Fewell v. Kinsella , 1912 Tex. App. LEXIS 995 ( 1912 )

On Motion for Rehearing.

[10] In view of the supplemental motion for rehearing, we may call attention to the fact that the deed from Blacker and wife to Catherine Davis described the property conveyed as adjoining the property theretofore conveyed by them to Hannah Metzler on the -day of December, 1880, and, after describing the property as extending “to the parcel heretofore sold and conveyed, as aforesaid, to Hannah Metzler,” it adds, “so as to include one foot of said wall between the said property heretofore sold and conveyed to Hannah Metzler by us, said wall being a party wall, one foot of which is on the parcel herein conveyed, and one-half of the cost of building said wall having been paid by the said Martha P. Blacker, and one-half having been paid by the said Hannah Metzler.” It is upon this deed that appellant founds his claim to the land up to the middle of the party wall, contending that it must be presumed from the fact that it states that one-half of the wall was upon the property conveyed; that by some conveyance. oral or otherwise, appellant had in tlie meantime obtained title to tbe extra foot from Blacker and wife.

The deed to Catherine Davis was intended to convey, as it states, all the land up to the land conveyed to Hannah Metzler by the deed of December, 1880. The reference to this particular deed is inconsistent with the presumption that Hannah Metzler had any other conveyance from Blacker and wife, extending her boundary beyond the 31 feet. The only foundation for such a claim is the fact, evidenced by said deed, that Blacker and wife and Hannah Metzler, in the meantime, had erected the party wall, each paying half the cost thereof, which party wall was in fact placed just over the line and practically all upon Blacker’s property. It seems to us that, in the absence of any conveyance of the additional foot to Mrs. Metz-'ler, and in view of the fact that the deed to Mrs. Davis describes all the property up to what had been deeded to Hannah Metzler by the deed of December, 1880, and the fact that Hannah Metzler only sold the property to appellant as 31 feet, and referring to her deed from Blacker and wife, conveying 31 feet, the only reasonable theory is that the party wall was placed where it was under a mistake of the adjoining owners as to the position of the dividing line between the properties. Under such circumstances, the existence and use of the wall as a common or party wall would not change the rights of the parties in the land on which the wall stood. Nor was there anything in the evidence to have warranted a finding that Few-ell, who was plaintiff in the case, ever acquired title to the extra foot of land claimed by him.

The motion is overruled.