34 Tex. 463 | Tex. | 1871
Lead Opinion
This is an. action of. trespass -to try,-title, brought-..
There has been a discontinuance as to some of the defendants, and the case now stands between the appellants, Phelps, Williams .and Cook, and Holliday, the appellee.
Cook sold .the land to Williams and Phelps, with covenants of warranty.
It is admitted by the appellants that the appellee is entitled to •one-half of the upper of the two leagues in suit.
The appellants claimed under two bounty certificates, the first .granted to M. .Evans, dated eighteenth of May, 1838, calling for nineteen hundred and forty acres. This certificate was located .and surveyed March 29, 1859.- The second was granted to JBaumelin for twelve hundred and eighty acres, dated January 13, 1838, and surveyed and located on the same day as the first.
The chain of title appears to be complete down to the appellants. They claim under these locations, and plead the three years’ .statute of limitations; they also suggest possession in good faith for one year, .the payment of taxes, and claim the value of their improvements.
The appellants, who are defendants below, set up an outstanding-title in Joshua L. Davis, superior to the plaintiff’s title.
A question arises upon the construction of the deed from .Serna to Sutherland. The description of the land intended .to be conveyed by the deed is as follows : “ Being the undivided interest of .the said Santiago Serna in and to-one-fourth of two leagues and ,two labors of land granted to the said Serna and his brother as .colonists, in the colony of Santiago Power, on the eighth of ¡October, in the year 1834.” This is followed by the field notes; .and then follows the additional description, which is as follows; ■“ The league and labor, bounded by the land of Clemente de la-•Garza, being the one claimed by me; the other half of which, by .conveyance, having been granted to George Blow and John D. Morris the same day and date of these presents.”
By reference to the map and the deed it does appear that this deed limited the grant tti the upper league.
The deed also seems to show that there had been a partition of the land between Santiago Serna and his brother, by which Santiago Serna became the owner of the upper league.
By the authority of Castro v. Illies, 13 Texas, 234, the rule is laid down that when the description of the land intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate conveyed, no estate will pass etcept such as will agree with every particular of the description.
Restrictive words in the. latter part of a deed control the grant. (See Whallon v. Kaufman, 19 Johns., 97; Rowe v. Heath, 23 Texas, 619; Jackson v. Blodgett, 16 Johns., 178; Jackson v. Clarke, 7 Johns., 223.)
The expression “ undivided one-fourth,” in the deed, together with the field notes of the whole grant, seem to favor the construction claimed by the plaintiff below; but we think the weight of authority is against this construction, and that the subsequent words used in the deed control the grant; and Serna not only limits his grant to the upper league, hut gives the names of Sutherland-’s. co-tenants; Blowe and Morris.
The-construction of this-deed was in the province of the court, and upon a fair construction, based upon authority, Holliday’s deed does not embrace the lands- claimed by the appellants.
We are at a loss to see upon what- ground .Holliday’s title for half a league of land can be so- construed as to cover the two leagues.
Our view of the Serna grant is strengthened by the fact that the deed from Sutherland to Moore is limited to the upper league. Moore, in his. deed to Patten, does the same, and it was only
Proceeding upon the authority of Croft v. Rains, 10 Texas, 520, Watrous v. McGrew, 16 Texas, 506, and Grassmeyer v. Beeson, 18 Texas, 753, claiming to be a tenant in common of certain parties w'hose very existence is doubted, he brings this suit against the defendants helow, treating them as strangers and trespassers, and probably looking to the advantage of recovery, he would claim the whole two leagues. To say the least of it, this gives the action, on the part of Holliday, very much the appearance of a land speculation, although he does not pretend to sue for anybody but himself; and therefore, upon the authority of Stevens v. Ruggles, 5 Mass., 221, if he recover at all he can only recover for himself the interest to which he is justly entitled, whether by metes and bounds or undivided.
This court would not, under the circumstances, in the application of any principle of equity, make him the trustee of the title for his co-tenants, if satisfied that the title of the defendants below was insufiicient to defeat his action.
Taking this view of the case, we deem it unnecessary to discuss any of the other questions raised upon the record.
The judgment of the district court is therefore reversed and the cause dismissed.
Reversed and dismissed.
Dissenting Opinion
Being unable to come to the same conclusion as the majority of the court in regard to the facts of this cause, the legitimate and proper construction of the title of appellants and appellee, and more especially as to the law which should govern the claims and establish the rights of the respective parties to this suit, I hereby most respectfully dissent from the opinion in this case.
