#### Glanton vs. Anthony et al.

Where a purchaser of a portion of the lands, donated, by the United States to this State, for purposes of internal improvement, situate in Jackson county, and for which he had executed his notes as prescribed by law, but received no certificate of purchase, conveyed by deed “all his right, title, or claim of, in, and to any improvement or improvements on public land, that are situate in Jackson county,” pa-rol testimony, or the facts and circumstances under which the deed was executed are admissible to explain the meaning and intent'of the conveyance, and to show that the deed was for the conveyAce of the grantor’s interest in the land so purchased of the State.

When parties have deliberately put then agreement in writing, in such terms as import a legal obligation, without any ambiguity as totheobject or extent of the agreement, all oral testimony of conversations or declarations, before or at the time of the execution of the contract, or afterwards, should be rejected.

But parol'evidence maybe introduced, the more perfectly to understand the intent and meaning of the parties; and, whatever indicates the nature of the subject, is a just medium of interpretation of the language and meaning of the parties, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive, if considered in the abstract.

No distinction can exist between an interest in an improvement on public land, and an interest in the land itself; and so, by a deed conveying all the grantor’s interest in such improvement, all his interest in the land, which can be only equitable or possessory, passes by the deed to the grantee.

Appeal from the Ci/rovñt Qov/rt of Jaelcson County m Cha/ncery.

Hon. Beaufort H. Neely, Circuit Judge.

Bevens,' for tbe appellant.

Tbe subject of tbe conveyance in tbe deed of John J. to Benjamin B. Clanton, admits of no doubt or ambiguity. Pelham ad. vs. Wilson et al., é Arle. Pep. 292. Tbe court will effectuate tbe intention of tbe parties, if it can *544be done consistently with, the rules of law. 1 Mass. Rep. 219 / 10 J.-R. 133/ Oh. on Bills, 8th Ed. 92. But parol evidence is not admissible to explain an ambiguity on the face of the instrument; and no construction can be put upon a contract directly contradicting its express stipulations. There is no ambiguity in the terms, “an improvement on public land.” Cobbs vs. Eon-tame, 8 Rand. Rep. 487.

Parol evidence is never admissible to explain an ambiguity, which is not raised by extrinsic facts, {Starleie’s Ev., 3 vol. 1000/ Phill. on Ev., 4 Ed. 566, ib. 6 Ed. 563/ nor be admitted to show that the parties intended to use a word, or term, in any other or different sense than the well known meaning of the expression. Poe on Pem. of Spicer vs. Lea, 11 East. Rep. 312. Ib. 142.

"Where there is no latent ambiguity, ^nd the terms of the instrument are clear, even prior letters of the parties are inadmissible to restrain or alter the sense of the instrument. Tuoleer vs. Mcmwell, 11 Mass. Rep. 143/ Johnson vs. Johnson, 11 Mass. Rep. 859, 363; Johnson vs. Weed, 9 J. R. 310/ Putnam vs. Lewis, 8 J. R. 304/ Oh. on Con., 3 Amer. Ed., marg.p. 25.

■"Where a contract is once reduced to writing by the parties, all oral testimony of a previous colloquium, or of conversations, or declarations, at the time when it was completed or afterwards, is rejected, as it would tend, in many instances, to substitute anew and different contract for the one really agreed upon, possibly to the prejudice of one of the parties. Jordan vs. Femio, 13 Arle. Rep. 598/ 1 Oreenl. Ev. 298/ 3 Oowen dé Pill’s notes to Phill. Ev., note 961, 984/ Jaoleson vs~ Jaoleson, 5 Oowen 173/ 12 Wmd. •61/ 4 Arle. 179/ 13 Arle. Rep. 449.

It being apparent then that the deed conveyed only the interest of the grantor in an improvement on the public land, no oral testimony ’can be admitted to prove that the grantor intended to •convey any legal ox equitable interest in the land, as charged in the bill.

JokdaN, for the appellee.

"Opon a fair construction of the deed *545from John J. to Ben. Grlanton,. aided by parol evidence of extraneous circumstances, it is evident that tbe former conveyed to tbe latter bis entire interest in tbe land in controversy. In arriving at tbe true construction of a deed, tbe court will look to tbe entire deed in all its parts. Ghit. Oon. (5th Amer. Ed.) 73,83/ Bridge vs. Wellington, 1 Mass. 219.

