¶1(after stating the facts.) We are of the opinion that the judgment should be reversed, for the reason that the evidence conclusively shows that plaintiff was entitled to recover, in any event, some small amount for the use and occupation of his lot. The court, we think, also erred in permitting the deed from Beardsley to Skillern to be read as evidence to the jury. This deed described lots 1 and 2, block 23, conveyed to Skillern, as running from Main street west-142 feet to an alley. The lots were in fact only 134 feet long, and the intention of the parties to this deed clearly was not to convey land beyond the alley, for the deed refers to the number of lot and block, and described the lot as bounded by the alley
¶2“A deed is to be construed according to the intention of the parties as manifested by the entire instrument, although such construction may not comport with the language of a particular part of it.” When a deed contains two descriptions of the land conveyed which are inconsistent with each other, that description must control which best expresses the intention of the parties, as manifested by the whole instrument and the surrounding circumstances. Driscoll v. Green, 59 N. H. 101; Devlin, Deeds (2 Ed.) § 1038, and cases cited. Under these rules we think it is clear that the description of these lots in this deed as extending 142 feet must be rejected, and the description which bounds these lots on the west by the alley must control.
¶3But the purpose of introducing this deed was to convince the jury that the alley was 142 feet west of Main street, instead of 134 feet, as shown by the recorded town plat. It was allowed to be read to the jury as showing this fact, and they were probably misled by it to find that the house was located in the alley, and not upon the lot as claimed by plaintiff. Such a use of the deed as evidence was prejudicial to appellant. The question at issue in the case was whether the house erected by defendant was located upon the lot owned by plaintiff. There was no question as to the validity and correctness of the deed and plat attached thereto, by which the streets and alleys were originally dedicated and conveyed to the town of Nashville, which deed and plat showed that the alley in block 23 was only 134 feet west of Main street. The deed to Skillern, read in evidence by the defendant, was executed long after the streets and alleys had been established, and could not affect or change them, nor did it purport to do so. The recitals of this deed, therefore, had no bearing upon the issue, which, as stated above, related to the location of the house. Its introduction as evidence only tended to confuse and mislead the jury, and was therefore improper.
¶4The appellant has argued at some length that, even admitting the house in question to have been located in the alley, instead of upon his lot, he is still entitled to recover, but we do not feel called upon to consider that question, as it is not raised by the pleadings. Plaintiff sued the defendant for the use and occupation of lot No. 24. The town of Nashville denied that it had used or occupied said lot. No question as to the use and occupation of the alley was in issue.
¶5For the errors indicated, the judgment is reversed, and a new trial ordered.