W. T. Carter & Bro. v. Ewers

• Decision Date: 26 July 1939
• Docket Number: No. 1665-6807.,1665-6807.
• Citation: 131 S.W.2d 86
• Parties: W. T. CARTER & BRO. et al. v. EWERS.
• Court: Texas Supreme Court

131 S.W.2d 86

W. T. CARTER & BRO. et al. v. EWERS.

No. 1665-6807.

Commission of Appeals of Texas, Section B.

July 26, 1939.

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

Trespass to try title by W. T. Carter & Brother and others against J. M. Ewers. To review a judgment of the Court of Civil Appeals, 72 S.W.2d 963, reversing a judgment in favor of the plaintiffs and remanding the case for a new trial, the plaintiffs bring error.

Judgment of the Court of Civil Appeals affirmed, and trial court's judgment reversed and cause remanded with instructions.

J. A. Platt, of Houston, S. H. German, of Austin, Baker, Botts, Andrews & Wharton, of Houston, and M. M. Feagin, of Livingston, for plaintiffs in error.

Chandler & Chandler, of Stephenville, and Jones & Lowe, of Livingston, for defendant in error.

TAYLOR, Commissioner.

This is a trespass to try title suit. The ultimate question presented here is whether the deed in question is void on account of uncertainty of description of the interest purported to be conveyed in the land described. The deed was executed in July, 1882, by W. D. Ewers and N. M. Ewers to Mollie Pinkard. If valid, the title to the interest purported to be conveyed has passed by mesne conveyance to W. T. Carter & Bro., a partnership, and West Lumber Company, plaintiffs in error, and the trial court correctly rendered judgment in their favor; if invalid, J. M. Ewers, defendant in error, is entitled to judgment as rendered in his favor by the Court of Civil Appeals upon original hearing (72 S.W.2d 963), unless, as held by that court on rehearing (72 S.W.2d 964), the cause should be remanded for trial of the undetermined issue of limitation pleaded by plaintiffs in error.

The land described in the deed is "an undivided interest in and to a subdivision of 200 acres of a survey in the name of Swiny, situated in the County of Polk, State of Texas."

The description of the 200-acre subdivision is such that if the deed had purported to convey the subdivision itself rather than "an undivided interest" therein, the instrument would not fail as a conveyance on account of uncertainty of description, as was in effect held by the Court of Civil Appeals. It contains no language however indicating the extent of the interest in question, other than that necessitating the conclusion that it is an undivided interest less than the whole in the subdivision described. Whether a half, a fifth or a tenth, or any other certain interest, was intended to be conveyed, is not indicated. It may be added that neither the description above quoted, nor the deed itself, contains any word or words of ownership. It will be observed that the descriptive words employed by the grantors are in themselves indeterminative.

While we are cited to no case of parallel facts decided by the courts of this State and have found none, and the question involved presents some difficulty, it may be determined upon established principles of law with respect to the statutory requirement that a conveyance of land shall be declared in writing. Art. 1288, R.S.1925.

The rule that a description in a deed that is uncertain may be made certain by the aid of extrinsic evidence has no application in the present case for the reason that the words used by the grantors are in themselves indeterminative, and there is no language in the deed which furnishes a key whereby extrinsic evidence can make certain the extent of the interest purported to be conveyed. Continental Supply Co. v. Ry. Co., Tex.Com.App., 268 S.W. 444; Hanks v. Hamman, Tex.Com.App., 288 S. W. 143; Id., Tex.Com.App., 289 S.W. 993; Stroburg v. Walsh, Tex.Civ.App., 203 S.W. 391, 393, writ refused; art. 1288, R.S.1925.

In the case last cited the court say: "It has been the recognized law since the day of Lord Bacon that * * * where the terms or subject-matter of a written contract do not appear upon the face of the instrument, and no reference is made therein to anything else from which the same might be ascertained, no evidence will be admitted to aid in rendering certain that which the contract leaves in doubt," citing Jones v. Carver, 59 Tex. 293, 294.

In the Hamman case (288 S.W. 144) in which the deed describes the property as "undivided interest in a certain part of M. G. White league of land, situated in Liberty county, Tex., same being about two acres, and being on the east side of the Trinity river and about three miles east of the town of Liberty," without stating in the deed any starting point in aid of which extrinsic evidence could be introduced, Judge Powell says : "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."

It has been already noted that the deed in the present case contains no words of ownership such as it would be necessary to import into the deed in order to render the description certain. Concerning the effect of the absence of words of ownership from the descriptive language of a deed, Tiffany on Real Property, 2 Ed. vol. 2, sec. 447, says: "And in a number of other cases the court has referred to the fact of ownership by the grantor of particular land as tending to show that the conveyance otherwise lacking in definiteness of description, was intended to apply to that land. But thus to consider the question of the grantor's ownership of property in order to identify a description which makes no reference to ownership apparently involves the insertion by implication in the conveyance of a word or words, such as `my' or `belonging to me' and this...