McMurray v. Standley
1 S.W.2d 592
Tex. Comm'n App.
1928
Check Treatment
NICKELS, J.

Thе general nature of the case is stated in the opinion of the Court of Civil Appeals. 297 S. W. 557. It was held that the description in the deed there considered was void for uncertainty, ‍‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​‌​​​‌​‍if that ruling be correct the assignments here are either immaterial or not well laid.

The basic matter is one of latent ambiguity ; and it must be determined upon the assumрtion that the parties contracted with reference to the real condition of the property, or “its actual state,” since there is lack of evidence to the contrary, and with application of thе doctrine that falsa demonstratio non nocet. Arambula v. Sullivan, 80 Tex. 615, 16 S. W. 436.

The “actual state” is: The tracts of Georgе and Sallie Standley adjoined; the east (slightly northeast) line of George’s tract is coincident with the west (slightly northwest) linе of Sallie’s tract. The most southern line of Sallie’s tract is at right angles with the common line just mentioned and lies somе distance north of the southern line of George’s tract. Eor a considerable distance Sallie’s tract is bоunded by a line running almost southwest-northeast. The fourth ‍‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​‌​​​‌​‍line of Sallie’s tract is parallel with the first, at right angles with the secоnd, and extends from a point in the third to the Trinity river. The remaining boundary of Sallie’s tract and a corresponding boundary of George’s tract is the Trinity river, the general downward' course of which along Sallie’s tract is a curve to thе southeast. The tracts are depicted by plat in the opinion of the Court of Civil Appeals, to which refеrence is here made. The-description reads:

“All that certain tract, or parcel of land, a pаrt of the E. L. Stickney survey in said county'and a part of that certain tract of land of said survey, inherited by me from my fathеr, George Standley, deceased, described as follows: ‘Beginning at the northeast corner of said 41½ acrеs set apart to me in a partition of my said father’s land, the same being the southeast corner of a 41%-acre tract set aside in said partition to my brother, George, commonly called Beach Standley, on the wеst bank of the Trinity river; thence in a westerly direction with the dividing line between my said tract and the tract of my said brother, tо a point far enough on said line so that a line run at right angles to the south boundary .line of my said tract, and thence to the west bank of the Trinity river, and thence up said river to the beginning — will contain and embrace ten acres of land, and no more.”

Examination of the plat will disclose inevitable falsity in the following descriptive elements: (а) The beginning call for the “northeast corner” of Sallie’s tract and the “southeast corner” ‍‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​‌​​​‌​‍of George’s tract; (b) a “westerly direction” for the “dividing line”; (e) a “line run at right angles to the south boundary line of my said tract” for the second boundary named.

If the falsa be rejected, there will remain: (a) The “dividing line” between Sallie’s and George’s tracts as one of the boundaries of the tract supposedly conveyed; (b) the Trinity river for an undefined distancе from its intersection with said “dividing line” for another boundary of the tract supposedly conveyed ; (c) that point of intersection for the “beginning corner”; (d) “ten acres, and no more” for quantity; (e) a line run from some point in the “dividing line” to “the west bank of the Trinity river” so as to include “ten aeres, and no more.”

When the false is rejected and thе true is sought to be applied on the ground, as will be seen, an insuperable difficulty appears in the fact that any one of many lines which may be drawn between points in the “dividing line,” on the one hand, and points in the west bank of the Trinity ‍‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​‌​​​‌​‍river, on the other, will mark off “ten acres, and no more.” The possible boundaries of the 10-acre tract аre as infinite as are the points in a large portion of the dividing line and the points in a large portion of thаt part of the river line which bounds the larger tract.

Against this result an argument is made by plaintiff in error: It is said that we should start at the beginning point named (that is, at the intersection of the “dividing line” and *594the river), reverse the calls, follow the river to its intersection with the most eastern of the boundaries of the larger tract, and from that point construct (with the аid ‍‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌​‌‌​​‌​​​‌​​‌​​‌‌​​‌‌‌‌​​‌​​​‌​‍of scienee) a line to whatever point in the “dividing line” is appropriate to the inclosure of “ten аcres, and no more” — this upon the authority of Mansel v. Castles, 93 Tex. 414, 55 S. W. 559, and other like cases. But the argument rests upon а postulate that the deed manifests-ian intent to have the “ten-acre tract” extend completely аcross the northern portion of the larger tract; that is to say, the point of intersection between the river and Sallie’s most eastern boundary is called for in the deed. We do not find that data in the instrument. The relevant call is merely for “the west bank of the Trinity river” with distance along the river undefined and with no reference to the eastеrn boundary of the larger tract or its intersection with the river. The data which enabled construction of the missing line, after reversal of calls, in Mansel v. Oastles, supra, were a given “beginning” point and given courses and distances for two of the boundaries and distance (with reversible course) for a third. ,

Extrinsic evidence becomes important only when there be left, after rejection of falsa, enough to permit location on some partiсular tract. Arambula v. 'Sullivan, supra.

We believe the Court of Civil Appeals gave right disposition to the case and, accordingly, recommend affirmance of its judgment.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals affirmed.