*1 1953, writ Dallas (Tex.Civ.App., 2d 338 Ins. Co. ; Life Republic Nat.
ref’d) (Tex.Civ.App.,
Bullard, e.). n. writ ref’d r. concerning ac the evidence
Here and lacks is inconclusive
cidental death probative
necessary weight to amount fact. the ultimate establish
evidence to evidence, based
The circumstantial facts, is as consistent
proven accidental
theory of suicide failed Dyess has Accordingly, Mrs.
death. her burden. meet is no that there firmly
Being convinced support the force to probative issues special jury to the
answers think that we
submitted answers disregarding these
correct appellant take judgment that rendering therefore over- appellee. We
nothing from error and appellant’s all
rule of the trial court.
affirm the
Affirmed.
Joseph LEBOW, Appellant,
Stanford A. WEINER, Appellee.
No. 7114. Appeals
Court of Civil Texas , Beaumont.
March 1970.
Rehearing April 9, Denied
McLeod, Alexander, Apffel, & Powel Galveston, appellee.
KEITH, Justice. Weiner, to en- sued LeBow plaintiff, alleged performance an specific force convey Coun- contract to land Galveston ty. verdict was favorable jury appeals. The and LeBow Weiner respective sur- designated will be their opinion. prior appeal names in In a this Weiner, involving venue [LeBow 14th, Tex.Civ.App., (Houston Judge Tunks held writ)], basis forming instrument enforce- present binding suit was Rather able contract between repeat sur- all the circumstances making delivery of rounding the pages refer to and 758 instrument, we opinion an reported account thereof.
LeBow, point, in his first raises the de- fense of This de- Frauds. Statute fense, urged appeal, although in the venue available” him that “not found posture p. (420 case. at 759) printed form used the first
page money and the earnest addenda,1 layman’s used in language necessary makes it separate the three el ements which under consid sold, consideration, eration: the area and the description. separate We these el ements : “* * * Description: 1. out of Lot Lindsey Trimble & Section Texas, County, Survey, Galveston in the name of standing JOSEPH * * * LEBOW; specifical- to be * * * ly by survey identified * ** Engineer-Surveyor; licensed part to be that [of land] Dow, Cogburn Friedman, Houston, & adjacent to and a-tract of West of * * for appellant. Swiff, by Joseph land owned *. Photocopies pertinent portions contract sued herein are filed with pages making up alleged these two opinion. doing sense of the harm to the Without “ ** * instrument, language to read we recast land shall frontage to said as follows: not be less than ONE HUNDRED feet, Feed- along the (150ft.) FIFTY “ * * * sell, agrees to SELLER * * Road, er *. herein, and conditions the terms estate, following real described * * * Galveston, Coun- Galveston “ *3 * * boundary line the ‘West’ ty, acre land out of (1) Texas: One the ‘East’ parallel with shall be Lindsey Lot Trimble & Section * * line, Boundary Texas, Survey, County, stand- Galveston LEBOW; in the name of ing JOSEPH acre (1) land sold: Area “One 2. iden- specifically said acre of land to be in first line [mentioned * * * by Licensed survey by tified * * * description]. Engineer-Surveyor; said acre land part adjacent be [of land] of a Tract land owned West «* ** frontage to said -owe * * * Swiff, by Joseph (cid:127)aero land less than shall be of 2 to be shall said land [contracted sold] not be less than HUNDRED FIF- ONE feet, along ft.) TY the Feeder (150 * * * Road the ‘West’ bound- [and] “ ary parallel ‘East’ line shall be with the * * * in the event that the the Boundary line. square footage total within [sic] survey total [*] [*] [*] price exceeds one one will be acre (1) (1) acre, pro then or [is] rated; acre; upon “[The] * * * [sic] total * TOTAL price [and] * * square footage in the event that the the price $20,000.00 sale within the $20,000.00per [being] per based acre, sur- acre, vey be (1) exceeds one [to made] Price 3. land: “TOTAL PRICE (1) less than acre then [is] $20,000.00per paid by acre3 * * rated; total price pro will be representing and the note balance * * [of] PURCHASER as *. follows: principal adjusted accordingly.” will be (Bracketed inserted.) matter price “This sale based * * * Location Land Court $20,000.00 acre, per in the event that the the total [sic] survey as made located the tract square footage survey ex- within the frontage upon awith minimum of 150 feet acre, (1) ceeds one less than [is] road, line common feeder the east price one acre total (1) then the will Joseph Swiff tract with west * * * rated; pro and the note thereto, parallel line land was situated representing principal balance Lindsey in Lot Trimble & [of] Section Texas, adjusted Survey, County, accordingly.” standing will be Galveston Pipe Dwyer, appearing The words “one acre