* Writ of error granted April 11, 1928.
Suit by appellees as plaintiffs against appellants in trespass to try title to 75 acres of land in Brown county. Judgment was for appellees.
The facts controlling in this appeal are substantially as follows: J. H. Fry and wife were the common source of title to. 155 acres of land out of the George Stubblefield survey No. 622 in Brown county, on which acreage they had executed a standard form oil and gas lease to W. V. Lester. Thereafter by deed dated June 30, 1926, J. H. Fry and wife conveyed to appellees an undivided one-half interest in and to their royalty, or in the oil, gas, and other minerals,
subject to the Lester lease, on and under 75 acres out of said Stubblefield survey, describing same as follows:
"Part of the George Stubblefield survey No. 622, abstract No. 837, and being the south 75 acres of the west 155 acres of the following described 290.65-acre tract, to wit," said 290.65 acres being described by metes and bounds.
Two days later, on July 2, 1926, said J. H. Fry and wife by deed of that date conveyed to C. D. Woods, through whom the other appellants claim, a similar one-half undivided interest in their royalty on and under 80 acres out of said survey, describing same as follows:
"80 acres out of the N.W. corner of the George Stubblefield Sur. No. 622, which is the north 80 acres out of the west 155 acres of the north one-half of said Stubblefield survey."
Neither of these deeds makes any reference to the other, and neither is made by its terms in any manner dependent upon the other, but each is a distinct and complete instrument in itself. They were not contemporaneous, nor a part of the same transaction.
The metes and bounds of the 155-acre tract are well fixed. The north and south lines are each 2,481.4 feet in length. The south line runs due east and west. The north line, running east from the northwest corner of said tract runs S. 89° 25' E., or a variation south from a due east and west course of 35'. The east and west lines of said tract are parallel. The west line is 2,733.3 feet long, but because of the slight deviation of the north line from a true east and west course, the east line of said 155-acre tract is shortened to 2,708.3 feet, or 25 feet less than the length of the west line.
Both parties have briefed the proposition and are agreed that where a deed calls for a particular quantity of land out of a side or corner of a larger established tract of which two adjoining sides are given, without a more definite description, it should be laid off in the form of a parallelogram on the given sides. This rule seems well established. See 18 C.J. 293; Cullers v. Platt, 81 Tex. 261, 16 S.W. 1003; Pruett v. Robison, 108 Tex. 283, 192 S.W. 537; Diffie v. White (Tex.Civ.App.)184 S.W. 1067; Koons v. Burkhart, 68 Ind. App. 30, 119 N.E. 820.
In the instant case, with reference to each of the deeds above mentioned, three sides of the tract are fixed, with only acreage called for in each deed. In applying this rule to appellees' deed to the 75 acres, it would be laid off as a parallelogram with the south line of the 155-acre tract as a base, and its east and west lines each 1,316.4 feet long. Applying the same rule to appellants' deed, their 80 acres would form a parallelogram with the north line of said 155-acre tract as its base, and its east and west lines each 1,404.4 feet long. Hence the north line of the 75 acres as thus located would cross at an angle of 35' the south line of the 80 acres so located; thereby causing a conflict between said two tracts on the east side of said 155-acre tract forming a triangle with a base of 12 1/2 feet and approximately 1,240.7 feet long; and leaving a vacancy of the same dimensions on the west side thereof.
Appellees assert title to and seek to recover by metes and bounds their 75 acres, not as a parallelogram constructed on the south line of the 155-acre tract as its base, but as being the portion of said 155-acres remaining after appellant Woods and his assignees have been set aside their 80 acres in the form of a parallelogram based upon the north line of said 155-acre tract. It is appellees' contention, and the trial court so found, that it was the intention of J. H. Fry and wife, as manifested by their written contracts with appellees and with Woods, pursuant to which the deeds were executed, and of which all parties had notice, and by the oral testimony admitted over their objections, to sell and convey to Woods the north 80-acres of said 155-acre tract, the remaining 75-acres to be conveyed to appellees, and that said deed to appellees should be so construed. Fry and wife also disclaimed, in their answer, except as to their half of the royalty retained by them, as to both appellants and appellees any other interest in the minerals under entire 155-acres.