Tbe situation and true intent of all parties and tbe subject matter, are to be considered in determining tbe meaning of a contract. Sumn&r vs. Williams, 8 Mass. 216/ Fowle vs. Bigelow, 10 ib. 382 / Wilson vs. Troupe, 2 Oow. 228 / Da/ois vs. Ba/rney, 2 Oill <& John. 382/ Lawrence vs. Dale, 11 Yerm. 519.

Tbe rule that excludes parol evidence, to contradict or vary tbe terms of tbe written instrument, only excludes evidence of tbe language of tbe party, and not of tbe circumstances in which be was placed, or of collateral facts. 1 Qreenl. Do., see. 297,286/ 2 Bhill. Ev. 712 (615.)

Tlie question, as to tbe admissibility of parol evidence, depends upon whether there is a latent or patent ambiguity on tbe face of tbe deed. That there is no such patent ambiguity on the face of tbe deed, as to render it inoperative and void for uncertainty. 1 Qreenl. Ev., sec. 297, 298,286,287 amd notes; Gresley’s Ev. 201, 203, 209. But, on. the contrary, it falls clearly within tbe rule of latent ambiguities, and that parol evidence may be resorted to, to annex a definite meaning to tbe written expressions,, and to point out their application to the proper subject matter. 2 Stark. Ev.'{^Ith Amer. Ed.) 757/ 1 Qreenl. Ev. 282/ Selden vs. Williams, 9 Watts 9/ Ha/yden vs. Ewing’s Devisees, 1 B. Mon. 113/ FramMin Ins. Oo. vs. Drake, 2 ib. 52/ 4 Dana 337/ 2 Leigh Hep. 630/ 3 Ear. <& John. 469/ 2 Binn. 109/ 19 J. B. 313.

An ambiguity, raised by extrinsic evidence, or where it partakes of the nature of both a patent and latent ambiguity, may be removed by parol evidence. 2 Bhill. Ev. {6th Amer. Ed.) 712 (664)/ 5 Bick. 170/ 1 Mason 0. O. R. 9/ 2 Leigh. 630/7 Dana 276.

Parol declarations of tbe grantor, previous to the execution of *546tlie deed, and at the very moment of its execution, are admissible to explain the intention with which it was done. 2 /Steven’$ Nisi Prius 1539; 3 Hwnijph. 107; 5 JRcmd. 211; 13 Ark. 116.

■ Mr. Justice Walebe

delivered the opinion of the Court.

This is a suit in Chancery, from the Jackson Circuit Court. The grounds for equitable relief, are based upon the following state of facts: John J. Grlanton, a resident of Jackson county, on the 27th day of January, 1843, applied for and purchased of the Governor of this State, then land agent for the State, the east half of section twenty‘nine, in township nine north, of range three west, containing three hundred and twenty acres, it being part of the 500,000 acre donation of lands to the State for purposes of internal improvement; for the payment of which, he executed to the State, ten bonds, for the sum of sixty-four dollars each, payable annually, so that the whole payment would be made at the end of ten years. That no certificate of purchase was delivered to the said John J. Glanton, by said land agent; and that, subsequently, the said John J. Glanton, who had improved said lands, on the 16th clay of July, 1845, by deed, conveyed all his right, title, interest and claim, in and to said land, for a valuable consideration, to Benjamin F. Glanton, who, on the 13th of October, 1846, by deed, conveyed all his right, title, interest and claim, in and to the aforesaid tract, of land, to John Fisher, for a valuable consideration. That John Fisher, on the 9th day of August, 1847, by his written endorsement, on the deed from Glanton to him, for a valuable consideration, transferred all his right, title, interest and claim, to said land, to complainant and James Strong, whereby complainant and Strong became the joint owners of the land. That, subsequently, upon a division of lands, between Strong and complainant, this tract was allotted to complainant as his separate property.

That John J. Glanton, soon after his transfer of the land to Benjamin F. Glanton, removed to Texas, and, sometime thereafter, died; that, after the purchase made by complainant of Fisher *547lie entered upon the land, and made valuable improvements, under the assurance, and belief from the representations of Fisher, that a regular transfer of the certificate of purchase from the State had been made. That, afterwards, on the-day of December, 1851, the said Benjamin F. Glanton obtained letters of administration on the estate of John J. Glanton, and made application to the land agent for a certificate of purchase, in the name of John J. Glanton, which was issued and delivered to the said Benjamin F. Glanton, who, well knowing all the facts, fraudulently claims the land under said certificate, and is endeavoring to dispose of the same to innocent purchasers. The whole of the purchase money is still due to the State; all of which, he is willing, and-tenders, and offers to pay. That he bought the land in good faith, believing that, when such payment was made, the title would pass directly to him; and, in faith of such being the case, became and is an actual resident upon the lands, and has made thereon lasting and valuable improvements.

