Blackburn v. McDonald

A. S. Walker, J. The only question presented is the sufficiency of the deed set out in the petition. The appellee insists that it is void for uncertainty; 'and urges that the allegation of mistake in the number of acres, as stated in the amendments to have occurred in writing, the deed, changes the suit into a proceeding to correct,such, mistake, and without making the grantor a party. To this we cannot assent. In suing for the land in trespass to try title the plaintiffs are entitled to a liberal construction of the terms of description; such also follows from the disposition of the case.upon demurrer. The description in the deed is supplemented by allegations to which parol evidence may be admitted. The question cannot be considered an open one. In 46 Tex., 335, Roberts, C. J., delivering the opinion (Flanagan v. Boggess), in discussing the validity of a tax deed, containing [358] as description “ six hundred and twenty acres of the head-right of David Brown,” it is stated, “the deed in the case before us does not purport to convey an undivided part of a larger tract of land as in the case of Wofford v. McKinna. The ‘six hundred and twenty acres of the headright of David Brown ’ may be all of the D. Brown headright located. in that survey, the balance being elsewhere,” etc. Referring to the case of Wofford v. McKinna, 23 Tex., 45, Justice Wheeler discusses the principles controlling' such deficient descriptions, as follows: “A grant by the owner of a certain number of acres in a particular tract would confer the right of election upon the grantee, and authorize him to locate the quantity upon any part of the tract he saw proper to elect, upon the principle that a conveyance must be held to pass some interest, if such effect may be given to it, consistently with the rules of law; and that if uncertain or ambiguous it must be construed most .strongly against the grantor. But in this respect, it is said, there is a wide difference between a conveyance by the owner and by a public officer. The former may sell upon his own terms, and may confer a right of election upon his grantee.” The right of the grantee to explain the intent by parol evidence to aid a latent ambiguity in description, recognized as existing in deeds made by the owner, obtains equally in deeds for a good as for a valuable consideration. The limitation upon deeds by public officers is based upon the want of power of such officers. By the amendments to the petition in this case the land is described as being in Robertson countjq state of Texas, five hundred and forty acres of the H. Reed survey, all she had on the survey; being that deeded to her and on which she resided; described by metes and bounds. • Such descrijftion fully answers the requisites when sus- ’ tained by testimony, validating a deed equally indefinite as that described. It does not appear but that five hundred and forty acres was all of the headright. of H. Reed, located in Robertson county. It is not perceived why a deed by the owner for a definite [359] number of acres out of a larger tract sufficiently indicated would not convey a right to that number of acres, with the right to select by the grantee, from the force of the terms of the conveyance; or with right to enforce a partition with the co-owners of the tract. It is believed that by custom much conveyancing has been of this nature, and to hold, as between parties, such deeds invalid would unsettle land titles to an injurious extent. Such deeds have not in terms been declared invalid; yet when supported they have been upheld upon other principles than those enunciated in McKinna v. Wofford. The true rule is believed to be, when the land is described by number of acres, grant and county, and the grantor owned, at date of his grant, that or a less number of acre§, the deed would convey the land, such facts being shown. Where a larger number of acres was owned than that granted, then the grantee would by the deed become a co-owner or tenant in common with right to partition, or with right to select the quantity from the larger tract. “If the owner of a tract convey a number of acres less than the whole, without any designation of their locality, the grantee thereby acquires an interest in the whole tract, as a tenant in common with the grantor.” Freeman on Co-tenancy & Partition, § 96 and authorities. The discussion in Norris v. Hunt, 51 Tex., 609, was with reference to a sale by the United States marshal; and not authoritative as to deeds by the owner, as above stated. [Opinion delivered May 31, 1880.] The subject is discussed or noticed in the following cases: Flanagan v. Boggess, 46 Tex., 335; Wofford v. McKinna, 23 Tex., 36; Kilpatrick v. Sisneros, 23 Tex., 136; Ragsdale v. Robinson, 48 Tex., 379; Kingston v. Pickens, 46 Tex., 99; Wilson v. Smith, 50 Tex., 369; Norris v. Hunt, 51 Tex., 614; Rainbolt et al. v. March, 52 Tex., 246; Davenport v. Chilton, 25 Tex., 519; Presley v. Testard, 29 Tax., 201; Early v. Sterrett, 18 Tex., 116; Berry v. Wright, 14 Tex., 270. For the error in sustaining the demurrer to the petition, the judgment below should be reversed. Reversed and remanded.