of” Line Co. 1964). typed original (Tex.Sup., ink were stricken in orig- and initialed on the “per appear “The 3. The acre” to have inal. deletions made words * * * typed may into the material be considered this court been written meaning original. ink order to arrive at on the the true parties.” and intention of Joseph the name But LeBow. the land is part “Where the larger tract, tract contained acre (0.9) nine-tenths conveying the deed the included prorated the court the cost tract or the judgment, levy, or the acreage, $18,000.00for probate the area within the proceedings evidence, offered in description. may look, to which the legally must general description contain a LeBow, invoking the Statute of Frauds land embraced in larger in ad- (Article 4, Vernon’s Ann.Civ.St), dition the description inclosing contends that the contained datum, tract —a starting point, a refer- is insufficient law ring to the included tract from which it and in fact. up He his contention may be traced its extrinsic facts to in this language found in his brief: location general be found. The de- scription may only the name of the “In conjure order to from de- this [the owner, designated person’s interest in scription found in the the tract contract] larger tract, or some such fact. But shown on Plaintiff’s Exhibit 3No. there must be a nucleus *4 (upon based) which the is one tract, the inclosed around which extrin- must (a) completely disregard lan- the may sic facts be gathered from oral evi- guage ‘not arbitrarily less than’ and as- dence such as locate the land. There sume that frontage the is to exactly something must be description the to fifty hundred feet on the (150) which oral may be tied. With- feeder, less, no more and (b) and as- out such datum to begin with, proof of sume ‘adjacent that to and of’ West extrinsic facts is inadmissible. In the means conveyed that the tract is to have absence of general such though inaccu- boundary common with the tract Swiff rate description of the inclosed to all way the Lighting back to the permit proof oral of location would be to
and Power Company property in the pass the title parol to land by in viola- rear.” tion of the statute.” Or, Matney Grout, put In as the rule Broaddus was 152 Tex. Odom, 308, 309 Tex. 210 S.W.2d S.W.2d (1953), expressed (1948): the rule in this language: “The rule well established that is “The established in determining test convey contract to land to be sufficient sufficiency, compliance with the stat frauds, under the statute art. conveyances ute of and the statute of R.C.S., defi- ‘the must frauds, of land in in- and certain the face nite convey deeds and in contracts is land itself, writing strument some other Fisher,
thus stated Wilson v. to, referred that the land can be identi- 53, 56-57, ‘the 188 S.W.2d 152: y certainty.’ fied with reasonable Greer v. writing itself, must within furnish b Greer, 144 Tex. reference writing, to some other existing * * citations omitted].” [other the means particu or data which the lar land conveyed may to be be identified But, Asher, said in was Gates certainty.’ (Emphasis reasonable 538, 280 247,249 (1955): * * * added.) [citing cases].” “A certainty reasonable is all essence, In this is requires. per- the “nucleus de beyond law all Conviction scription” theory enunciated unnecessary. the Com adventure doubt is mission Appeals Castles, Supply Continental Mansel v. 93 Tex. 55 S.W. Missouri, Co. v. Ry. K. & T. supplied 268 S.W. that case the court 444, 446 (Tex.Com.App., 1925): missing entire construction an call must be not than 150 feet as fol- volved part held in the deed and
from mini- This was a stated feeder road. lows: mum, the court awarded that is what “ ‘While, therefore, that proposition purchaser. minimum question description in calls question presented not similar is themselves, in- the land and show correct discussed Chief question “more or less” described, capable of is not tended to be Bickler, 403 in Bickler Calvert Justice demonstration, yet it that mathematical (Tex.Sup., 1966) “used Upon reasonably such certain. true quan- conveyances qualify statements of con- certainty highest in all the we act descriptive By tity calls for distance.” life, for the it is cerns of sufficient expedient simple disregarding ” purposes of law.’ qualify words “not less than” which also, University Endowment Kansas See mentioned, we remove the claimed distance 599, 350 S.W.2d King, Ass’n ambiguity. (1961). It from consideration obvious primary pointed has out LeBow exactly that instrument knew phrase description: objections conveyed by what LeBow frontage” must be feet “not less question in the minds Weiner. adjacent “exactly” number feet precise acreage requires to and of” the Tract West Swiff up square footage