Lohff v. Germer

37 Tex. 578 | Tex. | 1873

Ogden, J.

There is but one question presented in this record which requires any notice by this court, and that question is as to the validity and force of the instrument of writing executed by Diedrich Germer to Diedrich Henry Lohff, on the 2d day of April, 1860. This instrument, “ out of respect “ of the love and attachment ” which the donor bears towards the donee, “conveys by gift or donation ten acres of land. This instrument, accompanied by the possession of the property donated, is amply sufficient to vest in the donee an absolute and indefeasible title. The donation becomes an executed contract for a good consideration, and is irrevocable by the donor. (Parsons on Contracts, Vol., I., p. 235, and authorities there cited.)

But there are equities attending this donation which would call loudly for the interference of a court of equity, in order to protect the rights of appellant, if the donation and transfer had not been complete in every respect. A parol gift or sale in consideration of love and affection, and for the further consideration of services rendered, had been made of this identical land, years before, to the father of the beneficiary in the deed of gift of April, 1860; and at that time the father was placed in possession, who improved and built upon it, and occupied the same until the time of his death, as his homestead; and the donor having failed to execute a written title to the father during his life, simply performed an act of justice to his son. The instrument is not in the usual form, in every particular, of a deed of gift, yet there is no ambiguity or uncertainty in it, but it clearly expresses the intention of the maker thereof, then and there to convey by donation the land described, forever.

A deed is not necessarily void for uncertainty in the description of the premises conveyed, provided the same is capable of being made certain; and it is said that “ facts existing at “ the time of the conveyance, and prior thereto, may be proved “ by parol evidence, with a view of establishing a particu- “ lar line as being the one contemplated by the parties, when, “ by. the terms of the deed, such line is left uncertain.” (Washburn on Beal Property, Vol. III., p. 347.) The deed of Germer conveys ten acres of land, so as to include the buildings and fences where Mrs. Lohff then resided. This description is sufficiently definite, within itself, to authorize a court of equity to order the land surveyed, and the precise lines established, according to the best interest of all parties interested. But the testimony of Braun and others establishes beyond doubt the form of the tract conveyed, and the-precise boundary lines.

Diedrich Henry Lohff and his mother were in possession of the land at the time of the conveyance, and their possession and title were clearly recognized by the donor for years. There remained no act of the donor to complete the title, and no subsequent act of his could revoke the gift or divest the title.

This view of the instrument of writing under consideration, taken in the light of the facts surrounding the same, must definitely settle all questions of controversy that have arisen in the case, and therefore the errors in the instructions of the court to the jury need not be specially noticed. The judgment. of the District Court is reversed and the cause remanded.

Beversed and remanded.