42 S.W.2d 826 | Tex. App. | 1931
It appears in the record sent to this court that the land in controversy belonged to the community estate between appellee's father, James Spangler, who died intestate in 1903, and his mother, M. E. Spangler, who died intestate in 1926. As one of twelve children of said James and M. E. Spangler, appellee, on the death of his father, took a 1/24 undivided interest in the land, and, on the death of *827 his mother, took another 1/24 undivided interest therein.
By a deed dated November 13, 1917, appellee conveyed an interest in the land to J. N. Spangler, whose rights and title passed to appellants. In the habendum clause of said deed the interest in the land so conveyed was stated to be an undivided 1/12 interest, but the statement was followed by a clause as follows: "It being my intention to convey all my interest in and to said tracts of land by reason of being a child and legal heir of James Spangler, deceased."
The controverted question between the parties was, and is, as to whether the effect of the deed was to pass an undivided interest of 1/12 in the land to J. N. Spangler, or instead to pass to him an undivided interest of only 1/24.
Appellants' contention was, and is, that in determining the intention of the parties to the deed the habendum clause should be allowed to control, and that the other clause, quoted above, "should be treated as merely a description of the source of title." They cite Rettig v. Realty Co. (Tex.Com.App.)
If, as we think it should be, the deed is construed as operating to pass to J. N. Spangler only the undivided 1/24 interest owned by appellee as an heir of his father, of course the contention that the effect of the covenant of warranty in appellee's deed was to estop appellee from asserting title to the undivided interest he afterward took from his mother should not be sustained.
We think there is no error in the Judgment. Therefore it is affirmed.