Since the affirmance of the judgment in this cause the appellants have filed their motion for rehearing which was by the majority of the court refused, the writer dissenting.
In affirming the judgment, we held that the deed of appellants to Granau, Sr., on its face conveyed the 10 acres of land in controversy to Granau, Sr. My first conception was that the deed did not convey said 10 acres, but later changed my mind and concurred with the majority in holding that it did so. However, since considering appellants' motion for rehearing, I have again reached the conclusion that the deed conveyed only a one-fourth undivided interest in the three tracts of land particularly described by metes and bounds in the deed, same being such part thereof as they inherited from Jennie Reese.
In the first paragraph of the deed it purports to convey all theone-fourth interest which the grantors inherited in the estate of Jennie Reese, and in said paragraph it is then recited: "More particularly inthe three tracts of land described as follows:" (Here follows a description of three tracts of land by metes and bounds).
Considering the recitals in the deed alone, it may well be doubted as to whether either the grantees or grantor had in mind the ten acres at the time of the execution of the deed. Apparently they did not have the same in mind, or else it would have been particularly described in the deed as the three tracts therein described.
Wherefore, if appellees are entitled to a recovery of the title to any part of the 10 acres in controversy, it is not by reason that it was in fact conveyed by the deed in question, but only upon their prayer for a reformation of the deed, which the writer has already held they cannot do because of the statutes of limitation pleaded by appellants.
That part of the deed by appellants to Granau, Sr., reciting: "Do grant, sell and convey unto the said H. F. Granau, of Austin County, Texas, all our one-fourth undivided interest in and to the estate of said Jennie Reese," is unquestionably only a general description of the property sought to be conveyed, and unquestionably that part of the deed reciting: "And more particularly (towit) our one-fourth undivided interest in and to the tracts of land," etc., followed by a description of these tracts described by metes and bounds, is special and particular description of the property conveyed.
It is well settled that, where there is a particular description in a deed of the property conveyed, a general description in such deed must yield to such particular description. Cullers v. Platt, 81 Tex. 258,16 S.W. 1003, 1004; Yarbrough v. Clarkson (Tex.Civ.App.) 155 S.W. 954, 955; Buie v. Miller (Tex.Civ.App.) 216 S.W. 630; Scheller v. Groesbeck (Tex.Com.App.) 231 S.W. 1092.
In Cullers v. Platt, supra, the deed in question conveyed by particular description by metes and bounds two tracts of land, and such description is followed by a general description reciting: "Containing all of said survey except 140 acres contained in said homestead." In that case the Supreme Court held that the description of the two tracts in the deed controlled, and only the land contained within the described metes and bounds passed by the deed.
For the reasons expressed, I dissent from the order refusing appellants' motion for rehearing.