[No. 554. October 30, 1894.]

A. M. GENTILE, PLAINTIFF IN ERROR, V. ELLIOTT CROSSAN AND MARGARET CROSSAN, DEFENDANTS IN ERROR.

EJECTMENT-BOUNDARY OF LAND, ADMISSIBILITY OF PAROL EVIDENCE TO EXPLAIN LATENT AMBIGUITY IN DEED DESCRIBING.-In an action of ejectment for the recovery of certain land, where the question involved was one of boundary, and not of title, which so much of the deed to the land as involved the disputed boundary described as "Y`del camino, a las lomas," meaning, translated into English, "and from the road to the hills," and there was strong evidence that the term "las lomas," meant in that vicinity, a certain kind of hills, but there was evidence offered of other terms used by the natives to describe hills, which the court excluded, and it was not certain what kind of hills were meant-Held: The use of the term "las lomas" constituted a latent ambiguity, which could be explained by parol, and the court erred in excluding from the consideration of the jury evidence of other terms used by the natives in describing irregularities of the earth's surface. Putnam v. Bond, 100 Mass. 60; Atkinson v. Cummins, 9 How. 479.

ERROR, from a judgment in favor of defendants, to the Second Judicial District Court, Bernalillo County. Judgment reversed.

The facts are stated in the opinion of the court.

CATRON & SPIESS for plaintiff in error.

The defendants are to be treated in this case as not being bona fide purchasers without notice. Moelle v. Sherwood, 148 S. S. 21. See, also, Id. 29.

The instructions in regard to a "recognized dividing line" acquiesced in by adjoining proprietors, "an established line," etc., being without any testimony to support them, were misleading, and from the persistency with which they were dwelt on by the court were calculated to prejudice the jury. C. R. R. & P. Co.

v. Housten, 95 U. S. 697; Michigan Bank v. Eldred, 9 Wall. 544; U. S. v. Breitling, 20 How. 252.

The court erred in so instructing as to practically exclude all consideration of the acts of parties as an aid to contemporaneous construction. Steinbach v. Stewart, 11 Wall. 566; Read v. Canal Co., 8 How. 289; Rhett v. Poe, 2 Id. 457.

Ordinarily a reference to what are called surrounding circumstances is allowed for the purpose of ascertaining the subject-matter of a contract, or explaining its terms. Maryland v. R. R. Co., 22 Wall. 113.

The court erred in refusing to allow the jury to consider the testimony as to the local meaning of the term "las lomas," and in instructing them that this term meant "both large and small hills." See Patch v. White, 117 U. S. 210; Thorington v. Smith, 8 Wall. 1; "Confederate Note Case," 19 Id. 548; Bradley v. Bockett Co., 13 Pet. 89; Lind v. Bower, 11 Cal. 194; Calaban v. Stanley, 57 Id. 476; Reamer v. Nesmith, 34 Id, 476; Singleton v. Insurance Co., 66 Mo. 63; Thompson v. Sloan, 35 Am. Dec. 546; Miller v. Stevens, 100 Mass. 518.

Where there is an election between two meanings, it is, properly, a question for the jury. Broom's Legal Maxims, pp. 617, 618; 4 Phil. on Ev. 517; Dorgan v. Weeks, 5 So. Rep. 580; Harvey v. Vandergrift, 89 Pa. St. 346; Greenl. on Ev., sec. 280.

CHILDERS & DOBSON and BERNARD S. RODEY for defendants in error.

If a question is objectionable in form or substance it must be objected to at the time it is submitted to the jury, and not afterward. Gerhart v. Swarty, 57 Wis. 24; Brooker v. Webber, 41 Ind. 426; Many v. Griswold, 21 Min. 506; Dupoint v. Starring, 42 Mich. 492.

Words can not be ambiguous because they are unintelligible to a man who can not read. 1 Best on Ev., p. 427.

Language, not technical, in a deed must be taken in its ordinary and usual meaning. Bradshaw v. Bradbury, 64 Mo. 337; 2 Devlin on Deeds, sec. 837.

The rule that gives to words, which by the known usage of trade or business have acquired a peculiar sense or meaning, a different and distinct meaning from their popular sense, is never applied except in suits between the parties to an instrument. 1 Greenl. Ev., sec. 279.

