in question.
The plaintiff also claims that his recovery of six cents damages entitles him to the costs of the action, and that the recovery of costs against him is erroneous.
The sum mentioned was recovered for damages committed by the defendant's cattle in going upon a portion of the lands mentioned in the complaint, as to which the defendant did not plead title in himself.
This action was commenced before a justice of the peace, and discontinued on the plea of title by the defendant. Another action was commenced in the Supreme Court, and it must be presumed that the defendant set up the same defence only, which he made before the justice, as was authorized and directed by section 60 of the Code. There was no question raised that the answer was not the same that had been made before the justice. Hence it is plain that the damages now *Page 652 recovered by the plaintiff might have been recovered before the justice. But the plaintiff sought to recover other damages for trespasses upon other lands which he claimed to own, as to which the defendant interposed a plea of title, and has succeeded.
The sixty-first section of the Code directs that, in such an action, the defendant shall pay costs upon a verdict, unless the judge certify that the title to real property came in question on the trial. As to the trespasses concerning which no plea of title was interposed, the action might have been continued under section 62.
The judge, before whom the action was tried, has certified that the defendant did not controvert the plaintiff's title to the land upon which the defendant's cattle committed trespasses, and as to all the residue of the lands, mentioned in the pleadings, the judge has found, and has thereby sufficiently certified, that the defendant had title, and that the title was in issue. The determination of the title was the only subject in controversy. There has been no recovery, by the plaintiff, as to any trespasses where the title to land came in question. Hence the plaintiff is not entitled to costs, under section 304 of the Code, and the defendant is entitled thereto under section 305.
The plaintiff has also insisted that he is entitled to costs under title 6, of chapter 5, of part 3 of the Revised Statutes. It is entirely plain, on a reference to that chapter, that this action was not prosecuted under it, and is not governed by it in any respect. It is not necessary, therefore, to discuss the question whether that chapter is still in force, or has been repealed by the Code. We may concede that it has not been repealed; it would not avail to give costs to the plaintiff, nor to save him from liability therefor.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 653