There would seem to be but little doubt of the existence of the several purchases and transfers, as alleged by complainant: but the point of contest is, as to what estater«passed by the deed from John J. Glanton to Benjamin F. Glanton. The complainants contend that they purchased the improvements upon the land, and also the equitable interest of John J. Glanton, in the land; that such was the agreement and understanding of the parties at the time that Benjamin F. Glanton purchased, and also at the subsequent purchases and transfers, and that the language .used in the deed of conveyance, from John J. to Benjamin F.- Glan-ton, is, by its legal import, aided by parol evidence of latent ambiguities, sufficient to convey the entire interest of John J. Glan-ton in the land and improvements thereon.

On the other hand, the defendants insist, that there is no latent ambiguity in the deed; that it clearly imports a conveyance of an improvement upon the land, not the land itself, and that parol evidence is inadmissible to explain, vary, or enlarge, the written contract.

*548Tbe whole question, therefore, turns upon the legal effect of the deed. The clause expressive of the interest or estate conveyed, is in the following words: “Also, all my right, title or claim of, in and to any improvement or improvements on public land, that are situate in Jackson county aforesaid.” This language is very indefinite, both with regard to the identity and extent of the improvements and of the nature and extent of the interest itself.. If, however, the1 grantor had improvements on public lands irr Jackson county, then they were conveyed, but there is nothing in the deed by which they could be identified or distinguished, and the grant is void for uncertainty, unless parol evidence is admissible for that purpose. And so with regard to the interest conveyed — it is all the grantor’s interest; but what ■ that interest is, is not defined.. Whatever interest the grantor had, was doubtless intended to be conveyed, and, unless parol evidence is admissible to show what that is, it would be taken in its popular sense, a possessory right, subject to the right of the United States, the owner of public land’s..

The complainant insists that !he has a right to- show, by parol,, what this interest was; that, although the legal title to the land was in the State, still, by virtue-of-the contract entered into by John J. Glanton, with the land agent, he had at the time am equity which attached to-the land, and which was conveyed under' the general terms, right, title, or claim, to any improvement, &c..

Whether this position, is correct or not, must depend upon the fact as to whether the language used by the contracting parties in the deed, when considered in connection with the circumstances connected with making the contract, maybe construed to embrace as well the- equitable interest acquired by John J. Glanton,. by virtue of his purchase from the State land agent, as the work and labor bestowed upon the-land in improving it- If so, then it may be introduced.

The rule is, that when the parties have deliberately put their agreement in writing, in such terms as import a legal obligation, without any ambiguity as to the object or extent of the agree*549ment, all oral testimony of conversations or declarations, before or at the time when it was reduced to writing, or afterwards, should be rejected: for, 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, nor substituted in its stead. Jordan ad. vs. Fenno, 13 Ark. 598; Hooper vs. Chism, 13 Ark. 449.

But, parol evidence may be introduced the more perfectly to understand the intent and meaning of the parties, and whatever indicates the nature of the subject, is a just medium of interpretation of the language and meaning of the parties in relation to* it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive, if considered in the abstract.

Mr. GbeeNleae, in his work on Evidence, (Yol. 1, page 386,) after a full investigation of this subject, remarks, “That, in all cases, in which parol evidence has been admitted in exposition of that which has been written, the principle of admission is, that the court may be placed, in regard to the surrounding circumstances, as nearly as possible in the situation of the party whose written language is to be interpreted — the question being, what did the person, thus circumstanced, mean by the language he has employed?,T

The extent and application of this rule, will be more fully understood by reference to a few of the adjudicated eases under it.

In the case of Eli vs. Adams, 19 Johnson's Rep. 317, Adams, an officer, had a writ of capias against one White, at the suit of Eli, who gave to Adams written instructions to show White as much indulgence as he could, with safety to himself and without hazarding the debt. Upon a suit against the officer, for an escape, the escape was not disputed; and tine only question was, whether parol evidence was admissible to explain the circumstances, under which the writing was given by Eli to the officer, in order to show the extent of the indulgence meant by the terms, “as much indulgence as he could," and it was held that such parol evidence *550was admissible. Judge Speetgeb said, “ these facts do not contradict the writing, but are essential to its right import and meaning.”

