Panton v. Tefft. we can determine that there was a misapplication of the law to the facts found by the court rendering those decrees. They find that most of the defendants had been duly served with process, and the others had entered their appearance, and that they had failed to answer, and that the bills had been taken as confessed against them on default, and finds the amount due upon the mortgages. The decree then orders the payment of the money, and in case of a default of payment, that the mortgaged premises should be sold, to satisfy the amounts thus found. No misapplication of the law is perceived to these facts. For aught that appears from the decree, the court may have, upon an abundance of evidence, found that Mrs. Garrett had an interest less than a fee in the premises, and such as did not even require her to join in the deed; but if that were not so, the defect in the acknowledgment, does not appear from the record to have been found as a fact by the court in the case, and if it does appear, it is from the evidence in the case, and not from the facts found by the court. The mortgage and certificate were only the evidence, from which the court could find facts, upon which the law was applied. The court, on a bill of review, as we have seen from the cases referred to, could not have considered the evidence on the former hearing, and reverse or modify the decree of the court rendered in the original case. That could only be done, if erroneous, on appeal or error in the appellate tribunal. It is not insisted that this proceeding can be maintained upon the grounds of newly discovered evidence, nor is the bill framed with that view. We do not deem it necessary to discuss some other of the many questions presented, as the view we have taken of the case is necessarily conclusive of this proceeding. The decree of the court below must be affirmed. Decree affirmed. C. J. CATON took no part in the decision of this case. 22 366 197 1565 WILLIAM PANTON, Appellant, 2. ERASTUS TEFFT, Appellee. APPEAL FROM KANE. The word "also," in a deed, expressing what is granted thereby, means likewise, in like manner, in addition to, denoting that something is added to what pre cedes it. Parol evidence cannot be admitted to explain an ambiguity, which is patent. A sworn answer must be disproved by two witnesses. Panton v. Tefft. THE Complainant, Erastus Tefft, filed his bill in which it is set forth: That on the 10th day of December, 1847, Joseph Tefft and Benjamin W. Raymond, (who were seized in fee simple of about forty acres of land, situate at Clinton, in Kane county, on the west bank of Fox river, extending several rods above and below the dam, and also of the west half of the dam and water power thereby created), entered into an agreement with one G. M. Woodbury, to convey to him a part of said land, and 1,200 inches of the said water power, to be drawn from a race to be constructed; the same to be the first privilege of said water power, on condition that he should erect a stone flouring mill on said land, repair and raise the west half of said dam, make a bulk-head flume, etc., and construct a race from the dam to the south line of said land. That said Woodbury commenced work upon said mill, and having made considerable progress, afterwards, on the 9th day of April, 1849, he concluded an agreement with one Hiram J. Brown, by which he agreed to deed to said Brown as soon as he should obtain a deed from Tefft and Raymond, the piece of ground on which said mill now stands, and one-third of said 1,200 inches of water, and said Brown agreed to fulfill the covenants on the part of said Woodbury, in the said agreement between him and Tefft and Raymond. That said Brown thereupon entered upon the performance of said work. That afterwards, on the 5th day of February, A. D. 1853, the said Tefft and Raymond (still having the title in fee to said forty acres of land, and the west half of said dam and water power) for a valuable consideration, conveyed to complainant the said forty acres of land and the west half of said dam and water power, by warranty deed. That shortly after the purchase of said property by complainant, he erected on the opposite side of the street, and about 66 feet below the flouring mill built by said Brown, a large and expensive paper mill, the machinery of which is propelled by the water power created by said dam, and drawn from the race, extending a few rods further south. That since the completion of said paper mill the complainant has carried on and is desirous in future to carry on the business of paper making therein. That in constructing and putting said paper mill in operation, complainant has expended about $1,500.00, and in carrying it on is obliged to employ from ten to fourteen men and expend about $50 per day, and if deprived of the necessary water to propel said mill, he would suffer great injury in his said busi ness. Panton v. Tefft. That with the dam in repair and tight, a proper bulk-head, the race in repair and tight, and no waste at said flouring mill, at all seasons of the year there would be 600 inches of water for the use of the flouring mill, and all and more water for use of paper mill than needed, of the west half of the water power created by said dam. That in December, A. D. 1854, complainant obtained from said Woodbury a release of all his interest to the property, etc., mentioned in the said agreement. That on the 1st day of April, 1854, said Brown had completed the said flouring mill on said premises more particularly described in deed from complainant to said Brown. Had dug and fitted, so as to be used, though not made tight, the race from the dam to the south end of the flouring mill, and repaired to some extent the west half of dam and bulk-head, and put three run of stone in said mill, and three re-acting wheels to drive the same. That said mill covered the entire ground which Brown was to have by the agreement with Woodbury, and owing to the manner in which the mill was constructed, it would be an advantage to Brown to allow him to carry or conduct the water from the race (which came from the north along the west wall of the mill) across a small piece or part of complainant's land, lying next to the north-west corner of said flouring mill, on to the water-wheels of said mill. That the amount of water which Brown was to obtain by his contract with Woodbury, was found insufficient for the successful