*172By tbe Court,

This action was for the foreclosure of a mortgage upon certain mining property; and the sole question presented for review is as to the extent of ground which should be covered by the decree. The appellant’s grantors, upon the twenty-sixth of May, 1868, made a location of mining ground, the notice whereof appears in the books of the mining recorder, thus:

“ We, the undersigned, claim eight hundred feet (800) on this quartz ledge, together with all dips, spurs and angles, running in a southerly direction from this monument; two hundred feet for discovery and two hundred feet each by location. We also claim one hundred feet on each side of the ledge for mining purposes. This .shall be known as the Pocotillo Ledge and Belmont Company.”

On the twenty-eighth of December, of the same year, respond-mnt’s grantors made their location, which appears on the records, ■thus:

“ This is to certify that we, the undersigned, do locate and claim the first northern extension of the Pocotillo mine, claiming one thousand feet, with all the privileges of the White Pine District. This claim shall be known as the First Northern Extension of the Pocotillo Mine, District of White Pine, Lander County, State of Nevada.”

Subsequently, a dispute arose and litigation ensued between the present parties, growing out of the claim of appellant that there was a mistake in the record of its grantor’s notice; and it should have read, running in a northerly direction from the monument, instead of “ in a southerly direction,” as on the records. This litigation was compromised, and an agreement was executed between the parties, as follows:

“ Whereas, the Pocotillo Silver Mining Company, a corporation organized under the laws of the State of California, claims to be owner of certain mining ground situated in the county of White Pine, State of Nevada, known as the Pocotillo mine; and whereas, Peter Brandow claims to be the owner of the same ground and two hundred feet additional; and whereas, there has been a dispute ¡between the said parties as to the ownership of said ground, each *173claiming adversely to the other; and whereas, litigation has ensued between the said parties to determine the ownership of said mining claim, which litigation is not yet disposed of. Now, therefore, it is hei’ebv covenanted and agreed by and between the said Pocotillo Silver Mining Company of the one part, and the said Rrandow of the other part, as follows: That the said Brandow shall convey to the said Pocotillo Silver Mining Company all his right, title and interest in and to the said claim or mine. That in consideration of such conveyance, the said Pocotillo Mining Company shall, immediately upon the execution hereof, deliver to the said Brandow five hundred shares of the stock of said company, (the whole number of shares being four thousand) properly transferred on the books of the company to him the said Brandow or his assigns. That the said Pocotillo Silver Mining Company shall deliver to said Brandow the first fifteen thousand’dollars, in gold or silver coin, that shall be produced over and above working expenses from said mine, or the ores thereof now extracted, whether the same shall be reduced by said company or the ores sold at the dump for coin. It is further agreed, that upon the execution and delivery hereof, the said Pocotillo Silver Mining Company shall pay to the said Brandow one thousand dollars in gold coin.

“ And for the faithful performance and fulfillment hereof, these presents shall operate as a lien, by way of mortgage, upon said mine and the ores thereof, and may be enforced in law or equity as such, the said Pocotillo Silver Mining Company hereby granting and conveying said mine to said Brandow as a security for the fulfillment hereof.

“ And the said company further covenant and agree, that it will within thirty days commence to extract ores from said mine, and diligently prosecute the workings thereof, and that it will with all reasonable dispatch pay off the said sum of fifteen thousand dollars aforesaid, out of the net proceeds of said mine, as aforesaid.

“ And if said sum of fifteen thousand dollars shall not be paid on or before six months from date, the said Brandow shall be at liberty to commence proceedings for the foreclosure hereof, and for enforcing payment of the same against said mine, it being expressly understood that the said Brandow shall have recourse only against said *174mine in the event payment of said sum of fifteen thousand dollars is not made within the six months aforesaid.”

This was accompanied by a deed from respondent to appellant, the description in which recites the granted property as “ the First Northern Extension of Pocotillo, and being the same mine located on the twenty-eighth day of December, A. D. 1868, by J. S. Reece, II. W. Dunham, J. T. Quigley, W. J. Quigley and P. Fitzpatrick, and by them recorded on the same day in the mining records of said "White Pine District, in Book E, page 229.”

This somewhat voluminous statement of fact and recital of evidence has been made, as it really comprises the whole case, and is of itself 30 nearly decisive that very little more need be said. Default occurring in the payment specified in the agreement, respondent filed his bill and claimed a foreclosure upon eighteen hundred feet of mining ground, one thousand north and eight hundred south, alleging that such was the Pocotillo mine. The answer denied, and averred that the mine referred to in the agreement was only the one thousand feet north; making, as will be seen, no controversy about' the most northern two hundred feet.

It would seem that the position of the answer was so self-evident that there could be no room for doubt. But respondent was admitted to testify, and swore that the Pocotillo mine “ embraces eight hundred feet south of the Belmont monument (that referred to in the notice first recited) and one thousand feet north of the same monument. The defendant is in possession of all the said ground, and has been ever since about the fifteenth day of May, 1869. The Pocotillo Company has done work on the mine ; a portion of the work was done at the monument, and some work was done both north and south of the monument. The eight hundred feet and the one thousand feet comprise what is known as the Po-cotillo mine.”

Upon what theory this testimony was offered, or under what rule .of evidence received, is difficult to imagine, and as difficult to per■ceive what possible bearing it has upon the case. If taken at all its possible weight, it is entirely in the present; and if so understood, of course could not affect the fact or intent of the parties at the date of the agreement. If it is to be construed as referring *175back to tbe date of the papers, then it simply proves an absurdity; for if appellant was at that time claiming the eight hundred feet south, it had no controversy with respondent. If it was claiming the eight hundred feet north, as in fact it was, then it had at that time no pretence of right to the southern ground, no business upon* it, no authority to work it.

But upon the evidence no real conflict arises. The facts are plain, simple, coherent. The parties were disputing about the northern eight hundred feet; both claimed it; the agreement says that it was known as the Pocotillo mine, and about that ground and no other they litigated, compromised, agreed and conveyed. It is a legal impossibility that any other could have been intended, as • there was none other in dispute — none other about which any agreement was necessary, or could have been sensibly framed upon the basis set forth in the instrument quoted. The matter is too clear for argument.

Let the decree of the District Court be modified, as claimed by appellant, so as to' include the north one thousand feet of what is now known as the Pocotillo mine, and no more.