We shall not undertake to discuss in detail the several propositions presented by appellants. Their chief contentions are: (1) That in a trespass to try title suit, plaintiff must recover, if at all, on the strength of his own title; (2) that the deed from the Frys to appellees to the 75 acres, being clear and unambiguous on its face, and there being no pleadings of any fraud, accident, or mistake in its execution, nor any plea to reform it, the deed is conclusive against appellees; (3) that all previous negotiations and contracts, whether written or oral, were merged into said deed and could not be resorted to to make it cover any other lands than those expressly covered by its terms; and that, consequently, the trial court erred in receiving or considering any of such evidence, and in finding and adjudging the 75-acre tract to appellees in any other shape than that of a parallelogram.
It is too well established to require citation of authorities that in a suit in trespass to try title, plaintiff must recover, if at all, upon the strength of his own title. We pass then to appellants' other contentions.
We are of the opinion appellants are correct, and that it was error to admit the contracts between the Frys and the parties to this suit; and also error to permit the several witnesses complained of to testify concerning prior negotiations between the
parties and what lands J. H. Fry and wife intended to sell and convey to appellants and appellees. Such negotiations and contracts were only executory, and when the deed to appellees was executed all previous negotiations, whether written or oral, were merged into it, and in the absence of some ambiguity in the deed, as stated by this court in Whitehead v. Weldon (Tex.Civ.App.) 264 S.W. 960, "such final contract became the only repository and appropriate evidence of their agreement." See numerous authorities there cited; also, 18 C.J. 270.
In Luckenbach v. Thomas (Tex.Civ.App.) 166 S.W. 102, a case in which a purchaser sought to prove prior negotiations in a foreclosure on vendor's lien notes, the court said:
"The deed and notes constituted the final contract between the parties, into which all previous negotiations and agreements became merged."
Directly in point, also, is the case of Newmyer v. Williams (Mo.App.)245 S.W. 56.
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* Writ of error granted April 11, 1928.
Suit by appellees as plaintiffs against appellants in trespass to try title to 75 acres of land in Brown county. Judgment was for appellees.
The facts controlling in this appeal are substantially as follows: J. H. Fry and wife were the common source of title to. 155 acres of land out of the George Stubblefield survey No. 622 in Brown county, on which acreage they had executed a standard form oil and gas lease to W. V. Lester. Thereafter by deed dated June 30, 1926, J. H. Fry and wife conveyed to appellees an undivided one-half interest in and to their royalty, or in the oil, gas, and other minerals,
subject to the Lester lease, on and under 75 acres out of said Stubblefield survey, describing same as follows:
"Part of the George Stubblefield survey No. 622, abstract No. 837, and being the south 75 acres of the west 155 acres of the following described 290.65-acre tract, to wit," said 290.65 acres being described by metes and bounds.
Two days later, on July 2, 1926, said J. H. Fry and wife by deed of that date conveyed to C. D. Woods, through whom the other appellants claim, a similar one-half undivided interest in their royalty on and under 80 acres out of said survey, describing same as follows:
"80 acres out of the N.W. corner of the George Stubblefield Sur. No. 622, which is the north 80 acres out of the west 155 acres of the north one-half of said Stubblefield survey."
Neither of these deeds makes any reference to the other, and neither is made by its terms in any manner dependent upon the other, but each is a distinct and complete instrument in itself. They were not contemporaneous, nor a part of the same transaction.
The metes and bounds of the 155-acre tract are well fixed. The north and south lines are each 2,481.4 feet in length. The south line runs due east and west. The north line, running east from the northwest corner of said tract runs S. 89° 25' E., or a variation south from a due east and west course of 35'. The east and west lines of said tract are parallel. The west line is 2,733.3 feet long, but because of the slight deviation of the north line from a true east and west course, the east line of said 155-acre tract is shortened to 2,708.3 feet, or 25 feet less than the length of the west line.