operation of said mill with said wheels. That Brown applied to complainant to execute to him a deed of said ground and 400 inches of water, and at same time solicited complainant to allow him 200 inches more of water, and privilege of conducting it across complainant's land adjoining mill at north-west corner. It was mutually agreed between complainant and Brown that said Brown should permit complainant, whenever he desired it, to remove the stones at north-west and north-east corners of said mill and erect another building adjoining, so that north wall of mill should be a partition wall, and that complainant should deed to said Brown the ground on which mill stands, and 600 inches of water of said water power, and grant him the privilege of conducting the same across the corner of complainant's lot, in manner before stated; and that the first and exclusive water privilege should be the amount necessary for the paper mill, and the said 600 inches for the flouring mill-and that the said mills should stand equal in drawing their respective amounts as above stated-and that said Brown should keep in repair the west half of dam and the race leading therefrom, to Panton v. Tefft. south side of flouring mill. And in case of fracture in either race or dam, Brown was to repair the same as soon as practicable on request. And that the title to the said 600 inches of water, ground, and the privilege of drawing the water aforesaid, should be subject to the faithful performance of the agreement to keep the said dam and race in repair; and for that purpose said Brown might take stone from complainant's quarry. That having agreed, they called upon S. Wilcox to prepare the necessary papers and explain their agreement to him, and he drew a deed conveying the ground on which said mill stands, and 600 inches of water, (and only 600 inches, as complainant and said Brown then understood it.) And also granting the privilege of drawing the water across complainant's land, as aforesaid; which said deed was executed and acknowledged by complainant and his wife, and delivered to said Brown. That said Brown, upon the delivery of said deed, sold and assigned to complainant, all his interest in said agreement, and to the land and property therein mentioned. That said Brown, after the 18th day of April, 1854, has had no title or interest in the ground on which said mill stands, or in the water power on the west side of said river, or any privilege except what he acquired by virtue of last named deed; and the only consideration for which was the erection of said mill, and making the repairs, etc., before stated. That said Brown owned and occupied the said mill until about the 1st day of June, 1854. That said Brown never pretended or claimed, during that time, any right to more than 600 inches of water. That on or about said 1st day of June, 1854, Brown sold and conveyed the said flouring mill and the 600 inches of water, and the rights and privileges contained in deed from complainant to Brown, to William Panton, the defendant. That Panton, before and at the time of purchase, understood the grants in his deed from Brown to be identical with those contained in deed from Tefft, the complainant, to Brown, and that neither deed conveyed more than 600 inches of water. That defendant has run the mill since his purchase that the three water wheels used in said mill with full head, will pass from 12 to 1,800 inches of water, and that defendant now uses, during ordinary business hours, more than 600 inches of water. That during low water there is not enough water left to propel the paper mill, and thereby occasions him great damage. That with dam and race out of repair, there would have been enough left still for said paper mill, if defendant had only used the 600 inches. Panton v. Tefft. That complainant requested defendant not to use more than the 600 inches, but defendant still continues to use more than said amount, and claims that he has a right by the terms of said deed to use sufficient for propelling his mill. That defendant may be required to answer the premises and allegations in the bill contained under oath. Prayer for injunction restraining defendant from using or drawing more than 600 inches of water, and that only on an equality with complainant, for a decree that the deeds may be corrected so as to express and conform to the true intent and meaning of the parties as before stated. And that defendant may be decreed to perform the covenants on his part, as contained in said deed, and upon failure so to do, that said deeds may be declared void, and said property, privileges, etc., may be declared forfeited to complainant, and for other and further relief, etc. The deed filed with the bill, so far as grants are concerned, is set out in the opinion. Panton, under oath, filed his answer, and says he has no knowledge of the contracts, rights or interests of the said Tefft and Raymond, G. M. Woodbury, Hiram J. Brown, as set forth in the bill, previous to the time he purchased the said mill property of the said Brown, except what he obtained from the records of Kane county, and from the deed given by said complainant to said Brown, dated 17th day of April, 1854, save as stated by his answer. Avers that some time and during the first year after this defendant went into possession of said mill, and since the said complainant began to interfere with and deprive this defendant of the rights and privileges in the premises purchased by him of said Brown, defendant has heard various statements in reference to what was understood by others to be the agreements between persons having or claiming to have interests in said premises previous to defendant's purchase of the same, in substance as follows: That some seven years ago, said Woodbury entered into some sort of a contract with said Tefft and Raymond to build a flouring mill on west side of river at Clinton, with four run of stone, and keep the west half of the dam and race in repair, for which said Tefft and Raymond were to deed him certain lots upon which to erect said mill, etc., and also 1,200 inches water for the use of the same-and that said Woodbury made a similar contract with Truman Gilbert, on east side of the river, and erected a mill with four run of stone on said east side, in 1850. That said Woodbury made a contract with one Hiram J. Brown, to build said mill on west side of river, according to his |