Berry v. Wright, 14 Tex. 270

Berry v. Wright

14 Tex. 270 | Tex. | 1855

Wheeler, J.

The ground mainly relied on for a reversal of the judgment, is that the deed from Ferris to the plaintiff did not contain a sufficient description of the land intended to be conveyed. It is as follows : “ Commencing at the corner, “ on the back line of said league, of the division line between “ said Ferris and the heirs of Slaughter, or G. W. Hill, includ “ ing a sufficiency of the back end of the lower half of said “ league, so as to make one thousand acres.” It is insisted that, as the back line of the league is its west line, this call requires the land to be taken in the south-west corner of the league, instead of the west end of the half league of Ferris, which the actual survey, made in pursuance of the order of Court, includes. But that such is not the intention of the con*273veyance is manifest, for it calls for the division line between Ferris and the heirs of Slaughter, which divides the east from the west end of the league, and it includes a thousand acres of the “ back end of the lower half of said league,” which is the east half, of the league, belonging to Ferris. And, of course, the “ back end ” of that half league, must be the west end or portion of it, which would be impossible if the west line of the league had been intended. It is evident, therefore, that it was not the west line of the league, but of the half league, belonging to Ferris which was meant, though the “ back line of said league ” is mentioned. The description is less perspicuous certainly than it might have been, but there really is no difficulty in understanding what land was intended to be conveyed. And that it should be capable of being ascertained and identified, is all that is requisite to the validity of the conveyance. The falsity of a part of the description does not vitiate the deed, when from the whole, the land conveyed may be certainly ascertained. According to the maxim of Lord Bacon, “falsa demonstratio non nocet,” when the thing itself is certainly described; as, in the instance of the farm called A, now in the occupation of B. Here the farm is designated certainly as farm A; but the demonstration would be false if 0 and not B was the occupant; and yet it would not vitiate the grant. (4 Kent, 467; Cro. C. 447, 473; 7 Johns. R. 217.)

It is further insisted that at the date of the plaintiff’s conveyance, the division line between Ferris and Slaughter’s heirs, had not been actually run. However the fact may be, it does not vitiate the deed, when it was capable of being ascertained with certainty where it would run. Though but an imaginary line at the time when run, it ascertained the locality of the plaintiff’s thousand acres, as certainly as if it had been previously run and marked.

The objection to the plaintiff's title, that it does not with sufficient certainty describe and identify the land conveyed, is not well founded.

Nor is there any ground for the supposition, that the charge *274of the Court, considered in reference to the facts in evidence, was not conformable to the doctrines and opinion maintained by this Court in the case of Thomas v. Chance. (11 Tex. R. 634.) In that case it was said, “ The deed from Lucy Ferris “ to Goddard, considered merely as her own act, without the “ assent or authority of her husband, express or implied, would “ not convey title.” (Id. 637.) And that is this case, as here presented by the evidence. There was no evidence of the assent of the husband, express or implied, to the making of the deed by Mrs. Ferris to Goddard. And hence there was no occasion for the application of the doctrine, justly maintained in the case of Thomas v. Chance, as to the effect of such assent on the part of the husband. It is scarcely necessary to say that every case must be tried upon its own facts, as given in evidence upon the trial; and that the charge of the Court is to be taken and -understood in its application to the evidence, and not in reference to a different state of facts proved in another case.

But if the charge of the Court in respect to the relative nature of the deeds of Ferris and his wife, were errone'ous, it would not be material in this case; as it cannot-be questioned, that Ferris had the power to convey by deed, previous to the conveyance by Ms wife, and it is in evidence that Goddard took the conveyance from Mrs. Ferris with actual knowledge of the prior conveyance to the plaintiff, by her husband. Under the evidence in the case, a different verdict could not have been legally rendered; and we are of opinion that there is no error in the judgment and that it be affirmed.

Judgment affirmed.