Watkins v. Tucker

GABBETT, Presiding Judge, Section B.^ — This suit was brought by J. B. Watkins, as plaintiff, against B. E. Tucker and Imogene Tucker, to correct an alleged mistake in the description of lands embraced in a certain deed of trust and a subsequent administrator’s deed. The petition alleged, in substance, that on the 1st day of April, 1882, one Mattie Tucker, with Milton A. Tucker and his wife Lucretia Tucker, borrowed the sum of $2500 from the J. B. Watkins Land Mortgage Company, and to secure the payment thereof executed a deed of trust- to plaintiff on 415 acres of land in Limestone County; *430 that a part of this land including that in controversy in this suit was the property of the said Mattie Tucker at the time the deed of trust was executed; that by a mistake in drawing the instrument seventy-one acres of the part belonging to said Mattie Tucker was erroneously left out by an exception after a description including the whole; that by the intention of the parties and the legal interpretation of the instrument the seventy-one acres should have been and was included in the conveyance; that the said Mattie A. Tucker afterward married one W. J. Lock, and in 1883 died testate, leaving her land in Limestone County to the defendants; that the administrator with the will annexed, under order of the Probate Court, sold the lands described in the trust deed to the plaintiff, but in making the deed followed the same description as set out in the deed of trust. There was prayer for decree reforming the trust deed and administrator’s deed as to description, and to have title vested in the plaintiff. Trial by jury resulted in a verdict and judgment for the defendants. Plaintiff excepted and gave notice of appeal, and has assigned errors for which he asks a reversal of the judgment of the court below. There is no statement of facts in the record. Appellant’s first and second assignments of error relate to the charge of the court, in which the jury were instructed, that it was not sufficient for the plaintiff to prove by a preponderance of the evidence that a mutual mistake was made in the trust deed conveying the property, but must prove this fact clearly and satisfactorily; and that prima facie the land described was the land actually intended to be conveyed, but this presumption could be overcome. Abstractly considered, the first portion of the charge would be error; but whether or not it would be error for which the judgment of the court below should be reversed we can not determine in the absence of a statement of facts, because it is not shown that the plaintiff was injured by the instruction. As to the latter portion of the charge, it does no more than inform the jury that the burden of proof was on the plaintiff, who was seeking to reform the deed of trust, and is not a charge upon the weight of the evidence; but if it were, we are without a statement of facts to enable us to determine whether or not the appellant has sustained any injury. Appellant has not incorporated in the record in any manner the deed of trust, nor the administrator’s deed, which he seeks to reform; but an assignment of error is based on a description of the land contained in the third paragraph of the charge, to the effect that the court should have construed the deeds as conveying the seventy-one acres of land in controversy, because, as it is contended, when a deed conveys a tract of laud by description, and then excepts á part of the tract granted, the exception is void as repugnant to the grant, and the whole tract passes by the deed. It appears that two larger tracts are de *431 scribed, and from both of them the seventy-one acres tract is excepted by metes and bounds. There is no repugnancy. Koenigheim v. Miles, 67 Texas, 121. The use of the word reserved instead of excepted does not change the effect of the instrument when it is clear that an exception was intended. 2 Dev. on Deeds, sec. 980. We conclude that the judgment of the court below should be affirmed. Affirmed. Adopted April 26, 1892.