which would on show boundary between two common survey. land measurement of the after do not have a of “more tracts. We case contingency This was taken care ade- *5 acreage description of or in a either less” quately completely through device length or call have an nor do we proration adjustment of the cost and attempt easterly boundary at to locate the accompanying note. place “adjacent to and other West willing parties The were and “intend- precise of” the The mini- Swiff Tract. ed gain to risk a not unreasonable loss frontage mum were allocat- number of feet quantity.” the estimated v. [Wooten purchaser easterly ed to the line State, 238, 56, 142 177 58 Tex. S.W.2d only of” the “adjacent not to and West Bickler, quoted (1944), supra.] Our Tract, it Swiff The was common thereto. analogous Ingelson case to that is Ol- “adjacent” word is defined in Ameri- The son, 273, Minn. 199 272 110 N.W. can Heritage Dictionary as (1969) “close quota- (1937), 167 from which A.L.R. ¡next to; near; lying adjoining.”4 The appearing tion in Bickler is taken: surveyor line chosen fitted each of requirements. meaning these is that the inten- “Estimate used order “adjacent” municipal word as construed parties tion shall not he defeated necessarily annexation suits5 is not con- by attempted precision, which at the time trolling in this we at- situation where are They possible. not are words safe- tempting par- to ascertain the intent of the ty precaution, intended cover expressed ties writing. in their unimportant inaccuracy, slight some necessary, of ambiguity adjustment, claimed seized for an if dis- LeBow’s resourceful re- or quantity.” (Emphasis counsel is the tance Chief quirement Bickler, supra.) that of the tract in- Calvert Justice 4. See in this Production connection Broun v. rel. Pan American Texas State ex Co., (Beau- City, S.W. N.O.R. 295 S.W. Co. Texas ref.), mont, (1957); City con- Pasadena 2d “adjacent” sidering City Houston, 442 the word ex rel. and Curlee State 1969). Co., (Beau- (Tex.Sup., & N.O.R. 295 S.W. Tex.Civ.App., 1922, writ), considering “adjoining.” the word Bickler, grantor, While the Chief when this intention as- Justice distance, certained,
speaking of calls for this lan- which carries construction guage equally applicable effect, to our case the intention into when such in- dealing quantity: when lawful, governs tention is and controls.” always “But distance calls do not call The court in Garrett Dils adjoinder a monument or as a terminus. Tex. spoke (1957), so, they qualifying When do not do of a rules, relaxation of say- the ancient relieving words exactness should dis- ing: regarded unless the evidence establishes “In construing the deed we shall that the intention guided by the well-established rule which
instrument would thereby be defeated.” recently we reaffirmed in Harris (Emphasis by court.) Windsor, Tex., 294 S.W. [156 324] 798,799,800, language: 2d in this Ours is stronger an even do case. We disregard have to anything to find the “ long ‘We have since relaxed the strict- meaning and intent of the It is ness of the ancient rules for the con- they obvious that contracted for feet deeds, struction of and have established of frontage along pro- the feeder road and the rule for the construction of deeds price vided that of the surveyed acreage, contracts,— for the construction of all made,, when adjusted would be in accord- it parties, intention of the when ance quantity with the actual land cov- can be from a ascertained consideration ered survey. The one-tenth shrink- parts instrument, of all will be age price was within the risk that possible. effect when That inten- they intended the language se- tion, ascertained, prevails when ar- over State, supra. lected. Wooten v. Barksdale, bitrary rules. Benskin v. Tex.Com.App., Sun Oil 246 S.W. presence Even if the words “not Burns, Co. v. than” appearing with reference to the ” 442.’ frontage area of the land involved makes ambiguous, requiring thus us instrument, construing we *6 to construe it to determine its true mean- Bumpass will follow the in rule enunciated ing, problem. we have no real The rules Bond, 1172, 266, v. 131 Tex. 114 S.W.2d governing the construction of deeds have 1174 (1938): many been in considered so cases we need to a cite few. “If there be doubt as to what the inten- was, parties tion of the due to the lan- Worley Empire In v. Gas & Fuel deed, guage of the such doubt should be 532, 368, 129 Tex. 103 (1937), S.W.2d 370 against grantor.” resolved the deed, speaking in of the construction of a the court said: See also: Victoria Bank & Trust Co. v. Cooley, 814, (Houston, 817 duty “Our to effectuate the intention error ref. n.r.e.), and
