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The opinion of the court was delivered by

Brewer, J.:

Earnshaw brought ejectment against Crout, the owner, and Nall, his tenant, to recover possession of the west half of the southeast quarter of the northeast quarter of section thirty-four, township twelve, range thirty-four, in Johnson county, in the district court of said county, his peti*566tion being filed December 27, 1877. The defendants answered by a general denial, and in addition alleged a mutual mistake in the deed of conveyance from Solomon Houck (from whom both plaintiff and defendants claim title in this action) to James W. Lewis, and from Lewis to plaintiff in error Earnshaw. The deed from Houck to Lewis was dated March 1, 1863, and purported to convey in the language of said deed “ a certain piece or parcel of land, situated, lying and being in Johnson county, Kansas, to wit, the S.E.¿ of the N.W.J and the W.-½- of the S.E. -¼- of the N.E.¼ of sec. 34, T. 12, S., and R. 24, E., containing 60 acres.” The land as above described will more readily appear by reference to the following diagram:

Diagram of Section 34, Township 12, Dange 24, Johnson County, Kansas.

The testimony shows that William Holmes, of Kansas City, Mo., was the scrivener who drew both deeds — that *567is to say, from Houck to Lewis, and from Lewis to Earnshaw — and that, in drawing the latter deed, he merely copied the description from the former.

Houck sold and conveyed to Jacob Pearson, November 23d, 1866, by warranty deed, all of the said northeast quarter of said section 34, except the west half of the south-wesi quarter thereof, being one hundred and forty acres, and Pearson took immediate possession. Pearson sold and conveyed to Nicholas C. Crout, the present owner, all of said northeast quarter, except said west half of thé south-west quarter thereof, May 18th, 1868, and Crout took immediate possession of all of said land, and has been in the quiet, peaceable, exclusive and undisturbed possession of all the land so conveyed — including the twenty acres in dispute— until the commencement of this suit, and is now in possession.

The deed from Lewis to Earnshaw is dated February 24, 1872, and under said deed Earnshaw swears he took possession of and improved the sixty acres (being in a compact form) which he supposed he purchased and intended to purchase from Lewis. The deeds were all recorded shortly after their execution. The land was all vacant and unoccupied at the time of the deed from Houck to Lewis, and so remained until the deed from Houck to Pearson, when he took possession of the tract described in his deed. Lewis never occupied any of the land, and the sixty acres which Earnshaw supposed he was buying remained unoccupied until his purchase, when he took possession. The possession so held by plaintiff and defendant of the respective tracts remained unchallenged until the commencement of this action, in December, 1877. At that time plaintiff finding a tax-title ■outstanding on the west half of the southwest quarter of the northeast quarter of section 34, the east twenty acres of the land occupied by him, purchased such tax title and commenced an action to quiet the title of the heirs of Solomon Houck, and at the same time this action to recover possession ■of the west half of the southeast quarter of the northeast *568quarter of section 34, the tract in dispute. As to taxes, defendant Crout testified that he had paid all the taxes since the date of his purchase, on all the land in his deed, including the tract in dispute, and had the receipts therefor in his possession; while Lewis testified that he paid the taxes on the disputed tract from 1864 to 1872 inclusive, except during the years 1865, 1866, 1867, 1868, and 1869, and that for those years some person without his knowledge or consent paid them.

The court found' for the defendants, that Crout was the owner and entitled to the possession; that he had been in actual possession since November, 1866; that plaintiff had never had actual possession and never claimed a right thereto, •till the commencement of this action; that there was a mistake in the description of the land intended to be conveyed in the deed from Lewis to plaintiff, and that plaintiff acquired no title by virtue of said deed to said land as against the defendants. It then rendered judgment that defendant Crout was the owner, and entitled to possession, and that the defendants recover costs.

