Hearne v. Gillett

Watts, J. Com. Apr. An unlocated land certificate in this state is considered as personal property, and may be dealt with as such. Watkins v. Gilkerson, 10 Tex., 340; Evans v. Hardeman, 15 Tex., 480; Cox v. Bray, 28 Tex., 261; Stone v. Brown, 54 Tex., 334. But after such certificate has been located it can no longer be considered as personalty, but is then merged into, and becomes part of, the realty. In treating that question, Justice Moore, in Simpson v. Chapman, 45 Tex., 566, used the following language: “ But when it is located it loses this character. It then attaches with the land, and becomes a chattel real, and can be assigned and transferred by parol no more than the land itself. Instead of being merely property of itself, it is, like a deed, the evidence of title to the land upon which it is located. And though its sale or assignment subsequent to location, if in writing, but not otherwise, may in equity be held to operate as a transfer of the land, it is the land and not the certificate which is the thing sold. The right to the certificate is an incident to and necessarily accompanies a transfer of the land.” What is there said with reference to the subject is supported by a long line of decisions in this state. By the express terms of the statute the location and survey of a valid land certificate constitutes such color of title as will support the defense of three years’ limitation, and such title as will authorize the maintenance of the action of trespass to try title. While the general rule that the certificate will pass by a conveyance of the land upon which it is located is undoubtedly true, still it would be competent for the parties to reserve the certificate from the operation of the conveyance, and by floating it again restore its character of personalty. But if there is no such reservation, then the located certificate will pass with the land to the extent that it is located thereon. It is not incumbent upon the party claiming under such a conveyance to show that the certificate did pass with the land, but the burden is upon the claimant to show that it did not. Here it is claimed that the intention to reserve the certificate is plainly inferable from the language used in the second clause of the tripartite agreement, which is as follows: “on the execution of deeds of conveyance therefor reconveying to them (Watrous), or such [26] person as they might name in lieu of themselves, the title that was conveyed by said Daniel E. Watrous to said Columbus C. Hearne, and also under the title said grant of eleven leagues of land to said ¡Nixon.” The fifth clause of that agreement'is as follows: “It is further stipulated and agreed that all the parties hereto shall respectively execute to each other deeds of conveyance for all the right, claims and title that each may have or supposed to have had in and to the parcels or lots of ground that may be partitioned, allotted and set apart under the foregoing covenant and agreement, to each of the parties hereto, when said partition and allotments shall be made.” In pursuance of said agreement the partition was made and deeds executed. There was no reservation of the certificate in the deed executed by Mrs. Hearne to the appellant. But it is claimed that such reservation arises by implication from the language used in the second clause of the agreement, and especially when read in the light of the circumstances attending the transaction, and that inference is not affected by the fifth clause of the agreement. One of the primary rules of construction is, that the entire instrument must be taken and considered together. If the instrument, when thus considered, is susceptible of a reasonable construction, by which all its provisions are made to harmonize, and by which full effect is given to its various parts, then that will be considered the correct interpretation. To adopt the construction contended for by the appellant would result in giving to the second clause its utmost force and effect, without the least regard whatever to the subsequent clause. If it should be conceded that, standing alone, the reservation of the certificate might be implied from the former, still, if any effect is to be given to the latter, then that implication would be overcome. For, by the express terms of that clause, “ all the right, claims and title ” that each of the parties thereto had, or was supposed to have, to the particular land was to pass by the conveyances made in accordance therewith. As has been seen, the location of the certificate upon the land constituted a claim to the same; such title as would support a suit, or upon which to predicate a plea of three years’ limitation. Then, according to the plain import of the language used, it follows, to the extent the land conveyed by Mrs. Hearne was covered by the certificate, that it passed to the appellee with the land. That construction is in harmony with, and in no way militates against, the second clause of the agreement. [27] Nor do the attending circumstances aid the construction contended for by appellant. It was a compromise and settlement of conflicting claims, each party having a claim to the same land, and it was to finally settle and adjust the whole matter that the compromise was made. It could hardly be expected that the Watrous heirs would accept simply a reconveyance of the Ruiz title, leaving the Kennedy title outstanding and unsettled, when the obvious intention of the parties was to finally conclude all questions as to the land, so far as they were concerned. In our opinion the certificate, to the extent that it was located upon the land that Mrs. Hearne conveyed to appellee, passed to and was vested in him by reason of that conveyance. And as he was the owner of the certificate to that extent, he would have an interest in the land upon which it was subsequently located, proportioned to his interest in the certificate. Keyes v. H. & G. N. Railroad Co., 50 Tex., 17-1; Hermann v. Reynolds, 52 Tex., 395. Our conclusion is that there is no error in the judgment, and that it ought to be affirmed. Affirmed. [Opinion approved May 13, 1884.]