In the case of Hayden vs. Ewing, 1 B. Mon. 112, George Ewing devised the children of Si, and his wife Judah, to his daughter, Catharine Hayden. It was admitted that the terms of the will, unaffected by extraneous facts, would embrace all the children of Si and Judah, but contended that parol evidence was admissible to show that one of the children was not intended to be conveyed. In this case, the court said, “ At most, the facts relied on by Hayden, only make out a case of latent ambiguity, arising upon the application of the devise to the subject described in it, and, as such, it may be solved, not only by the facts, both in and out of the will, but also by parol evidence of intention, for it is a question, not of power, but of intent.”

In the case of Freeland vs. Burt, 1 Term. Rep. 701, where certain premises were leased, including a yard, by metes and bounds, and the question was, whether a cellar, under the yard, was or was not included in the lease, verbal evidence was held admissible to show, that, at the time of the lease, the cellar was in the occupancy of another tenant, and therefore that it could not have been intended by the parties that it should pass by the lease.

And so, also, where a house, or a mill, or a factory is conveyed eo noiwi/ne, and the question is, as to what was part and parcel thereof, and so passed by the deed, parol evidence is admissible. Roops vs. Barker, 4 Pick. 239

These decisions will suffice to show the application of the rule, and, in accordance with which, we will hold parol evidence in this case admissible, not to add to, or vary, the terms of the contract, but to show what the parties intended to convey by the use of terms, which, in the absence of such evidence, are susceptible of a different meaning from that intended by' the parties contracting.

Turning to the evidence — The witness Miller states that the understanding, at the time the contract was made, was that John *551J. Glanton conveyed all bis improvement and claim or interest in 320 acres of land, entered under tbe two dollar act, and also all bis interest or claim to an improvement called tbe Cook place, both of wbicb lay in Taylor’s Bay, in Jackson county. These two were all tbe claims owned by Glanton, witbin tbe knowledge of witness: tbe former of wbicb was known as tbe John Glanton place.

Witness Noddy states, that be was called upon, by John Glanton, to draw tbe deed, and did so; that John Glanton told bim that be bad sold bis negroes, stock, and all tbe land be owned, in Jackson county, to bis brother Ben. Glanton, and be wanted bim to draw up tbe deed; that be bad not tbe numbers of tbe land, but that be owned no other land in tbe county, and that tbe conveyance could be made sufficiently certain without tbe numbers. Witness read tbe deed in tbe presence of both parties. No objection was made to it. He is positive that it was tbe understanding of both parties, and they so agreed, that tbe instrument conveyed all tbe right, title, and interest, in tbe land, on wbicb John then lived, to Ben., and without any reservation of title in John. That tbe land lies in Taylor’s Bay, in Jackson county, and is known as tbe John J. Glanton place* Tbe land lies in township 9 north, of range 3 west — is not certain as to tbe numbers of tbe section, but believes it to be the east-half of section twenty-nine, containing three hundred and twenty acres. This was tbe only improvement owned by John J. Glan-ton, on public lands in said county, except one known as tbe Cook place. John Glanton died intestate without issue, leaving a mother, Margaret Noddy, and bis brother, Ben.. Glanton.

Witness Spradlin was present when Ben. Glanton sold tbe John Glanton place to Fisher, beard him tell Fisher that be had bought tbe place of bis brother, John J. Glanton; that bej Fisher, was to pay tbe State of Arkansas for tbe land, or to clear it out of tbe office at Little Nock; that be believed that a certificate bad issued from tbe State to bis brother for tbe land, but that it had been lost or mislaid, and bis brother John bad neglected to *552assign it over to Mm; but be would guaranty such certificate, and that it wouM be an easy matter for bim, Fisher, to get one from tbe office bimself. Ben. Glanton told witness that was tbe land be bad bought from John J. Glanton.

There is other evidence to tbe same effect; but, if admissible, this is most amply sufficient, in connection with tbe exhibit showing that John J. Glanton bad, before tbe conveyance to Ben. executed bis notes to tbe State in payment for this land, under a contract to purchase, which, even in tbe absence of a certificate of purchase, gave bim an equitable title to tbe land.

leaving out of question all that tbe witnesses say, about tbe agreement or understanding of tbe parties either before, at, or after, tbe deed was executed, and bolding tbe deed itself to be tbe sole repository of tbe contract, the facts and circumstances under which tbe deed was executed, and which may well be received in evidence, are, that John J. Glanton owned an improvement on public land, which bad been donated, by tbe United States, to tbe State of Arkansas, for purposes of internal improvement; to which, as an apjdicant under an act of tbe State Legislature, be bad acquired an equitable interest, which would, upon tbe payment of tbe purchase money, entitle bim to a perfect legal title, all of which was well known to both parties at tbe time they were contracting, and at tbe time tbe deed was executed; and that tbe reason why a fuller and more perfect description of tbe property conveyed, was not inserted, was because tbe parties bad not access, at tbe time, to tbe numbers of tbe land.

