Lenon v. Walker

Opmiok.— The first assignment of error presents the question, what is the proper construction of the deed in respect to the description of the land it purports to convey from Morgan to Stroud, under which the plaintiff claims? — 573 — The description of the deed is: “ One hundred acres of the land known in the division of the Morgan league as part of the lot No. 12, having the original lines of the said league for its north and south boundaries, and adjoined on the east by lot No. 11, known in the division, etc., as hereinafter set forth.” The partition referred to in the transcript has a plat attached which indicates plainly the location of the lot No. 12. Its north line is the boundary line of the league; its southern boundary is the Brazos river, also the boundary line of the league. On the east is the lot No. 11, on the west the lot No. 13. The lines which separate the lots are perpendicular to the southern boundary line of the league. Upon the face of the plat is marked its number, 12. A perfect and accurate description of the land it covers is given simply by reference to its number in the partition. Reference to its northern or southern boundary or what lot bounds it on the east is mere surplusage and adds nothing to proof of its identity. The description in the deed: aone hundred acres known in the division as part of that lot having the original lines of the league for its northern and southern boundaries, and adjoining on the east the lot No. 11,” if we assume, as seems to be the most natural assumption, that the grantor is endeavoring to designate the land he had sold, employs all the terms which would be necessary to do so, and the omission of which would render the description indefinite. The one hundred acres can, by that description, be accurately located. Its eastern boundary is the lot 11. Its northern and southern boundaries the league lines; and its western boundary, of course, to include one hundred acres adjoining the lot 11, should, it would seem, be a parallel line with the line of that lot. This would be readily understood by any competent surveyor, and he would have no hesitation, by the description in the deed, in so running the lines. And this rule has been often received and declared by the courts. The west half of a lot has been held to be — 574 — a definite description of a lot of land, and separates it into two parts by a line parallel with the east or west line. Schmitz v. Schmitz, 19 Wis., 226. The words used as west or east half are said to have a very precise meaning. So a deed for land which describes it as the northwest corner of a particular section was held good as conveying the land in the form of a square in that corner. Bybee v. Hagerman, 46 Ill., 519. And in Arnold v. Cauble, 49 Tex., 528, the descriptive terms, the north half, the south half, are recognized as vest-' ing separate interests in severalty in the grantees. In truth, this yule of describing lands in Texas as by the upper or lower half or portion of a tract of land, or such a number of acres off a particular end of a survey, is very common. It has, we believe, never been considered as creating a tenancy in common. To give such construction now to the terms would very greatly unsettle and disturb very many titles to lands in this state. If then, as we think, the description in this deed is sufficiently accurate to designate a separate plat of land, what is there in it to indicate a contrary design in the grantor? Had it been intended to convey an undivided interest, words expressive of that intent would doubtless have been used. The terms employed are not the natural ones indicative of such intention. “ One hundred acres of land, known in the division as part of the lot Ho. 12,” seems to us to be as specific a designation of a separate interest as could well be employed. It means one hundred acres, known in the division. How known? As adjoining the lot Ho. 12. Where the land is can be determined instantly by looking at the plat. But it is suggested by the appellant that the word “ known ” in the deed must apply to the lot and not to the one hundred acres, because there is no division of that one hundred marked in the plat. This would be to torture language out of its plain meaning. “ One hundred acres, known in the division as part of the lot Ho. 12,” is not an ambiguous expression; it is the one hun — 575 — d'red acres which is known, and not the lot. Again, it is said that the conclusion of the sentence, “having the northern and southern lines of the league for its boundaries, and adjoining lot Ho. 11,” must be held to apply to the lot Ho. 12. We have seen that this would be an unnecessary particularity of description of that lot. The thing to be described was the one hundred acres; the controlling subject in the sentence is the land, the part of the lot, and the plain sense of it is, that the description in the latter portion of the sentence has relation to that and that only. We have no hesitation in saying that, in our opinion, the land conveyed was not an undivided interest, and that, consequently, the first assignment of error is well taken. Walker had no right to a recovery of the whole four hundred acres. The second assignment is that the Basquez and Manchaca grants should have been held to be superior outstanding titles. Unless it were shown that the defendant occupied such relation towards the plaintiff as would preclude him from setting up a valid subsisting superior title to the land against him, we perceive no good reason why these grants, as presented, did not make out such a title. The objection offered by the appellant to their reception in evidence, because no offer was made to prove that said titles were valid and subsisting and.superior titles to plaintiff’s, was properly overruled. It is urged by appellee that something more than the mere production of the grant is necessary to establish the superiority of the “title;” he cites as authority 10 and 28 Tex. The title under which he claims from the government to Morgan, issued in 1835, is proven in this record by certified copies from the general land office, and so are the titles to Manchaca and Basquez. They are all grants from the sovereignty of the soil, authenticated as of equal dignity and imparting equal verity. But the titles to Basquez — 576 — and Manchaca are prior in point of time as issued in 1833, and are, therefore, upon the face of them, superior titles. And as is said in Williams v. Conger, 49 Tex., 602, in respect to a similar title, “ we know of no authority to warrant us in holding that the mere failure to pay taxes, or the laches or delay of the owner in bringing suit for the recovery of the land to which he has a legal title, will defeat his action where there has not been actual adverse possession for a sufficient length of time to support the plea of limitation.” And it is quite certain that there is no testimony to show that the titles of Manchaca and Basquez, which it is admitted cover the land in controversy, are barred by lapse of time. The partition of the George Morgan league among his heirs was made in 1840, when the lot No. 12 was allotted to George W. Morgan. There is no proof of possession by him or by any one claiming under him of that lot since that period. If we suppose that the Basquez and Manchaca titles were the superior titles to the land, this claim to the lot No. 12 would not be defeated by limitation because other persons occupying other portions of this grant might have acquired title to such other portions by adverse possession. Since the partition, which was made before the passage of the limitation law, no one claiming under the partition the lot No. 12 could derive any benefit from the possession of other parties holding other lots, or set up their possession of other lots to aid him in defeating the claim of the true owner of the lot No. 12 by the plea of limitation. Judging, then, from what appears in this record, there is nothing to impeach the validity of the Basquez and Manchaca titles, or defeat the conclusion that, being the elder, they have the better title. 3. But it remains to consider whether defendant’s relations to the plaintiff preclude him from setting this up. We have carefully considered the testimony, and we are — 577 — unable to find the least testimony to support the claim of the plaintiff that Lenon was at any time his tenant, or that the land was ever, before the date of Lenon’s letter to him declining to act as his tenant or agent, in the possession of the land, or Harrison or any person whatever. Harrison’s promise to take possession of the land and hold it for plaintiff was not equivalent to actual possession. 4. It is assigned for error that judgment was improperly rendered against Lenon as agent. If judgment was properly rendered against him at all, styling him agent of Lenon, etc., would not vitiate it. It was a description of the person. It bound no one but himself, and though certainly very unusual and irregular, was simply immaterial. Bevebsed and remanded.