On Motion for Rehearing.
At a former term this court affirmed the disposition made below of the John Harris tract, but reversed the award of an undivided 3 acres out of the Harry Harris tract to Appellee Mrs. Jenkins and instead rendered its judgment in her favor for only an undivided one-acre interest in that tract, vesting the other undivided 2-acre interest therein in appellant Mrs. Minnie Rettig.
Both appellants and appellee Mrs. Jenkins have presented motions for rehearing, the former complaining of the affirmance as to the John Harris tract, the latter of the rendition against her as to the 2-acre interest in the Harry Harris tract.
Appellants criticize both features of our holding from which the affirmance noted proceeded; that is, that the deed from Taylor Harris to Tullock conveyed all the'land he owned in the John Harris tract rather than such interest only as he had inherited from his mother, and that he then had no homestead interest in the tract.
In support of the claim that the homestead interest did attach in favor of Taylor Harris and his wife, the case of Massillon Engine & Thresher Co. v. Barrow (Tex. Com. App.) 231 S. W. 368, as well as the dissenting opinion of Judge Pleasants in Ward v. Walker, (Tex. Civ. App.) 159 S. W. 320, are now cited and relied upon. After an examination of both opinions, however, wé conclude that, when applied to the facts here, controlling among which is John Harris’ refusal to abandon any portion and his continued exercise until death of his individual homestead right in and possession of the’ whole 25 acres, they directly uphold our original determination. 1
Neither are we able to recede from the other conclusion that the deed to Tullock did not limit the amount of land that passed to such interest as Taylor Harris had previously inherited from his mother.
[4] The motion of appellants is therefore overruled. In deference to their request, it may be here affirmatively stated that the fact findings of the lower court, being unat-tacked, are binding upon and adopted by this court.
On the issue urged by the appellee Mrs. Jenkins that our former construction of the effect of the deed from John Harris to Agnes Dow was erroneous, we have become convinced that we were wrong.
We held in effect:
“It conclusively appears that only one acre of John Harris’ interest was intended to be thus conveyed. The terms of the deed, in the light of these attendant circumstances, seem to us to clearly indicate that this was the purpose and intent of all parties concerned. The instrument should he so construed, and its effect limited accordingly.”
[5] Re-examination of the terms of the deed itself, together with the extraneous facts in evidence, leads us now to the coit-elusion that it could not fairly be said that John Harris only intended to convey one acre so far as he was concerned, but that he meant to convey and to assume responsibility through his warranty for the passing of title to 3 acres of land, and that the recitation that it comprised one acre each off the subdivisions mentioned should be regarded as descriptive merely. There had then in fact been accomplished no such partition and, though not owning a specific 6¼ acres as he supposed or assumed, he did at that time actually own an undivided interest of more than 3 acres in the whole tract. Neither did the other tenants to whose interests he similarly refers own any such particular 6¾-acre tracts as he describes, their interest likewise being undivided in every acre of the whole, so that in these circumstances we think, if the description given is sufficient to lead to identification of a definite tract of 3 acres, and the segregation of that would neither exceed the share in the whole to which, John Harris was entitled, nor prejudice the rights of the other joint owners, his deed should he given that effect.
[6] The survey and map referred to in the deed of a partition which was never consummated could in no way indicate the several interests owned in the tract by the persons named, but could and did furnish a ready means of identification of the three acres the grantor was conveying, and so were not only admissible, but were received in evidence for that purpose. It has been well said (Blackwell v. Scott [Tex. Civ. App.] 223 S. W. 338) that the office of description in a deed is not to identify the land, but to furnish means of identification, and, when this deed is consid*619ered in connection with the map, the location of the land called for upon the ground becomes at once definite and certain. Then the objection .raised that this instrument was void as a conveyance because of insufficiency of description cannot be well taken.
[7] That John Harris did at the time own more than a 3-acre interest in the whole tract, as already recited, was undisputedly shown.
There only remains the inquiry whether the result of such a construction of John Harris’ deed would be the infliction of any injury upon his co-owners. Here likewise the contrary effect appeared, it being admitted below by all parties that, aside from the improvements placed on the three acres by Agpes Dow and assigns, there was no difference in the value of the acreage throughout the 25-acre tract, and the trial court found it to be equitable, under all the facts, to allot to Mrs. Jenkins the specific 3 acres she so held,
We have concluded that the situation thus presented falls under the well-settled rule that, where a tract of land is of equal value throughout, a purchaser from one joint tenant of a distinct part of the whole who has taken possession of and made valuable improvements on the segregated part will be protected in the tenure, provided what is so appropriated does not exceed the share to which the cotenant’s grantor was entitled and its being so set off to his vendee would work no prejudice to the rights of the other joint owners. Freeman on Cotenancy, § 205; Burleson v. Burleson, 28 Tex. p. 419; Arnold v. Cauble, 49 Tex. 533; Lasater v. Ramirez (Tex. Com. App.) 212 S. W. 936; Gosch v. Vrona (Tex. Civ. App.) 227 S. W. 220.
Further discussion is deemed unnecessary. The motion of appellee Mrs. Jenkins is granted, our prior judgment of rendition affecting the 3-acre interest is set aside, and the trial Court’s judgment is in all things affirmed.
Appellee’s motion for rehearing granted, and trial court’s judgment affirmed.