Both parties have briefed the proposition and are agreed that where a deed calls for a particular quantity of land out of a side or corner of a larger established tract of which two adjoining sides are given, without a more definite description, it should be laid off in the form of a parallelogram on the given sides. This rule seems well established. See 18 C.J. 293; Cullers v. Platt, 81 Tex. 261, 16 S.W. 1003; Pruett v. Robison, 108 Tex. 283, 192 S.W. 537; Diffie v. White (Tex.Civ.App.)184 S.W. 1067; Koons v. Burkhart, 68 Ind. App. 30, 119 N.E. 820.
In the instant case, with reference to each of the deeds above mentioned, three sides of the tract are fixed, with only acreage called for in each deed. In applying this rule to appellees' deed to the 75 acres, it would be laid off as a parallelogram with the south line of the 155-acre tract as a base, and its east and west lines each 1,316.4 feet long. Applying the same rule to appellants' deed, their 80 acres would form a parallelogram with the north line of said 155-acre tract as its base, and its east and west lines each 1,404.4 feet long. Hence the north line of the 75 acres as thus located would cross at an angle of 35' the south line of the 80 acres so located; thereby causing a conflict between said two tracts on the east side of said 155-acre tract forming a triangle with a base of 12 1/2 feet and approximately 1,240.7 feet long; and leaving a vacancy of the same dimensions on the west side thereof.
Appellees assert title to and seek to recover by metes and bounds their 75 acres, not as a parallelogram constructed on the south line of the 155-acre tract as its base, but as being the portion of said 155-acres remaining after appellant Woods and his assignees have been set aside their 80 acres in the form of a parallelogram based upon the north line of said 155-acre tract. It is appellees' contention, and the trial court so found, that it was the intention of J. H. Fry and wife, as manifested by their written contracts with appellees and with Woods, pursuant to which the deeds were executed, and of which all parties had notice, and by the oral testimony admitted over their objections, to sell and convey to Woods the north 80-acres of said 155-acre tract, the remaining 75-acres to be conveyed to appellees, and that said deed to appellees should be so construed. Fry and wife also disclaimed, in their answer, except as to their half of the royalty retained by them, as to both appellants and appellees any other interest in the minerals under entire 155-acres.
We shall not undertake to discuss in detail the several propositions presented by appellants. Their chief contentions are: (1) That in a trespass to try title suit, plaintiff must recover, if at all, on the strength of his own title; (2) that the deed from the Frys to appellees to the 75 acres, being clear and unambiguous on its face, and there being no pleadings of any fraud, accident, or mistake in its execution, nor any plea to reform it, the deed is conclusive against appellees; (3) that all previous negotiations and contracts, whether written or oral, were merged into said deed and could not be resorted to to make it cover any other lands than those expressly covered by its terms; and that, consequently, the trial court erred in receiving or considering any of such evidence, and in finding and adjudging the 75-acre tract to appellees in any other shape than that of a parallelogram.
It is too well established to require citation of authorities that in a suit in trespass to try title, plaintiff must recover, if at all, upon the strength of his own title. We pass then to appellants' other contentions.
We are of the opinion appellants are correct, and that it was error to admit the contracts between the Frys and the parties to this suit; and also error to permit the several witnesses complained of to testify concerning prior negotiations between the
parties and what lands J. H. Fry and wife intended to sell and convey to appellants and appellees. Such negotiations and contracts were only executory, and when the deed to appellees was executed all previous negotiations, whether written or oral, were merged into it, and in the absence of some ambiguity in the deed, as stated by this court in Whitehead v. Weldon (Tex.Civ.App.) 264 S.W. 960, "such final contract became the only repository and appropriate evidence of their agreement." See numerous authorities there cited; also, 18 C.J. 270.
In Luckenbach v. Thomas (Tex.Civ.App.) 166 S.W. 102, a case in which a purchaser sought to prove prior negotiations in a foreclosure on vendor's lien notes, the court said:
"The deed and notes constituted the final contract between the parties, into which all previous negotiations and agreements became merged."
Directly in point, also, is the case of Newmyer v. Williams (Mo.App.)245 S.W. 56.
