I concur in the affirmance of the judgment upon the holding that if the deeds to Woods and appellees be construed not to convey the triangular tract in controversy, appellees are entitled to recover on the disclaimer of the Frys.
Appellees as plaintiffs below could only recover on the strength of their own title. But since the Frys disclaimed they were entitled to judgment against them on their disclaimer, and therefore the Frys' title could not be asserted by Woods as an outstanding title against appellees. If the Frys had not been made defendants, appellants' contention upon this phase of the case would be correct.
I find myself unable to concur in the holding that the deeds to Woods and appellees must be given the construction that the land in controversy was not conveyed by the Frys and that there was a conflict or overlapping of the two tracts conveyed, respectively, in the deeds to Woods and appellees. My conclusions upon this issue rest upon two considerations.
The deeds to Woods and appellees conveyed separate tracts out of a larger and well-defined tract. The Woods deed was executed in consummation of a contract dated June 26, 1926. It bound the Frys to convey and the subsequent deed conveyed the same tract of land. There is no variance in description in so far as these instruments are concerned. This contract fixed the rights of Woods and the Frys as of its date, both between themselves and as to all parties dealing thereafter with the Frys who had knowledge or notice of the existence of that contract. Woods could have enforced the contract by specific performance, both as against the Frys and as against any one dealing with them with notice of the contract. Of course, Woods and the Frys by mutual agreement could have abrogated or modified the terms of the contract so long as rights of third parties had not attached; but they did not do so. They carried it out as written in the deed of July 2, 1926. On June 28, 1926, appellees contracted with the Frys for 75-acres out of the south part of the larger tract. Appellees (and, of course, the Frys also) had full knowledge of the contract with Woods whereby he was entitled to a conveyance of the north 80-acres of this larger tract. There were only 155-acres in the tract, and if the south 75-acres is bounded on the north by a line parallel with the south line of the larger tract, it would necessarily leave title in the Frys to a small triangle (the land in question), and cover a small triangle of like acreage in conflict with the land contracted to be conveyed to Woods. If this construction be placed upon the contract with and deed to appellees, then Woods had the right, in the absence of any subsequent conveyance to him by the Frys, to enforce specific performance of his contract, and recover the triangle in conflict, both against the Frys and appellees; and, in view of his deed from Frys conveying the land described in his contract, he could have maintained trespass to try title as to this conflicting triangle against appellees. His rights were in no way affected by the fact that appellees' deed antedated his. The doctrine of merger has no application to this particular state of facts. The Woods contract was, of course, merged in the deed, but as there was no variance between the deed and the contract, the deed was merely in consummation of the contract, and the rights of Woods under the deed were enforceable as of the date of his contract against the Frys and appellees; the latter having contracted and accepted a deed from the Frys, with knowledge of the Woods contract. The doctrine of merger does not extend to the obliteration of the contract for the purpose of showing the inception of Woods' title under his deed and his rights thereunder against parties dealing with the Frys subsequent to and with notice or knowledge of the Woods' contract. Parol evidence as to what was in the minds of Woods and the Frys at the time the Woods contract was executed would not have been admissible, even as between themselves, to vary the terms of the contract. Under this state of the facts the land described in the Woods contract and deed must be laid off by fixing its south line parallel to the north line of the larger tract.
This being the status of the rights as between Woods and the Frys at the time appellees' contract was entered into, and the Woods contract, and by implication of law its legal effect, being known to appellees and the Frys, it will, I think, be presumed that they dealt with each other in the light of that contract, and their dealings should be construed with reference to it.
It is conceded by all parties to the suit, and the surrounding facts and circumstances demonstrate conclusively, that the Frys and appellees intended that there should be no vacancy or conflict in the two conveyances as regards the larger tract out of which they were carved. That tract contained exactly *Page 899 155-acres. The Woods tract covering the north 80 acres must be delineated by drawing its south line parallel to the north line of the larger tract. It was manifestly the intention of the Frys and appellees to embrace in the latter's contract and deed the remaining 75-acres in the larger tract. It was described as the south 75-acres of that tract. To delineate it by the arbitrary rule generally applied to such description would violate the manifest intention of the parties as shown by the facts within their knowledge at the time. The evidence shows that the slight variation in course between the north and south lines of the larger tract was not known to any of the parties at the time either of the contracts or deeds or the contract noted below was executed. In the light of all of these circumstances, I am unable to concur in applying the arbitrary rule contended for so as to defeat the manifest intention of the parties as shown by the facts and circumstances and condition of the subject-matter as they existed at the time the several transactions took place. The general rule applied in the majority opinion is well established. It is, however, only a rule of construction which the courts apply as being a reasonable interpretation of the intention of the parties, in order to uphold a conveyance, rather than declare it void for uncertainty in description. Where land is described generally by acreage out of a corner or off a side of a larger tract, the courts will construct a survey of the designated acreage, by lines drawn parallel to the designated line or lines of the larger tract; not, however, because the parties have so stated in their writing, but because the writing is silent on the subject, and the presumption that they so intended is deduced from what men ordinarily would do under like circumstances. In the absence of some presumption, such description must be held void for uncertainty. The general rule must necessarily apply to Woods' contract, because no other rule was applicable at the time it was executed. It should not, however, I think be applied to appellees' contract and deed, when to do so would create the situation above outlined and defeat an intention of the parties which is both manifest and conceded. While this view may be in conflict with the literal language of the Texarkana case and other cases cited, I do not believe that the principle upon which it should be held to apply in the present case is at variance with those decisions.
I am further of the opinion that this construction of the boundaries in appellants' contract and deed is evidenced by the subsequent (July 28, 1926) contract of all the parties to both contracts and deeds. This contract was executed for the purpose of avoiding any controversy over the interest which the several parties might assert in royalties from oil wells drilled upon the respective tracts. It recited the Woods deed, giving the volume and page where recorded, but giving as its date June 26, 1926, the date of the contract in consummation of which it was executed. It recited appellees' deed in like manner, giving the volume and page of its record, but citing as its date the date of the contract in consummation of which it was executed. Woods disclaimed any interest in the property conveyed by appellants' deed and appellants disclaim any interest in the property conveyed by the Woods deed. The Frys join in this contract.
If we should construe the two deeds as in the majority opinion, thereby creating a conflict between the Woods and appellees' deeds, then we have the anomalous situation of Woods disclaiming any interest in the lands conveyed to appellees embracing this conflict, and appellees in the same instrument disclaiming any interest in the lands conveyed to Woods likewise embracing this conflict. No one will contend that the parties had such intention. This contract demonstrates that the Frys, Woods, and appellees construed the two deeds as together conveying the entire 155-acres. We are therefore thrown back to the original dealings of the parties in order to delineate the two tracts in accordance with this manifest intention of this writing to which all concerned were parties. Reverting, then, to the original transactions in the light of this manifest intention, we arrive at the same conclusion above expressed.
For these reasons I concur in the judgment of affirmance.