208 S.W. 385 | Tex. App. | 1918
Lead Opinion
(after stating the facts as above).
“When the question is, what land did the deed convey,” said the court in the Davis-George Case, the answer must he looked for in the deed itself, “since no land was conveyed except by it, and it conveys no land except that which by its terms it undertook to convey. Parol evidence, whether brought by parties or strangers, cannot make it convey land which it does not purport to convey nor prevent it from conveying that which it does clearly purport to convey. * * * If it were admitted that Grimmell intended to convey the lower 10 acres as contended by appellees, that intention could not effect such conveyance nor prevent the deed, unless corrected in some proper way, from standing as the legal conveyance of the land described in it. A contrary decision would virtually repeal the statutes regulating the conveyance of lands.”
“It is well-settled law that nothing passes by a deed except what is described in it, whatever the intention of the parties may have been.”
Other grounds, now to be specified, upon which, appellant insists, he is entitled to have the judgment reversed, are not, we think, more meritorious than the one we have determined to be insufficient. First, it is asserted that James Gorman was an owner in common with the state of 1,280 acres surveyed by virtue of scrip No. 428 until same was partitioned between them. The partition, it is asserted, was effected when the Commissioner of the General Land Office finally numbered the two surveys constituting the 1,280 acres. On the assumption that the deed from James Gorman to Charles L. and Jeremiah W. Gorman was made before the partition was accomplished, it is argued that if James Gorman, because one owner in common cannot convey a particular part of the common property, failed to pass title to survey No. 426 to his grantees, his deed became effective as a conveyance of his undivided interest in the land, and that his grantees took title to the part allotted to him in the partition, to wit, survey No. 425. There is a conclusive reason why the insistence should not be sustained, to wit James Gorman and the state could not have been owners in common of the land. 23 Oyc. 484. Second, it is insisted that, if the deed made by James Gorman did not operate as a conveyance of survey No. 425, it did operate as a transfer of scrip No. 428 by virtue of which said survey No. 425 was made. Therefore, it is argued, appellant, because the owner of the scrip, was the owner of said survey No. 425. As supporting his contention, appellant cites a number of cases holding that an effect of locating a land certificate is to merge it into the land located, so that the vendee of the land becomes the owner of the certificate, and hence, if the location for a sufficient reason is abandoned and the certificate is floated and relocated on other land, is the owner of the new location. If the cases cited could be treated as applicable in any event to the donee in a deed of gift, it is obvious, we think, that they nevertheless are not applicable here.
The judgment is affirmed.
<g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Lead Opinion
"When the question is, what land did the deed convey," said the court in the Davis-George Case, the answer must be looked for in the deed itself, "since no land was conveyed except by it, and it conveys no land except that which by its terms it undertook to convey. Parol evidence, whether brought by parties or strangers, cannot make it convey land which it does not purport to convey nor prevent it from conveying that which it does clearly purport to convey. * * * If it were admitted that Grimmell intended to convey the lower 10 acres as contended by appellees, that intention could not effect such conveyance nor prevent the deed, unless corrected in some proper way, from standing as the legal conveyance of the land described in it. A contrary decision would virtually repeal the statutes regulating the conveyance of lands."
And in the Gorham-Settegast Case the court said:
"It is well-settled law that nothing passes by a deed except what is described in it, whatever the intention of the parties may have been."
Other grounds, now to be specified, upon which, appellant insists, he is entitled to have the judgment reversed, are not, we think, more meritorious than the one we have determined to be insufficient. First, it is asserted that James Gorman was an owner in common with the state of 1,280 acres surveyed by virtue of scrip No. 428 until same was partitioned between them. The partition, it is asserted, was effected when the Commissioner of the General Land Office finally numbered the two surveys constituting the 1,280 acres. On the assumption that the deed from James Gorman to Charles L. and Jeremiah W. Gorman was made before the partition was accomplished, it is argued that if James Gorman, because one owner in common cannot convey a particular part of the common property, failed to pass title to survey No. 426 to his grantees, his deed became effective as a conveyance of his undivided interest in the land, and that his grantees took title to the part allotted to him in the partition, to wit, survey No. 425. There is a conclusive reason why the insistence should not be sustained, to wit James Gorman and the state could not have been owners in common of the land. 23 Cyc. 484. Second, it is insisted that, if the deed made by James Gorman did not operate as a conveyance of survey No. 425, it did operate as a transfer of scrip No. 428 by virtue of which said survey No. 425 was made. Therefore, it is argued, appellant, because the owner of the scrip, was the owner of said survey No. 425. As supporting his contention, appellant cites a number of cases holding that an effect of locating a land certificate is to merge it into the land located, so that the vendee of the land becomes the owner of the certificate, and hence, if the location for a sufficient reason is abandoned and the certificate is floated and relocated on other land, is the owner of the new location. If the cases cited could be treated as applicable in any event to the donee in a deed of gift, it is obvious, we think, that they nevertheless are not applicable here.
The judgment is affirmed.
The motion is overruled.
Rehearing
On Appellant’s Motion, for Rehearing.
The motion is overruled.