Hamman v. Keigwin , 39 Tex. 34 ( 1873 )

McAdoo, J.

This was ah action of trespass to try title, in the District Court of Robertson county, instituted by the appellant against the appellee, to recover a narrow strip of land running entirely across the Mary Peterson league, the land in controversy containing about two hundred and eighty-four acres.

The appellant set Up his claim to the land in controversy under a quit-claim deed from the heirs of John Peterson, deceased (who was the son and sole heir of Mary Peterson, the original grantee), to the Mary Peterson league.

The appellee plead not guilty, and also plead specially, setting up certain title bonds from John Peterson to him, and also a deed of warranty from John Peterson to him, which he alleged was in pursuance of the title bonds above mentioned; but he also plead that there was a mistake in the deed, by which a portion of the land included in the title bonds was omitted in the deed; and he prayed for a correction of the mistake and for equitable relief.

The deed from Peterson to appellee was duly recorded in 1852. The title bonds were not recorded in the county until after the purchase by appellant. The appellant acquired the quit-claim deed in 1869. Suit was filed on January 26, 1872.

The appellee was in possession, and had made large and valuable improvements on the land in controversy, before the acquisition by appellant of the quit-claim deed. The deed of Peterson to appellee, Keigwin, in its terms, -does not include the land in controversy ; and, the title bonds not being recorded, in the absence of actual notice of the alleged mistake by the appellant Hamman, if the conveyance to him were by deed of warranty instead of a quit-claim deed, and were not from John Peterson’s heirs, this case would admit of a ready and easy solution; being, in such a case, a bona fide purchase for a valuable consideration, without notice, no equities between John Peterson and Keigwin could possibly be made to affect him.

But Hamman, the appellant, relies on a quit-claim deed, and that deed comes from the heirs of Keigwin’s vendor, and Keigwin was in actual possession before the purchase and payment by Hamman. Is Hamman, therefore, an innocent purchaser without notice % Does his purchase, under the circumstances, raise such equities in his behalf as will forbid the correction of any mistake in the 'deed to Keigwin, if such mistake exist ?

In the case of Rogers v. Burchard, 34 Texas, 441, this court decided, on the authority of Morse v. Godfrey, 3 Story’s C. C. R., 365, and Van Rensalaer v. Kearney; 11 Howard, 322, that “ a quit-claim or deed of release ‘ of all his right, title, and interest’ purports to convey, and does-convey, no more than the present interest of the grantor;” and on the authority of Oliver v. Piatt, 3 Howard’s U. S. 410; Smith’s Heirs v. The Bank of Mobile, 21 Ala., 124; and Tarras v. Patten, 20 Mo., 81, that “one holding a. quit-claim deed cannot be" regarded as a bona fide purchaser without notice.”

In that case the doctrine laid down in Watkins v. Edwards, 23 Texas, 447, that “a party who desires the benefits accorded to innocent purchasers must show, first,, that he was a bona fide purchaser; second, that he purchased without notice, actual or constructive; third, that he paid the purchase money, and this he must show independent of any recital in the deed,” was approved by this court.

We have in this case reviewed the authorities above referred to, and see no reasons to doubt the correctness of the rulings of this court in the case of Rogers v. Burchard.

It appearing that in this case Hamman purchased by quit-claim, and from the heirs of John Peterson, it follows, from the foregoing reasoning and authorities, that - he can set up no equities, nor resist any which could not. be set up and resisted by the heirs themselves, and the heirs - themselves can set up none, and resist none, which could not be setup and resisted by John Peterson himself, if: living.

It therefore becomes necessary that we examine the ■ record and determine whether the equities set up by the; appellee, Keigwin, in the alleged mistake in the deed,, exist; and if so, to determine the remedy.

The Peterson league was sold by John Peterson under-different conveyances to different persons, and it may be-necessary to examine the various conveyances and contracts of sale in order to determine the question involved, in this case.

The first of the sales of the league was in 1844, whereby John Peterson conveyed to A. G. Gholson 1514 acres, by metes and bounds as follows: “Beginning at the-southwest corner of the league, running with the south boundary line.of said survey so far as to include 1514-acres by running at right angles from the south boundary line, so as to intersect the north boundary line of said survey.” This left the balance of the league in a rectangular shape. There was no actual survey, and no lines - or corners marked, when this tract of 1514 acres was sold-to Grholson.

