39 S.W. 930 | Tex. | 1897
The Court of Civil Appeals made substantially the following statement of the facts found by that court: On the 13th day of March, 1857, the State of Texas issued to William S. Blount patents for two tracts of land, one for 640 acres, described as situated in Denton Land District in Wise and Jack counties; and the other for 320 acres, situated in Denton Land District in Wise County. The two surveys being a part of 6000 acres granted to Wm. S. Blount by the Republic of Texas. Wm. S. Blount died at a date not given, leaving surviving him his widow, Eliza Blount, and their son, Wm. C. Blount. The widow and Wm. C. Blount conveyed one-half of the 6000 acres to J.W. Lawrence, of Austin, Texas, who obtained patents thereon in 1854 or 1856. Referring to the statement of facts, we find that the undisputed testimony shows that Wm. C. Blount was the son of Wm. S. Blount and *537 Eliza Blount, his wife, who survived him, and that afterwards, in 1840, Mrs. Blount married a man named Halsey, of which marriage Mrs. Trueblood and Jno. H. Halsey were the offspring. Wm. C. Blount died before the death of his mother, and afterwards the mother, Mrs. Halsey, died, leaving Mrs. S.E. Trueblood and Jno. H. Halsey the only heirs to the 3000 acres not conveyed by Mrs. Blount and Wm. C. Blount. In 1878 Mrs. Trueblood, then Mrs. White, joined by her husband, Geo. A. White, conveyed to Wm. F. White 736 acres of the land so inherited lying in Archer County; and Jno. H. Halsey conveyed to J. Kelley 736 acres lying in the same county. Afterwards Jno. H. Halsey and Mary E., his wife, and Geo. A. White and Sarah Eugenia, his wife, made and delivered the following deed:
"This deed, made and executed this twenty-third day of January, one thousand eight hundred and seventy-three, between John H. Halsey and Mary E., his wife, and George A. White and Sarah Eugenia, his wife, of Nancemond County, Virginia, of the one part, and Marmaduke Cartwright, of the same place, of the other part, witnesseth: That the parties of the first part do, in consideration of the sum of twenty-four hundred dollars, grant, with general warranty, unto the said Marmaduke Cartwright, and to his heirs and assigns forever, two parcels of land situated in Wise County, State of Texas; one parcel contains 640 acres, and the other parcel contains 320 acres; being one-half of two parcels of land, patented by William S. Blount, now deceased, who died leaving one child, to whom these lands descended, which child afterwards died, leaving as his heirs at law said Jno. H. Halsey, a half brother, and said Sarah Eugenia, a half sister, who now sells to said Cartwright, and for more particular boundaries see the patents to said Wm. S. Blount. Together with all and singular the appurtenances belonging to the same; and the parties of the first part covenant that they will warrant the title to the land hereby sold to the said grantee and to his heirs and assigns, and that the said grantee and his heirs and assigns shall have quiet possession of said land, and that all other assurances thereof necessary and proper shall be executed."
The cause was tried in the District Court without a jury and judgment was given for the plaintiffs. Mrs. S.E. Trueblood and her husband, Wm. Trueblood, joined by other parties, the heirs of Jno. H. Halsey, who instituted suit in the District Court of Wise County against John Cartwright and others to recover half of the lands mentioned in the above deed. The Court of Civil Appeals affirmed the judgment of the District Court; from which judgment of the Court of Civil Appeals this writ of error was sued out.
The sole question presented for our consideration arises upon the construction of the deed copied above. Did that deed convey to the grantee the whole or only one-half of the two surveys of land mentioned therein?