It seems to us that there is one principal question: Does the evidence sustain the conclusions of the court? Upon the record, clearly plaintiff had the better title. Houck’s deed to Lewis was prior in date and first of record. There was no actual possession at the time by any one, and therefore no constructive notice of any equities. Of course, a mutual mistake is a mistake by each. If either party intended the tract actually described, there was no mutual mistake; and in the absence of fraud the conveyance must stand as of the land described. Now, of the three parties to the two deeds under which plaintiff claims, the plaintiff testifies that he intended to purchase, and supposed he was purchasing, the west half of the southwest quarter, and not the disputed tract. On the other hand, Lewis deposes that he intended to purchase from Houck, and to convey to plaintiff, the very land described; and Houck was dead, and could not be heard as to his intentions. Nevertheless, there is evidence tending, to show that *569both Houck and Lewis intended the west half of the southwest quarter, and that there was simply an error on the part of the scrivener in drawing the deed. Lewis does not claim that he examined and selected from personal observation the two tracts described. The land was all vacant. Ordinarily, a party purchasing would prefer land in one body, rather than in two tracts with an intervening forty acres. If such separate tracts were in fact selected, there must have been some reason — something in the character of the tracts, or their location, which caused the selection. If such facts existed, Lewis could have named them, and thus, by the reasons therefor, have sustained the fact of an actual selection. This, it is true, is-but negative evidence, but is entitled to weight. We are justified in assuming that these men did act as men will ordinarily act; and if the act be a departure from ordinary conduct, special reasons must exist therefor, and the absence of any such special reasons casts a doubt as to the existence of the alleged act. Further, the deed itself carries strong internal evidence to the contrary of Lewis’s testimony. It commences the description thus: “A certain piece or parcel of land,” and closes with, “containing sixty acres.” Now if the disputed tract was intended, there were two certain pieces or parcels. We use the term “ one certain piece or parcel ” to describe a single body of land, and contiguous tract, and not two distinct tracts, separated by intervening land held under different ownership. It will be noticed that there was no unity of use, for the lands were vacant, and not simply two parts of one farm. There was no unity in situation — no unity in fact at all — nothing from which a oneness in description- could be aptly implied. Further, this one piece or parcel is described as containing sixty acres. These words close the description, and add some force to the implication of an intentional unity in the tract, for if two separate tracts were intended, we should ordinarily look for the quantum of acres to be added to each description, the one here of forty, and the other of twenty acres.

Again, as evidence of the understanding of Houck, the grantor, it appears that three years later he conveyed this *570•disputed tract to Pearson. The description in this deed is of the entire quarter except twenty acres, the west half of the southwest quarter thereof. This of course tends to indicate his. understanding of what he had conveyed to Lewis, for it will not be' presumed that he was acting dishonestly in these transactions; and that he did not, appears also from the fact that he never conveyed this west half of the southwest quarter, and plaintiff’s action to quiet title was against his unknown heirs.

Further, it should be noticed that Lewis was a resident of Howard county, Missouri, remote from the land, so that his dealings with it and understanding of it would be more likely based upon records and deeds than upon actual knowledge and selection. Still further, the long-continued occupation and acquiescence is a circumstance to be considered as throwing light upon remote transactions like this. Taking .all these matters into consideration, we are unable to say that there was not testimony from which the court could fairly hold that there was a mutual mistake in the description in the two deeds under which plaintiff claims, and that the tract in dispute was never intended to be conveyed by them.

These conclusions obviate the necessity of any inquiry into the proposition discussed by counsel for plaintiff and fortified with many citations, that if Plouck or Lewis intended the •disputed tract in the first deed, that tract passed by the deed to plaintiff, notwithstanding his mistaken supposition that •the latter could, notwithstanding his intention, avail himself •of all of Lewis’s rights, and take the very land he owned and in fact conveyed, for if the mistake runs through the •entire chain of title, there is nothing back of his own deed upon which plaintiff can rest. Further, the failure to make Lewis a party cannot cut off defendant from all defenses, legal or equitable, which he may have to plaintiff’s claim of possession. The judgment,does not attempt in terms to reform any deeds, but simply adjudges defendant’s title and right of possession to be good. Whether Lewis is bound by this judgment or not, and what effect it may have upon plain*571tiff’s liability to him for the balance of the purchase-money not yet paid, are questions not before us. All that this judgment attempts to do, is to establish defendant’s right of possession as against plaintiff’s claim. The effect of this adjudication upon those not parties to this action must be considered in other actions.

The judgment'will be affirmed.

All the Justices concurring.

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