25 Tex. 162 | Tex. | 1860
The league of land was oblong in shape. The longer parallel lines ran about northeast and southwest, and the shorter lines ran about northwest and southeast. The defendants below were in possession of and claimed lands in the most southern corner of the league, designated in the plot given in evidence as corner A. They alleged that the section of land sold by Thompson to Hughes, and described in the bond for title, was situated in' the most western corner, designated in the plot as corner D. The corners might more properly be designated as southern, western, northern and eastern, than otherwise. The witnesses differed about which one of the corners, A or D, could be most properly called the southwestern corner, so as to answer the description of the beginning corner in the bond.
For the purpose of identifying D as the corner designed to be described in the bond, the defendants below proved by the witnesses that the creek referred to in the bond, also the Webb improvement, were in the section of land situated in the more western comer, D; and that Hughes, the purchaser, commenced the digging of a
This evidence was objected to “on the ground that parol evidence was not admissible to control the calls of a deed or title bond.”
The objection made is not applicable to the evidence adduced • for the. evidence was not offered for the purpose, contemplated in the objection. The description of the land in the bond is not ambiguous. The ambiguity arose upon the evidence when the plaintiff sought to identify the land described in the bond. Such ambiguity thus arising, may be “ removed by the production of further evidence upon the same subject, calculated to explain what was the estate or subject-matter really intended to be granted.” (Miller v. Travers, 8 Bing., 526.) Under this rule the Supreme Court of the United States sanctioned the admission of the verbal declarations of intention of both parties to a deed, in a case similar in principle to the one now under consideration. (Atkinson’s Lessee v. Cummins, 9 Howard R., 484.)
Such verbal declarations are admissible when the description in ■the written instrument would apply to more than one person, or to more than one estate or subject-matter; and where the description, when it comes to be applied, is found to be incomplete or inaccurate in part, and true in part. (Miller v. Travers, 8 Bing., 528; 1 Greenleaf, § 390, 301.) The entire description in the instrument “ must be taken, and the identity of the land ascertained by a reasonable construction of the language used.” (Ib.; also Greenleaf, § 301.)
In this case, the effort to identify the land showed that there was no corner that accurately answered the description in the bond—“ southwestern.” . Sor was there any line that could accurately be called the southern line. But the Webb improvement and the creek called for in .the bond were natural objects, and were parts of the description that could only apply to the more western corner, D. They, when ascertained, removed the ambi
There is also another view of the matter which makes this evidence admissible. The defendants below were not parties to this instrument, and were not bound by any misrecitals of facts contained in it. “ The rule of evidence that where the parties to a contract have reduced their agreement to writing, parol evidence shall not be received to alter- or contradict the written instrument, applies to controversies between the parties, and not to those claiming under them. The parties have constituted the written instrument to be the authentic memorial of their contract; and because of this compact, the instrument must be taken, as between them, to speak the truth, and the whole truth, in relation to its subject-matter. But strangers have not assented to this compact, and, therefore, are not bound by it. When them rights are concerned, they are at liberty to show that the written instrument does not disclose the full and time character of the transaction.” (Reynolds v. Magness’ Executors, (Jus. Gaston,) 2 Iredell Law R., 26; 1 Greenleaf, § 279.)
We are of opinion that there is no error in the judgment, and therefore it is affirmed.
Judgment affirmed.