of possible, the far as and dis- therein cited. cases regard designations, technical or rules of construction, except may absolutely will, further, We invoke the rule necessary ascertaining in the intention.” Ellis, laid down in Waters v. 158 Tex. Allison, In Smith 301 S. 312 S.W.2d 234 (1958) : (1957), W.2d the rule was ex presumed “It is to in- pressed in these words: conveyance tended to a effect and a con- “The purpose ultimate in construing affirming validity a struction a deed the of deed to adopted ascertain will preference the intention the in of copy that he was a surveyor testified nullify the instrument. would which * ** upon asked to contract sued omitted]” [citations in accord- survey property a make analogous considering In somewhat of contract. language ance with Washing Supreme Court question, adjoining Having surveyed the previously Fowler, in Paullus 59 Wash.2d ton contract, in he Swiff tract mentioned 130, 136 said: (1961), P.2d land with crew went his LeBow’s *7 mitted out that other areas could be carved n.r.e.). ref. larger of the refused to LeBow but cause, Upon pro- the admit be in trial of the that such other areas would Weiner surveyor, Hall, princi a gradu- surveying duced who was a sound conformity with ples. by College, postulated ate of Texas a of the registered A. & M. Each areas professional required greater land LeBow’s front engineer, a licensed state counsel a surveyor, surveyor footage feet. registered public and a the feeder than 150 on road instance, acre, practiced profession precisely To who his in Gal- secure approxi- twenty years. require footage would a front of veston more than The Scott, 334, In deed or Blackwell 223 S.W. “The of a v. 338 office land, (Galveston, 1920, Tex.Civ.App., writing identify the other is not to ref.), quoted from the court a West Vir- but means identification.” furnish ginia case, language: which contained this 876
mately along road. the pages 165 feet the access with intent that both it be survey by The the locat- made witness was contract signed him. We of the are ed ground opinion the one familiar with presumed further that such a locality require- the thus satisfied finding against overwhelming and the is not the certainty weight ment of laid preponderance down in Gates v. and of the evi- Asher, supra. point raising (420 LeBow’s first dence.” at 758) the frauds defense of statute of trial The court in this instance submitted overruled. Special reading Issue No. as follows: you preponderance next consider LeBow’s fourth
We
“Do
find from
and eighth points raising the “no evidence”
the evidence that
LEBOW
JOSEPH
and
the evi
insufficiency
placed
signature
the claimed
his
on Plaintiff’s Ex-
finding in an
support
jury
dence to
hibit No. with the intent
that both
2
swer
issue
Special
Issue
2.7 The
pages
signed
of it
No.
be a
appears
substantially
the same as
?”
him
inquiry
Asher, supra (280
used in
Gates
To
jury
which the
answered: “We do.”
by the
p. 249)
supported
S.W.2d at
and
testimony
surveyor,
Hall. The
Special
In answer to
Issue
No.
court,
admitting
into evi
the contract
jury
sign
found that
Levin
Hyman
did
submitting
dence
case to the
and- in
express authority
the instrument with the
stated,
jury
acted properly:
manner
However,
find, in
of LeBow.
did
jury
language
construéd
response
Special
4
re-
Issues Nos. and
contract,
law,
question
and submitted
signed
spectively, that
the contract
Levin
handling
jury.
issue of fact to the
implied
apparent authority
and
proper
matter
under the ration
was
LeBow.
Asher,
not,
supra.
ale of Gates
It was
by LeBow,
as contended for
a submission
Special
LeBow
Issues Nos.
attacks
question
jury,
of a
law
1, 4,
5
and with “no evidence”
“insuf
Maynard,
condemned
31
in Walker
S.
points.
ficient evidence”
re
We have
(Austin,
W.2d
appropriate
viewed the
evidence under
no writ),
upon by
LeBow.
relied
King’s Estate,
standards
re
[see
eight
Points four and
are overruled.
Tex.
(1951)]
each
is overruled. As
such
Upon
essentially
cause,
of this
complaint
instrument
presented
same
evidence
contract,
being
the same is ruled
appears in
opinion
filed
doctrine
out
the law of
case as set
appeal.
the venue
The court there consid-
Judge
prior opinion.
Tunk’s
For a dis
ered such
held:
see: Franklin
cussion of this doctrine
;
opinion
Cassaday,
“We are
(1884)
the evidence
Green
Priddy,
outlined
above
sufficient to sustain
S.W.
presumed
finding by
5B
Appeal
the trial court
Error
(1923);
&
§
C.J.S.
1964d, 570;
appellee placed
p.
Appeal
the effect
Am.Jur.2d,
Er &
question ror,
signature
p.
Tex.Jur.2d,
document in
&
Appeal
on the
Special
you
explanatory
7. This
find
Issue read:
“Do
instruction
was:
preponderance
foregoing special
from a
of the evidence that
“In connection with the
you
property description
property
*8
Ex
in Plaintiff’s
that
are instructed
issue
description
writing
hibit
is
if
fur
contract]
Xo.
