Morgan v. MacE

WILLSON, O. J. (after stating the facts as above). The theory upon .which defendants in error think the judgment was warranted seems to be that there was testimony authorizing findings that Goldoni intended to sell and Sanders to buy only that part of lot 6 inclosed as stated above, and that Sanders'intended to sell and plaintiff in error to buy only that part. It is true that testimony tending to show Goldoni’s intention to have been as claimed was before the court, but we think it was erroneously admitted, and that the court should not have considered it in determining the rights of the parties. In the deeds from Goldoni to Sanders and from Sanders to plaintiff in error the property conveyed was described as “lot (quoting) 6, in block 2, Ghio’s addition to the city of Texar-kana.” No doubt as to the identity of the property intended to be conveyed arose from that description, and no doubt as to its identity arose when the description was applied to the ground. It was lot 6 — all of it.. Therefore testimony aliunde the deeds to show the intention to have been to' convey less than all of the lot was inadmissible. Davis v. George, 104 Tex. 106, 134 S. W. 326. In the case cited the court said: “When the question is, What land did the deed convey? its legal effect between the parties is the very test invoked, and it must, therefore, answer the inquiry by its own terms, since no land was conveyed except by it and it conveys no land except that which by its terms it undertook to convey. Parol evidence, whether brought by parties or strangers, cannot make it convey land which it does not purport to convey nor prevent it from conveying that which it does clearly purport to convey.” - We think, therefore, it must be said that, it conclusively appeared from the testimony the trial court had a right to consider that plaintiff in error owned all of lot 6; and we think it also conclusively appeared that the strip of land in controversy was a part of that lot. It follows, of course, that we think the court erred when he refused plaintiff in error relief she prayed for and awarded defendants in error a recovery of said strip. We have examined Bell v. Wright, 94 Tex. 407, 60 S. W. 873, cited by defendants in error as a case supporting their contention to the contrary of the conclusion reached by us. As we understand it that case! was unlike this one, in that, when an attempt was made to apply the description in the deed to the ground, there was doubt as to whether calls in the deed for streets specified were intended to be for the boundaries of the streets according to a technical survey thereof or for their boundaries as indicated by fences constructed and for many years maintained thereon by owners of lots abutting on the streets. In answering the question certified to them in that case the Supreme Gourt, after saying they did not regard the description in' the deed in question there “as presenting conflicting calls” or any' “uncertainty whatever,” continued: “The doubt as to the location of the property conveyed by it arises in the attempt to apply the descriptive particulars to the ground. When it is sought to locate the land conveyed, it is found that the lines of the lots and streets, as indicated by fences, etc., upon the ground, differ from those imaginary ones fixed when the lots and streets were first laid out. The deed simply names the numbers of the lots and the streets, without mentioning either the fences and other objects on the ground, or the original survey, to determine their location; and the question at once arises, Did the parties refer to the lots’and streets as indicated by the former or the latter? The ambiguity thus disclosed is of that kind ‘which extraneous evidence develops, and which extraneous evidence must theréfore solve.’ Linney v. Wood, 66 Tex. 27, 17 S. W. 244. All of the description may be applied to either set of lines, as regard for the intention of the parties * * * may require. The question is, What land did the parties mean to identify by the description given? It being such as would include the land intended, when the intent is ascertained. The numbers given to the lots in the deeds should therefore be held to include the land embraced in the lots as known to the parties by those numbers, if their contract was made with reference to them; there being nothing in the language of the instrument to forbid this application of it.” The judgment will be reversed; and judgment would be rendered here in plaintiff in error’s favor but for the fact that we think defendants in error are entitled to have the court below determine the issue made by their claim that they had in good faith made improvements on the part of lot 6 in controversy, for which they were entitled to be paid. Therefore the cause will, instead, be remanded to said court with instructions to award plaintiff in error a recovery of the strip of land in dispute in the judgment he renders after determining the rights of the [1097] parties with reference to said claim for improvements. Footnotes [1] <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes