Jones v. Continental Royalty Co.
This text of 115 F.2d 731 (Jones v. Continental Royalty Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Appellants in their petition describing two tracts of land, sued to remove as a cloud upon, and to quiet their title as to, a certain instrument of writing,1 [732]*732claimed by plaintiffs to be an unperformed and ineffective contract of sale. The claim in detail was that it was ineffective from the beginning as to one of the tracts because it had at all times been the homestead of grantors and that it was ineffective as to the other tract because there had been no performance of the conditions it imposed. Defendant contented itself with filing a motion to dismiss on the ground that no claim for relief had been stated and the District Judge apparently of opinion that the instrument was a deed granted the motion. Plaintiffs are here insisting that this was error and that there must be a reversal. We agree. Whether an instrument is a deed or a contract to convey is to be determined, where the instrument is plain, from its terms, and where it is ambiguous, construction may be assisted by resort to acts of the parties. The instrument in question does indeed contain words which are appropriate to a present conveyance but it also contains many clauses not only wholly inappropriate to such an instrument but of an exactly contrary purport. In Vol. 14, Texas Jurisprudence, Page 760, the applicable rule is thus stated: “The use of the words ‘sold and conveyed’ and words of like import are presumptively words of conveyance ‘in praesenti’. Yet, if from the whole instrument it is manifest that further acts and conveyances were contemplated by the parties, the writing will be considered an agreement to convey and not a conveyance” of Snow v. Prince et al., Tex. Com.App., 13 S.W.2d 342.
Thus on its face the instrument with its provisions for acceptance of title and other like clauses, shows clearly enough that it was not, and was not intended to be, a deed but a contract which should eventuate in one. As to the homestead tract, the instrument being but a contract to convey was therefore one which was from the beginning not enforceable. Evans et al. v. Mills et ux., 5 Cir., 67 F.2d 840; Pickens et al. v. Bade et al., 129 Tex. 610, 104 S.W.2d 482, 105 S.W.2d 212; Jones v. Goff, 63 Tex. 248; De Bell v. Schuetz, Tex.Civ.App., 65 S.W.2d 413; Volume 22 Texas Jurisprudence, pages 112, 113; Cates et al. v. Greene et ux. Tex. Civ.App., 114 S.W.2d 592.
As to the second tract the instrument was on its face inoperative as a conveyance and under the allegations of the complaint that the things to be done in order to make it effective as such were never done, it is quite plain that it never became so operative.
The court erred therefore in sustaining the motion to dismiss and for that error the judgment must be reversed and the cause remanded for further and not inconsistent proceedings.
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115 F.2d 731, 1940 U.S. App. LEXIS 2982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-continental-royalty-co-ca5-1940.