[the
is sufficient
person
by
itself,
with
sufficient
to enable a
familiar
within
reference to
nishes
or
locality
identify any
parcel
writing,
means
to
tract or
other
or data
some
by
certainty
particular
of land
to
with reasonable
which the
land
be con
may
parcels
veyed
exclusion of all other tracts or
be
with reasonable
identified
certainty."
jury
do.”
land?”
The
answered:
“We
con-
nor
trial court
parties
Empire
neither the
Error,
p.
Waddell
fact, the
it
“one acre.” In
mean
strued
to
(East
Drilling
358 S.W.2d
Hall,
found
surveyor,
the trial court
n.r.e.).
and
land,
ref.
error
an acre.
land
contain 0.9 of
to
tract of
to
jury
answer
findings
The
had
description
if our
the other hand
On
supported
5 are
Special
and
Issues Nos.
frontage and
precisely
150-foot
called
and
effect
by
probative
evidence
less,
acre,
or
the intention of
more
one
such
challenging each
in-
been clear and
have
would
in all
considered, are
findings, having been
been furnished
have
formation would
things overruled.
reasonably
the land intended to
describe
description called
this
covered. But
being
court
The
this
150 feet and neither
less than”
“not
correct,
things affirmed.
is in all
right
has the
nor the trial court
terms material
interpolate or eliminate
PARKER, Chief
(concurring).
Justice
legal
uphold
a con-
consequence
order to
is void because of an uncertain
tract which
became valid and enforce-
The contract
Holden, 150
legal description. Dahlberg v.
“specifi-
the tract
Weiner had
able when
(1951). The
En-
by survey
Licensed
cally identified
than” 150
feet” and “not less
terms “150
Such
gineer-Surveyor.” This was done.
th,e
meaning
feet do not have the same
in the con-
survey honored all directions
legal authority
opinion has
majority
were removed
tract. All uncertainties
so construe them.
Blum,
ground.
survey upon the
Dull v.
Nye
(1887);
68 Tex.
opinion to this case on the basis of decide selection,
equitable then this is the first No
mention that doctrine this case. plaintiff in made
contention was court,
pleadings is made in contention this court recovery could made on that basis. nothing
There is in the instrument itself to par-
indicate it was the intention of these surveyor
ties to an unnamed allow to make them. I think selection for the clear
meaning of the words used the contract
“specifically survey- identified” is that the the ground,
or should locate on the tract of describe, attempted
land the
using the information the con- nothing
tract. I find in the instrument surveyor permitted
that a would be to use
his own discretion to select a tract of land reading
for the A careful conclusion, supports
statement of facts complete
as there lack of evidence that
any intended to endow sur-
veyor authority. with such
This case should be reversed and ren-
dered. EON, Jr., Appellant,
T. W. K INCH ux., Appellees.
Lawrence KILLIAN et
No. 11757. Appeals Texas,
Court of Civil Austin.
May 20, 1970. notes survey his from which the field made the terms which “A seller dictates were taken. involved in the If, doing, property. will he sell so his has a dual mean- which he uses term survey He east line made the re- complain if the ing, he cannot west line commence at the Swiff interpretation quires accept him to call for 150 foot took his purchaser. most favorable contract,” money “from the earnest ** * omitted]” [citations parallel (and west line line was the east he tract) line of the west Swiff Alexander, Maupin Chief Justice north went line of back to Chaney, property line which was south descrip speaking office of (1942), Company prop- Light Power & purpose in a tion said: “The sole deed erty. surveyed nine-tenths The area description property, as contained (0.9) plat was into acre. The admitted conveyance, identify is to deed evidence. subject grant.”6 matter Miller Hodges, (Tex.Com. S.W. area with the familiar Hall was Judge quoted App., 1924), from German testimony had question under Ruling (now Am.Jur.2d, Case Law he specific tract which locating the trouble Deeds, 222, p. adopting 265), these words copy being furnished with surveyed after guidance: for our testi money This contract. of the earnest purpose “The sole of a enun the rule mony under admissible of convey- land as contained in a deed Asher, supra (280 S.W. ciated Gates ance, being identify subject-matter p. 248-249): at2d grant, a deed will not be declared uncertainty possible, enough appears void for if it is “If construction, locality any party reasonable rules that a familiar with the premises reason- description, ascertain can identify from the aided evidence, property certainty, in- it will be sufficient. extrinsic what it is able ** convey.” (Emphasis tended supplied.) omitted]” [citations also, Reinert, See Kuklies v. cross-examination, Hall ad Upon (Waco, Tex.Civ.App.,