Blount v. Bleker

• Court: Texas Court of Appeals
• Writing for the Court: Williams
• Citation: Blount v. Bleker, 35 S.W. 863, 13 Tex. Civ. App. 227 (Tex. App. 1896)
• Decision Date: 16 April 1896
• Parties: BLOUNT v. BLEKER et al.<SMALL><SUP>1</SUP></SMALL>

35 S.W. 863

BLOUNT v. BLEKER et al.¹

Court of Civil Appeals of Texas.

April 16, 1896.

Appeal from district court, Harris county; S. H. Brashear, Judge.

Action by E. A. Blount against Alice F. Bleker and others for the recovery of land, W. J. and J. J. Settegast being cited as plaintiff's warrantors. There was a judgment for defendants, and from that part in favor of plaintiff's warrantors he appeals. Reversed.

Wm. H. Crank, Sr., for appellant. Stewart, Stewart & Lockett, for appellee Settegast.

WILLIAMS, J.

Appellant brought this suit against appellee Alice Bleker (who subsequently married Caldwell) and others to recover a piece of land in Houston, alleging that defendants had evicted him. He also joined W. J. and J. J. Settegast, alleging that he had purchased the land from them under a deed with general warranty, paying $600 for the half block in question, and praying that, in case the other defendants recovered the land, he have judgment against the Settegasts on their warranty. Pending the suit a surveyor was appointed, and made a survey, and reported the result to the court. Thereupon appellant amended his pleadings, alleging that, according to the report, he only obtained under the deed from the Settegasts about one-tenth of the half block, and that the title of Bleker and others to the remainder was superior to his own, and alleged breach of warranty, and sought recovery therefor. His pleadings were also sufficient to entitle him to recover in equity, if not upon the warranty, the money paid for the land which he did not get, on the ground of fraud or mutual mistake of the parties as to the quantity of land conveyed. A fuller statement of the pleadings of plaintiff is unnecessary to develop the points raised and decided. The suit was brought within four years, but not within two years, from the accrual of the cause of action asserted, and limitation of two years was pleaded against it. On a trial by jury the adverse claimants of the land recovered all of the half block in question. The court instructed the jury, in substance, that the action could not be maintained on the warranty, and that, in its other aspect, the cause of action asserted was barred by limitation of two years. The decision depends upon the correctness of these propositions:

The sale was in gross, of block 90, and half of block 91; the price paid being $1,800, $1,200 of which was the price of block 90, and $600 the price of the half of 91. The Obedience Smith survey had been divided into lots, one of which was No. 29. This, in turn, had been divided between three owners into what are called the "northern one-third," the "middle one-third," and the "southern one-third," each of which contained several acres. Upon these subdivisions there had been platted blocks, which had been divided into lots. The land owned by the Settegasts was wholly within the northern one-third of lot 29, other persons owning the middle one-third. At the time of the sale to appellant, it was believed that the north half of block 91 was within the northern third of lot 29, and belonged to the Settegasts, but it was in fact in the middle third, and belonged to the parties who recovered it. The owners had, before the suit was brought, inclosed it and taken possession. Prior to that time there was nothing to mark the divisional lines between the various subdivisions. The deed from the Settegasts to appellant, for a recited consideration of $1,800, conveyed "all that certain tract of land lying and situated in the county of Harris and state of Texas, which is described as follows: All of block ninety (90) and all our interest in and to block ninety-one (91), which interest is one-half of said block ninety-one, more or less, being out of the north one-third of lot twenty-nine (29) of Obedience Smith survey." There was a general warranty of title to, "all and singular, the said premises." This was a warranty of title to whatever the deed undertook to convey. What that was must be ascertained from the premises of the deed. All of the language must be regarded, if all of it can be made to stand together; and, if there is an irreconcilable conflict between different parts, that must prevail which will carry out the intention of the parties as expressed in the instrument. There is no conflict between the language, "all of our interest," and that which follows,—"which interest is one-half." The last phrase defines the extent of the interest, and cannot be rejected. It was put there for a purpose, and is a very important part of the deed. It may be easily conceived that a party might be unwilling to accept a deed purporting to convey only the interest of the grantor, and that his objection would be removed by the insertion of words defining the interest. We cannot see that the language, taken together, is any less effectual to express the conveyance of substantially the half block than a simple specification of the half block. The words "more or less" cannot be made to destroy the language defining the interest granted. They are used to show that the quantity is approximately designated, and do not refer to the...