On the fourth of February, 1850, Keigwin purchased by title bond from John Peterson, 1800 acres of the league, thus described: “To begin at the northeast corner of said league survey, running with the north boundary line, to a line of 1514 acres sold to A. G. Gholson,, and with Gholson’s line, with the east boundary line, sons to include the quantity.”

On the fifteenth of March, 1850, Peterson sold to S. Compton Smith 320 acres of the league, “to be sold off of either corner of the unsold portion of the said league, as the said Smith may prefer.”

On July 8, 1850, Peterson, also by title bond, sold to Keigwin, for $2000, “seven hundred and ninety Jour acres of land, the balance' of his mother’s (Mary Peterson’s) headright league, beginning on the east line of said survey, at the southeast'corner of a tract of 1800 acres sold to said Keigwin off of said survey on the fourth day of February, 1850 (for which said Keigwin holds his bond for a deed, executed on that day), and running with the south boundary of said tract of 1800 acres to the east - boundary line of a tract of 1514 acres sold to A. G. Gholson; thence with Gholson’s line and with the east boundary line, so far as to include the quantity, including or being the whole balance of said survey except 320 acres sold to S. C. Smith out of the southeast or southwest corner of the unsold part.”

Peterson executed a deed to Keigwin, December 19, 1850, to the following described land: “A part of the headright league of land granted to Mary Peterson,” “beginning at a stake on the northeast corner of said league survey, from which a post oak bears S. 49° W. 8 varas; thence S. 30° E. 4672 varas to a stake for south•east corner of the survey, from which a post oak bears, marked S. S. 12° W. 3 varas; thence S. 60° W. 3527 varas to a stake in the south boundary line of said survey ; thence K. 30° W. 4672 varas to a stake in the north boundary line of said survey; thence 1ST. 60° E. 3527 varas to place of beginning, containing an area of 2914 .acres of land.” The consideration of this deed was $975.

The testimony shows that at the time this deed was made Keigwin had also purchased the 320 acres sold to Smith, and the purchase money of the two tracts con- , veyed by title bond to Keigwin was paid. It further shows that the deed was intended to supersede the several title bonds to Keigwin and Smith, and to cover the land embraced in them all.

The question to be determined is, taking the whole transaction together, considering the various title bonds and the considerations upon which they were executed, .•and the deed and all the facts connected with the trans.action, what were the intention and the understanding of John Peterson and Keigwin? Did Peterson intend to -■convey in the deed to Keigwin, as the culmination of the ¡dealings in regard to the land, all of the Mary Peterson league except the 1514-acre tract sold to Gfholson ? And did Keigwin understand and believe that he was purchasing and that the deed conveyed it all ? If so, then this court must enforce, in its decree, the rights of these parties accordingly.

It is insisted by the counsel for the appellant, that the parol testimony of Patrick and' others was erroneously admitted on the trial in the court below. We think not. Parol testimony can, in no case, be admitted to vary the-terms of a written contract; but it may be received in all cases to explain an ambiguous one. Though the deed, by itself, and without reference to the attendant facts and circumstances, could not be explained by parol proof to-include the land in controversy, yet, when viewed in connection with the title bonds which preceded it, and the transactions which led to its execution, and the considerations on which it was based, it is apparent that resort was properly made to parol evidence, explanatory of the ambiguities in the several title bonds and the deed. The terms of the two title bonds to Keigwin called for a line, but called for a shorter distance than would reach it; the last one called for a certain amount of land, which was less than the true amount, and yet designated it as all the land previously unsold.

What did he mean—all or only the number of acres - mentioned ? The terms are ambiguous and contradictory..

It was proper to determine, by parol evidence, the intent of the parties. It was done to the satisfaction of the jury. They decided in favor of the appellee. There was ample evidence to sustain their finding, and we can scarcely see how they could have found otherwise.

The judgment of the court below must therefore be-affirmed.

Affirmed*.