Before examining the language of the deed we will state some of the rules of law which must govern in the construction of it and in arriving at the intention of the parties. Every part of the deed must be given *538
effect if it can be done, and when all of the parts are harmonized, the largest estate that its terms will permit of will be conferred upon the grantee. (Hancock v. Butler,
The language "that the parties of the first part do in consideration of the sum of $2400, grant, with general warranty, unto the said Marmaduke Cartwright, and to his heirs and assigns forever, two parcels of land situated in Wise County, State of Texas; one parcel contains 640 acres, and the other parcel contains 320 acres;" is effective to convey the whole of the two tracts of land mentioned therein except that the description is not sufficiently certain to identify them. Having thus conveyed the whole interest in the two parcels of the land, the parties then proceed in the deed to identify the land by reciting the history of its acquisition by them, thus: "Being one-half of two parcels of land patented by Wm. S. Blount, now deceased, who died leaving one child, to whom these lands descended, which child afterwards died, leaving as his heirs at law said John Halsey, a half brother, and Sarah Eugenia, a half sister, who now sells to said Cartwright, and for more particular boundaries see the patents to said Wm. S. Blount." From the foregoing language it appears the grantors understood that Wm. C. Blount inherited all of the lands from Wm. S. Blount, and that they inherited it from Wm. C. Blount, by which the whole title was vested in them, and they as heirs of Wm. C. Blount sold to Cartwright; and, to put the question of identity beyond doubt, they refer to the patents to Wm. S. Blount for the boundaries to the land conveyed. If we consider the words "one-half of" as a limitation upon the interest conveyed by the language which precedes, then it stands in direct conflict with that part of the conveyance which grants the whole interest in the two parcels of land to Cartwright and also in direct conflict with that part which follows it, and which shows that the parties intended to convey their entire interest in the land, referring to the patent for a description which would include the whole of both surveys. If we construe this language, "one-half of," as referring to the quantity conveyed, then the conflict between those words and the remainder of the deed would create such ambiguity as to require a construction most favorable to the grantee, which would give the entire interest in the land to Cartwright.
The words "one-half of" are used in connection with language which identifies the thing conveyed and they are totally disconnected from and contradictory to every word which is used in the instrument to designate quantity; they must therefore be held to have been used to describe the *539 lands conveyed. To give them effect we must find in Wise County a survey of twelve hundred and eighty acres and another of six hundred and forty acres in the name of Wm. S. Blount, of which the parcels conveyed are parts. There are no such surveys, but there is a survey of 640 acres and another of 320 acres in the name of Wm. S. Blount in that county, which — if the words in question be omitted — correspond to the description in the deed; as a part of the description, the words "one-half of" are false and must be rejected. This construction harmonizes every part of the instrument, and carries out the apparent intention of the parties.
It is urged by counsel that the defendants in error inherited only one-half of the property from Wm. C. Blount and that the terms of the deed indicate an intention only to convey what they inherited from him. From the language used in the deed it is evident that the parties understood that they inherited the whole land from W.C. Blount, although they in fact inherited the greater part of it from their mother. They were conveying what they understood at the time they inherited from W.C. Blount, but at that time they evidently understood that Wm. C. Blount inherited it all from his father and they inherited it from him. The parties were citizens of the State of Virginia, with perhaps little knowledge of the laws of Texas, and doubtless they understood their rights as if they had been governed by the laws of that State.
The use of the words "one-half" appears to have occurred from a belief on the part of the grantors that each survey of land granted to Wm. S. Blount had been divided and patented separately one-half to J.W. Lawrence and one-half to Wm. S. Blount. Mrs. Trueblood testified that the lands granted to Wm. S. Blount had been divided between Lawrence and W.C. Blount and her mother, and from this fact we conclude that the grantors were under the impression at the time that each party had received a patent to one-half of each survey. It is not important, however, to reconcile the language, to sustain this construction, because if it cannot be reconciled it must be rejected as being in conflict with every other part of the instrument, which would result in the same interpretation. It is not permissible to give controlling effect to that which creates an ambiguity and destroys the certainty which is expressed by other language, and thus overthrow the clear and explicit intention of the parties. The effect of the construction given to the instrument by the trial court and Court of Civil Appeals is to accomplish this end, and by applying the words "one-half of" as a limitation upon the quantity or interest granted in the land to overturn the intention of the grantors to confer upon Cartwright the title to the whole as shown by the granting clause as well as all other parts of the instrument.
The District Court and Court of Civil Appeals erred in the construction of the deed in holding that it conveyed only the one-half interest in the land described, for which error the judgment of both courts will be reversed, and the cause remanded.
Reversed and remanded. *540
