Magnolia Petroleum Co. v. Jones

WILLIAMS, Justice

(dissenting).

In construing the description in a deed or other grant, the ultimate purpose is to determine what land the grantor intended to convey. 14 Tex.Jur. 910; Ford v. McRae, 128 Tex. 106, 96 S.W.2d 80, and authorities therein cited. “All rules of construction are simply means to a given end, being those methods of reasoning which experience has taught are best calculated to lead to the intention, and generally no rule will be adopted that leads to defeat of the intention.” 8 R.C.L. pp. 1037, 1038. The rules of construction discussed in the authorities cited in the majority opinion are merely a reaffirmance of this general rule. In each of above-cited cases, the court has either invoked, modified or made an exception to some rule of construction to give effect to the intent as gathered from the facts of the particular case.

No reason has been advanced in appel-lees’ able brief, and, in my judgment, none can be advanced under this record which discloses an intent of G. W. Jones, the grantor, to reserve or retain the .73-acre parcel of land in controversy. It is further without reason that he would want to retain a tract in such an irregular shape. Being agricultural land, and owning no adjoining property, this strip became inaccessible and practically valueless to this grantor after the sale. From these facts, without resorting to any rule of construction that might be applicable to latent conflicting calls, it is obvious that the grantor intended to convey to the west line of the 120-acre tract. The intent to convey to the west line of the 120-acre tract is further fortified by the calls in the deed to the fifty ácres. Here each and every call is to go to or run with a line of the 120-acre tract. It begins at a point in this west line, the southwest corner, and ends there. The south distance call of 950 varas and the courses called for are the same in each deed.

As a general rule, a call to go to an artificial object will prevail over and "control a call for distance. 7 Tex.Jur. p. 188, § 50. The marked trees which the witness Jones testified he found and those he said the surveyor marked on a new line are not called for in the deed. The stone called for at a new northwest corner “was neither marked nor described so as to be distinguishable from any other objects of like character.” But the west line of the 120-acre tract was established and marked. The call to go south with the “west boundary line of said G. W. Jones 120-acre tract” is an adjoinder call. Carter v. Texas Co., 126 Tex. 388, 87 S.W.2d 1079. To give this adjoinder call the dignity it is entitled to over an unde-scribed and unmarked stone, Matthews v. Thatcher, 33 Tex.Civ.App. 133, 76 S.W. 61, and over a call for distance, 7 Tex.Jur. p. 188, would be most consistent with the true intention evident from the calls in the deed. It would give effect to each and every call to or with a line of the original tract as expressed in the deed. Only one call, and that for distance, would be disregarded. To give effect to this adjoinder call would be in keeping with the intent so patent that the grantor did not intend to leave an isolated and practically worthless strip of land. Whereas, to give preference to the call for distance over a well established artificial object would disregard two calls in the deed, namely, for adjoinder and to run with the west boundary line.

In my judgment, for the reasons above discussed, this parol evidence to contradict the terms of the deed and the intent of the grantor was inadmissible and appellees do not show a probable right of recovery. Anderson v. Stamps, 19 Tex. 460; Goldman v. Hadley, Tex.Civ.App., 122 S.W. 282; Swann v. Mills, Tex.Civ.App., 219 S.W. 850; 7 Tex.Jur. p. 164, p. 123; 11 C.J.S., Boundaries, p. 621, § 53; State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228.

PER CURIAM.

On January 18, 1940, our Court of Civil Appeals affirmed the judgment of the trial *548court, and thereafter, we submitted certified questions determinative of the issues involved to the Supreme Court. Those questions having been answered favorable to the contention of the appellant, we now set aside our order of affirmance, and judgment is entered in accordance with the views as expressed by the Supreme Court in answer to the certified questions. Magnolia Petroleum Company v. J. T. Jones et al., Tex.Com.App., 158 S.W.2d 548.

The interlocutory order appointing a receiver is reversed and such order is set aside and held for naught.

Reversed and rendered