majority">Ryan, C. J.

The controversy in this case turns on the title of the respective parties to the locus in quo. It is not material to consider whether the rulings of the court below would have been correct, had the parties both claimed title from a common source. For it is evident to us, as matter of law, that they do not.

The land had belonged to James Ludington. He conveyed it to Polly Ludington, a nonresident. She gave him a power of attorney to sell and convey, etc., with power of substitution. Both instruments were recorded in the proper county. After-*205wards, James Ludington made a loose, verbal agreement with one of the respondents to sell them the land. The respondents did not know of Polly Ludington’s title, and were dealing with James Ludington as the owner of the land. James Lud-ington did not disclose Polly Ludington’s title, was apparently acting in his own right, and referred the respondents to Brown as his agent. No substitution of Brown as attorney for Polly Ludington appears. The respondents went to Brown on James Ludington’s suggestion. Brown did not disclose Polly Luding-ton’s title, acted apparently as James Ludington’s agent, and gave the respondents James Ludington’s written contract to convey the land, signed in the name of James Ludington, by Brown as his attorney. This contract is dated in March, 1865, was not recorded, and was not so executed as to entitle it to record.

This was manifestly, in fact and in law, a transaction between James Ludington, in his own right, and the respondents. Whatever may have been the rights of Polly Ludington, as between her and James Ludington, it is very certain that, as between her and the respondents, she was not bound by the contract. She might ratify it, in divers ways, so as to bind herself, as between her and the respondents, to convey. No such facts appear. And, on the face of the contract, it is no more her contract, and she is no more bound by it, than if it had been executed, just as it was, by any stranger. Whatever the respondents could take under the contract, they took from James Ludington in his own right.

In November, 1866, the appellants took a contract for the sale and conveyance of the land from Polly Ludington, executed in her name by James Ludington as her attorney, soon after recorded in the proper county. In October, 1867, this contract ripened into a conveyance of the land by Polly Ludington to the appellants, executed in the samé way, and soon after recorded. The contract vested an equitable title, and the deed the legal estate, under Polly Ludington, in the appellants.

*206In the winter of 1867 - 8, the alleged trespasses were committed; they were justified under title ; and, on the trial, both parties relied on their title as above stated.

Parol evidence was given by the respondents tending to show that James Ludington and Brown had sold other lands of Polly Ludington by contracts similar to that taken by the respondents, which had been followed by conveyances to Polly Lud-ington, executed in the same way as her deed to the appellants. It is singular that, as parol evidence on the question was considered competent, neither Polly nor James Ludington nor Brown was examined to explain the double sale of the land by Polly and by James. But such evidence was admitted. And the circuit judge submitted to the jury, as a question of fact, on the evidence, whether the contract taken by the respondents was or was not the contract of Polly Ludington.

This -is fatal error. The construction and effect of the contract was matter of law for the court to pass upon. The rule is too familiar for discussion. Certainty and security of written title would be at an end, if the rule were otherwise.

It is possible that the respondents may have some equitable claim to a conveyance from Polly Ludington. It is possible that the appellants may be equitably bound by it. These are questions, if they exist, to be settled in an equitable proceeding, to which Polly and James Ludington and these appellants and respondents should be parties. But it is very certain that no such equitable remedy can be found, in an action between these parties guare 'clausum fregit, by submitting to the jury legal questions arising on the adverse chains of paper title.

The judgment of the court below must be reversed.

By the Court. — Judgment reversed.

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