In this case the only question which deserves consideration is, whether the Judge below was right in telling the jury that they might adopt as the true location of the “square acre, containing the family graveyard,” “that which had been fixed by Altman and Mixon, before the former conveyed to the latter.”

That he was, will require but a few words from me to show. There is nothing in the deed which defines the precise spot by lines and boundaries. No one would doubt that *212after the deed was executed, the parties might mark it out, an¿ jf p should happen to be a few feet longer or not exactly square, it would not be in the power of either to alter it. If ¿|one before the deed, the same result would seem to follow. Perhaps in this point of view, the case would stand upon stronger grounds. For the rule that a deed or any other instrument, when depending upon extrinsic facts for its construction, should be construed by or according to its subject matter, would properly apply. Here the question is, what square acre is meant? It is to contain the, family graveyard, is the only answer of the deed. Whether that is to be in the centre, or on one side, or at one end, is unascertained by the deed. If the parties fixed the location, by marking the lines and calling it a square acre, we do no violence to the words of the deed or any rule of construction, when we construe the deed to mean this precise square acre, thus marked out and ascertained, as the subject matter of the exception.

It is true, a deed is to be construed generally against the grantor, and, therefore, the exception carried out in his favor, is to receive no larger construction than the words will naturally import. But here the words are susceptible of the construction put upon them, because, by the parties’s measurement, this was a square acre. It is true, by mathematical rule, it afterwards turns out to be not exactly correct. The location made by the parties may be regarded as a square acre, and as thus coming within the words used, and, therefore, within the meaning of the grantor or grantee. When we ascertain thus the intent, the rule that the deed should be construed most strongly against the grantor, is subordinate to that.

The motion is dismissed.

Motion refused.

dissenting. It is, I think, now the law, that an exception of one acre, in the grant of a tract, is not void for uncertainty ; but may be available by election ; and that the right of election is in the grantor, as the person required to do the first act.

It may be, then, that by a sufficient exercise of his right of election, the plaintiff here had fixed the boundaries of the excepted acre, so as to embrace the walnut tree. But I cannot agree that the description contained in the exception can be so explained by reference to the acts of the parties, as to mean the parcel which had been marked out by Phillips.

In construing a deed or other writing, we may look to the acts of the parties, and to all surrounding circumstances, to ascertain the meaning of the words that were used, but not to establish an intention which has not been expressed. If *213the words written have a sensible meaning and some legal effect according to their natural signification, they cannot, byk extrinsic circumstances, be explained to have some other meaning or some different effect.

The description in this exception is not like that contained in a deed which refers to a plat. There the plat is part of the description, and taken together with other parts of the description, comprehends whatever was actually surveyed by the surveyor who made the plat. Often in ascertaining what was surveyed, great departures from the delineation and description are allowed, but all of these departures are justified by adhering to a certainty found in part of a description, in neglect of other parts which are rejected'as useless, and fall at last under the maxim, falsa demonstratio non nocet.

If the exception had been of my family graveyard, then it might have been shown what the family graveyard was, and a ditch around it, stakes marking it out, or other evidence which applied the description to the subject described, might have shown the meaning of the words that were used. On the other hand, “ one square acre, containing my family graveyard,” shows that the family graveyard is less than an acre, and that the acre must be laid off so as to contain it.—

But whether the graveyard or any particular point therein, shall be in the centre of the square, or on this or that side of it, and in what direction any line of the square shalLrun, are left uncertain. Infinite variety is admissible, subject only to this mathematical certainty, that the acre shall be square.—

This certainty no act of the parties or other evidence can explain away ; any more by making the square an oblong or a trapezium, than by making it a triangle.

What was said by Mixon, as it cannot serve to alter the description in the particular wherein it is exact, can, as a mere indication of intention, be of no avail. If it could be, then an exception by parol, confirmed by the assent of the grantee, would countervail the general words of a grant in writing.