¶1That, as a general rule, it is the duty of the court to instruct the jury upon the legal effect of written evidence, admits of no doubt, but it is also true that there are exceptions to that general rule. When the effect of the writing does not depend entirely upon the construction or meaning of its terms, but upon extrinsic facts and circumstances, then it becomes the duty of the court to submit for the consideration of the jury the instrument, together with the attending facts and circumstances adduced in evidence, with such instructions upon the legal effect of the instrument as would meet the various phases presented by the extrinsic evidence. Etting v. Bank of United States, 11 Wheat., 59; Thompson on Charging the Jury, pp. 18, 19.
¶2The correct construction and true meaning of the provision in the second deed from Mrs. McNutt to Bucker depends upon the extrinsic facts and circumstances connected with and surrounding the execution of that deed. Considering that provision alone, it would be a matter of grave doubt what was intended or meant to be accomplished by it. Three years prior to the making of this instrument, Mrs. McNutt had, by formal deed, conveyed the land to Bucker, -and in which she had acknowledged the receipt of the purchase money. The inquiry would naturally arise, as to what claim in law or equity she had upon the land at that time to be released to Bucker, save and except the implied equitable lien for the purchase money? That is, without a knowledge of the extrinsic facts and circumstances, the court could not, from an examination of this unusual provision, say with any degree of certainty whether it did or not release the vendor’s lien. Certainly that provision should not be treated as meaningless, if, looking to the facts and circumstances surrounding the transaction, it would be susceptible of some other construction. Therefore, to arrive at its meaning and construction, it becomes necessary to resort to extrinsic evidence, so as to ascertain" the facts and circumstances connected with and surrounding the execution of that deed. And to arrive at the very truth with respect to these attending facts and circumstances, the jury should pass upon the credibility of the witness and the weight to be given to the evidence.
¶3The court should have confined counsel to a discussion of the issues made by the pleadings, and to which some evidence had been adduced. There was no issue of fraud presented by the pleadings in this case, and any discussion of fraud by counsel would be irregular, and not calculated to aid in a fair and just administration of the law.
¶4We are of the opinion that the court erred in charging that the lien was not released by the second deed to Eucker. That question should have been submitted in the manner heretofore indicated.
¶5The judgment ought to be reversed and the cause remanded.
¶6Eevedsed and demanded.