Taking these facts, then, in connection with tbe terms expressed in tbe deed, can there be a doubt but that John J. Glan-ton intended to sell bis entire interest in the land, such as it was, or that Ben. Glanton intended to purchase less than such entire interest ?

Tbe distinction, between an interest in an improvement on public land, and an interest in tbe land, attempted to be set up by Ben. Glanton, cannot exist: because, tbe owner of an improvement on public land, of necessity, has some interest in tbe land, *553on wliicb tbe improvement is situated — not a legal title, nor in ' most cases, an equitable title, such as may be perfected into a legal title, but still a possessory title, which, under the laws of this State, is recognized and transmissible by descent or deed, and it is also recognized by the laws of Congress, so far as to mate the improvement the basis of a preference claim to the land itself. All this title was vested in John J. Glanton, at the time of his transfer to Ben. Glanton, and was known to him. Suppose we attempt to separate the claim and interest in the improvement from that to the land, on which it is made. How can it be done? The possessory right to the land itself is inseparably connected with the improvement; so that, the sale of the one necessarily includes the other’. And when Ben. Glanton insists that he bought no interest, except the naked improvement, disconnected from all interest in the land, he made the whole transaction a stupid farce. "Would any man buy what he could not hold an hour? Did he intend to leave an outstanding interest in John J. Glanton, which would, at his pleasure, cut him off from the benefit of his purchase? Surely no one can believe it. Nor is such the meaning of the parties, as gathered from the whole transaction. John J. Glanton, in express terms, sold and conveyed “all his right, title, and dawn” to the improvement. It is shown by parol evidence what that interest was. The interest acquired from the State then attached, and, being a right and claim, it passed; b ecause he conveyed all his right, claim or interest. He not only, in express terms, conveyed all his right, &c., but he conveyed it forever: and covenanted that he had a good right to sell the same; and that it was free from all incum-brance; and, in order to free it from incumbrance, the claim acquired from the State must necessarily pass; or otherwise, there was an incumbrance at the time known to both parties.

The common sense of this transaction is, that the whole interest of John J. Glanton was intended to pass, and did pass by the deed to Ben. Glanton.

The answer of Ben. Glanton is a great sham. No one of com*554mon sense would have made such, a contract, as he says he made. His answer is flatly contradicted by some three or four witnesses, and is wholly irreconcilable with his transfer to Fisher; He does not pretend that he had any other title than that acquired by his deed from John J. Glanton, and yet he conveys to Fisher the very title which,, he says, he never contracted for, and never got of John J. Glanton. The question of fact, resolves itself into this: if he had such title as he conveyed to Fisher, he got it from John . J. Glanton, and his answer was false; or, if he did not get such : title from John J. Glanton, then, he perpetrated a fraud upon Fisher, by selling an estate which he did not possess.

The answer is, in fact, neither more nor less than an attempt to defeat a title that passed through him to the complainants, by .setting up the deficiency of his own title, in his individual right; and asserting title in himself, as administrator of the estate of his brother. He does not claim as heir to his brother, or if he did, it is evident that he could not set it up against the title of the complainants, who hold under his grantee. But the truth is, that if any interest or estate remained in John J. Glanton, after his conveyance to Ben., it passed, at John’s death, to his mother, ,Mrs. Roddy, who has entered her disclaimer in favor of complainants, leaving the sole ground of defence to rest upon his rights as administrator. It is not shown that the estate is in debt, or, if so, that there is not ample personal estate out of which to pay such debts; so that, in any event, Mrs. Roddy, who sets up no claim, is the only real defendant in interest.

So far as^the real equity of the case is concerned, it is rarely that a stronger case is made out than the present, or that slighter .gi’ounds of defence exist. Indeed, the only question that could seriously arise, grows out of the admissibility of parol evidence, which has already been discussed.

The objection, to the sufficiency of the allegations in the bill, to let in such proof, is not tenable. This is not a case of accident, mistake, or fraud, where the facts and circumstances are to .be set out, in order that it may be seen whether in fact, if proven, *555they amount to sucb as entitle tbe party to relief. Tbe equity-in this case, rests upon tbe contract in terms, and tbe parol evidence is introduced, not to prove another or a different contract, but to sbow wbat tbe contract really was.

In view of tbe whole case, we tbinb tbe decree well sustained by tbe proof and .tbe equity of tbe .case. 'Let tbe decree be affirmed.