Sellers v. Reed

Moore, Associate Justice. There can be no doubt that Henry and Moore, by their deeds to Wilson and Cobb, conveyed all the land included in the Patrick Allison grant. These deeds bear date on the same day, and show upon their faces that the sales to Wilson and Cobb were contemporaneous transactions, and also show that the tracts of land conveyed to them bound upon each other. Unless we totally discard the description of the premises intended to be conveyed, contained in these deeds, it is plainly impossible to admit that they have a common boundary, without also conceding that they include the entire Allison survey. The fact that there is more land in the survey than the parties to these deeds supposed when they were executed, is, in this case, a matter of no importance whatever. There is certainly no such discrepancy in the [379] quantity of land, supposed to be embraced in the survey, and that which it is actually found to include, as to raise a presumption of mistake or fraud in the deeds; and if there were, only the grantees, or some one representing them, conld complain. The mention in these deeds of the number of acres sold to the purchasers, shows the quantity of land supposed at the time, no doubt, to be in the Allison grant, and the relative proportions of it purchased by the vendees, Wilson and Cobb, and was intended as a guide in determining where the line dividing the land between them should be fixed. The deeds to Wilson and Cobb were, as we have said, contemporaneous, and have mutual reference to each other They were intended to include all of the land embraced in the Allison grant; and whether it turns out that there is a greater or less number of acres in the grant than was supposed when the deeds were executed, no preference can be given to the one over the other, unless other facts than those exhibited by the deeds are shown which will warrant such preference. And unless this can be done, it follows, as was held in the case of Welder v. Carroll, 29 Tex., 317, that the seventy-four and four-tenths acres, which the Patrick Allison grant is found to contain, more than was supposed when the deeds were made, should be divided between the parties in proportion to the quantity of land called for in their deeds. It is insisted by counsel for appellants,' that the excess should be partitioned in proportion to-the relative amounts of purchase-money paid by the vendees. We are cited, however, to no case where this has been taken as the guide in apportioning the excess or diminution in the quantity of land to be divided between purchasers. In the absence of evidence showing that equity requires the application of a different rule, we think the apportionment should be made, as was held in the case cited, by reference to the quantity of land called for in the deeds, rather than the amounts paid for it by the parties. [380] The question at issue between these parties is, the proper . location of their common boundary, and is to he determined by the proper construction of the boundaries and descriptions of the land furnished by their deeds. The price paid by the purchasers for their respective tracts is a matter in which they have no mutual interest, hut is altogether between them and their vendor. If the sale was by the acre, and not in gross, as between the vendor and vendee there would he a just ground to demand an increase or diminution of the amount to be paid for the land; hut it is not seen how the fact that one of the tracts was worth more than the other, or that one of the vendees put a higher estimate upon it than the other, should affect, as between them, the apportionment of the excess or deficit of quantity of the entire tract. The inference is, that the parties contracted for the land conveyed by their deeds, and that the number of acres mentioned was merely the estimate of quantity (if the sale was by the acre) by which the price was fixed. It is therefore much more presumable that the purchaser has gotten the land for which he in fact contracted, when its boundaries are defined by reference to those parts of the deed designating and describing the land conveyed, than from the amount agreed to be paid for it, and especially as this is a matter in which the other purchaser is in no way interested. The judgment is reversed and the cause remanded. Reversed and remanded.