Hanks v. Hamman

• Decision Date: 12 January 1927
• Docket Number: (No. 702 - 4628.)
• Parties: HANKS v. HAMMAN et al.
• Court: Texas Supreme Court

Page 993

289 S.W. 993

HANKS v. HAMMAN et al.

(No. 702 - 4628.)

Commission of Appeals of Texas, Section B.

January 12, 1927.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

On motion for rehearing. Motion granted, former judgment set aside, and judgments of District Court and Court of Appeals (282 S. W. 935), reversed, and cause remanded to former for new trial.

For former opinion, see 288 S. W. 143.

POWELL, P. J.

We have carefully considered the motion for rehearing filed herein by defendants in error. In this case, as shown in our original opinion, defendants in error claim title to this property under either or both of two deeds: (1) From C. H. Cain, guardian of Wyatt Hanks, a minor, dated April 24, 1917; (2) a correction or ratification deed from Wyatt Hanks himself, dated February 8, 1925.

In our original opinion we held that the guardian's deed was void for want of description. It is admitted that the description in the deed did not describe any land actually owned by Hanks. In order, under any theory, to affirm the judgment of the trial court, the Court of Civil Appeals not only admitted and considered extrinsic evidence outside of and beyond the deed itself, but also had to discard what it termed the "false" description in the deed. The guardian's deed conveyed two acres out of the M. G. White League. Its location was further designated, but such description as was included in the deed identified land which did not belong to the minor. It was described in one portion of the deed as property belonging to him, but such statement was not true. There was no statement in the deed to the effect that if the land actually described therein did not in fact belong to the grantor, then it was intended by the grantor to convey some other two acres in the league which did, in fact, belong to him.

The cardinal principle involved in this case is that the intention of the grantor to convey a tract other than that described in the deed must be gathered from the deed itself. Intentions to convey other tracts than described in the deed will not be enforced as a mere matter of surmise or conjecture. The intention must be derived from the expressions from the terms of the deed itself. Otherwise, you would be conveying land by parol intention and violating the statute of frauds of this state.

When people buy land, they are charged with notice of a description in the deed of the very tract conveyed. If a purchaser accepts a deed, through carelessness or otherwise, to land which the grantor does not in fact own, his remedy would be upon the warranty. Such a purchaser clearly would not have the right to substitute some other tract of land which the grantor did own, unless it be under execution to satisfy a judgment under his warranty. What we have just stated is applicable where the deed is between parties capable of contracting in their own proper person. Certainly no harsher rule should be applied to deeds executed by guardians of minors. The mere fact that the minor, Hanks, did not own the land conveyed in the deed would not authorize the courts to force him to sell some other two acres which he did own, unless it could be said from the terms of the very deed itself that such was his intention. There is nothing in this deed showing any such intention. In taking a deed from a minor, through his guardian, a purchaser must be even more careful than if he was taking a title from a person contracting for himself. Ordinarily a guardian's deed does not contain a warranty of title, and the grantee is deprived of this protection.

In our original opinion we said:

"In the case at bar, there was no order of court authorizing the guardian to sell all of the land, in any survey or any county, belonging to Hanks. Nothing in the proceedings for the sale of the land referred to the land to be sold as the tract purchased from Harrison. If the probate orders had stated that the land to be sold was all the land owned in the White league by Hanks, or that it was the tract bought by him from Harrison, extrinsic evidence might have been admissible in aid of the description of the land actually intended to be sold."

We still adhere to those views. The probate orders connected with this sale did not state anywhere that the land...