With the south line of said 155-acre tract agreed upon and well established, and its east and west lines also fixed and parallel, a call in said deed for "the south 75-acres" of said 155-acre tract described and set apart to appellees said 75-acres in a parallelogram under the decisions and the rules of law upon which both parties agree, as definitely and specifically as if same had been so described by metes and bounds in said deed. The court in Diffie v. White, supra, held:
"What the law supplies in a written instrument is to be treated with as much sanctity as that which the parties have themselves put there."
And in the same case the general and well-accepted rule is also laid down that —
"We must gather the intention of the grantor from the language used; and, where there is no conflict in the terms of the description, and that description fits one tract of land and no other, there is no latent ambiguity and no occasion for the admission of extrinsic evidence to explain the intentions of the grantor. Jamison v. N.Y. T. L. Co. (Tex.Civ.App.) 77 S.W. 969; Thompson v. Langdon, 87 Tex. 254, 28 S.W. 934; Johnson v. Archibald, 78 Tex. 96, 14 S.W. 266, 22 Am.St.Rep. 27; Converse v. Langshaw, 81 Tex. 277, 16 S.W. 1031."
Supporting this rule may also be added Benskin v. Barksdale (Tex.Com.App.) 246 S.W. 363; Gibbs v. Barkley (Tex.Com.App.) 242 S.W. 463; Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1044; Owen v. Trail,302 Mo. 292, 258 S.W. 699; and Ashbaugh v. Ashbaugh, 273 Mo. 353,201 S.W. 74. In the case last cited the court said:
"The intention must be ascertained from the language used, from what the grantor actually said, and not what he may have meant to say," and the language must be given its usual and ordinary meaning.
In Buie v. Miller (Tex.Civ.App.) 216 S.W. 633, it is said:
"It is well settled that nothing passes by deed except what is described in it, whatever the intention of the parties may have been.
"While parol evidence is often admissible to ascertain what lands are embraced in the description, such evidence cannot make the deed operate upon land not embraced in the descriptive words."
We conclude therefore that there was no ambiguity in the deed to the 75 acres, either latent or patent, and in the absence of any plea of fraud, accident, or mistake, and of any pleading seeking to reform it, said deed was conclusively binding on appellees, and that evidence of the intentions of the grantors was immaterial and inadmissible to vary it.
There was admitted in evidence, without objection, however, the deed from J. H. Fry and wife to Woods conveying the north 80 acres. It is admitted, in effect, by Woods in his answer to appellees' petition, that he and his assignees claim only under this deed and deraign title from no other source. As above stated, these deeds, as construed, necessarily create a triangular conflict on the east side of said 155-acre tract, and a corresponding triangular vacancy on its west side. Appellees did not seek to recover the lands in the triangular conflict; but they do assert title to the triangular vacancy on the west, on which is situated a producing well, which narrow tract falls without the boundary lines of both the 75-acre tract and the 80-acre tract as described in the deeds from the Frys to Woods and to appellees. Under our construction of these deeds, the Frys had not by their deeds parted with their title to this triangular tract on the west. Nor had appellees shown, under their own chain of title, any title thereto. But the Frys have filed a disclaimer of any interest therein against appellees, and with the other appellants have prosecuted a common appeal. This disclaimer, we think, inures to the benefit of the appellees, and as against all appellants sustains the trial court's judgment under the undisputed competent evidence, even though said court has based said judgment on other grounds.
Nor do we deem the subsequent contract between all the parties hereto, relied upon by appellees, as a recognition by appellants of title to the disputed tract in appellees, and thus estopping appellants to deny same. As we construe this agreement, it refers to and merely recognizes the rights of the respective parties as vested in them by the deeds, and cannot be interpreted as adding to, or in any manner varying, the express terms of the deeds themselves.
We have referred to the conveyances and
the tracts of land in general terms, but the only interest claimed by any of the parties hereto, except the Frys, is an undivided fractional part, as stated in the first part of this opinion, in and to the oil, gas, and other minerals under said lands.
Other questions are raised by appellants, but in view of what we have already said it becomes unnecessary to discuss them. For the reason stated, the judgment of the trial court will be affirmed.
Affirmed.