In all cases in which evidence of local usage has been admitted to vary the ordinary meaning of words used in a deed, it has been held necessary to show that the usage was known to the contracting parties, and that they contracted in reference to it. Best on Evidence.

It is always competent to give in evidence existing circumstances, such as the actual condition and situation of the land, in order to give a definite meaning to the language used in the deed, and to show the sense in which the particular words were probably used by the parties, especially in description, and when the meaning is doubtful the acts of the parties may be given in evidence to show the intent. Salisbury v. Andrews, 19 Pick. 250; 2 Devlin on Deeds, sec. 840.

Where a deed is uncertain in the description of its boundaries, courts will resort to the construction given to it by the parties to the instrument. Reed v. Proprietors of Locks and Canals, 8 How. 287.

The instruction only gives the general rules in questions of disputed boundaries, and is fully sustained by the following authorities: McArthur v. Henry, 35 Tex. 804; George v. Thomas, 16 Id. 74; Houston v. Sneed, 15 Id. 307; Singleton v. Whiteside, 5 Yerg, 18;

Goodridge v. Dustin, 5 Metc. 363; Adams v. Rockwell, 16 Wend. 285; Dibble v. Rogers, 13 Id. 536; Chew v. Morton, 10 Watts, 321; Gray v. Berry, 9 N. H. 473; Jackson v. Ogden, 7 Johns. 238; Gilchrist v. McGee, 3 Yerg. 455; Nichol v. Lyttle, 4 Id. 456.

If the use, by the court, of the words "you will find for the defendants" in its instructions, were merely inadvertent, then no injury was done plaintiff. 54 N. W. Rep. 470. See, also, 35 Pac. Rep. 453; 53 N. W. Rep. 316.

It is not error to refuse a request for a special finding, if the answer would not control a contrary general verdict. 14 S. E. Rep. 414; 29 N. E. Rep. 1106; 51 N. W. Rep. 232; 42 Mich. 492; 4 N. W. Rep. 160.

FREEMAN, J.-This is an action of ejectment brought by the plaintiff in error against the defendants in error to recover a certain piece of land, described in the declaration as lying in the suburbs of the city of Albuquerque. There was a verdict and judgment for the defendants, and plaintiff brings error. There are thirty assignments of error, but, for the purposes of the present determination, it is unnecessary to consider other than the assignments numbered from 7 to 15 inclusive.

The question involved is one of boundary, and not of title. So much of the deed as involves the disputed boundary is as follows: "And from the road to the hills." The original of the deed is in the Spanish language, in which language the clause just quoted reads, "Y del camino a las lomas." The word "lomas" means hills, and "las lomas" means "the hills." It was contended on the part of the defendants that the word "lomas" (hills) was used in the deed in its most ordinary sense, to mean a rise in the ground; and the

ADMISSIBILITY of

court in accordance with this view, in

parol evidence to structed the jury, that "both large and

explain latent

ambiguity in

boundary of

land.

deed describing small hills are included in the term 'las lomas.'" And again the jury were instructed that they had "no right, for the purpose of evading the terms of the deed, to characterize any hill, so long as it is a hill, even though it should happen to be a small one, as an 'altido' or 'matoral' or 'lomita.'' The court further instructed the jury that whenever "land rises from a comparatively level plain, and keeps on rising to a considerable height, until the same reaches a mesa or table-land, such rise in the ground. is necessarily a hill." And again the jury were instructed that "what las lomas are is a question of law; where las lomas are is a question of fact." In other words, it being conceded that plaintiff's land extended from a certain line easterly to the hills, the court instructed the jury, substantially, that the eastern boundary was marked by the first rise in the land; that a rise rise in the land constituted a hill; and that the plaintiff's land terminated at the western foot of the hills, or, in the language of the charge, "the boundary of the tract of land is the foot of the first hills encountered when running eastwardly from the highland road." If these instructions were not substantially and materially erroneous, the verdict was correct, and the judgment of the court below will have to be affirmed.

The plaintiff in error, however, insists that the term "las lomas," as used in the deed, means something more than a mere elevation or rise in the land, and, futhermore, that, assuming that "las lomas" was properly translated as meaning "the hills," such description involved an ambiguity, and entitled the plaintiff to show what hills were meant by the use of that term. The instructions of the court required the VOL. 7 N. M.-38