Asher v. Gates

HAMBLEN, Chief Justice.

' I dissent' from the 'holding of the majority of the Court. As I understand the opinion filed, the holding is based upon the proposition that since there exists no “Denver Resurvey No. 2” in the City of Galveston, the description here involved is not ambiguous but is erroneous, described no land at'all, and thus falls within the rule announced in the- case of Texas Osage Cooperative Royalty Pool, Inc. v. Colwell, Tex.Civ.App., 205 S.W.2d 93, 94. In that case the description was “the west 160 acres of land, Section 16, Block P, Hale County, Texas”. While there existed a Block P in Hale County, there existed no Section 16 in Block P. An attempt was made to prove by parol that the grantor in the deed intended to describe Section 16 in Block S rather than in Block P. The court held that there was nothing ambiguous about the designation of “Block P”, and that parol evidence could not be introduced to prove that the grantor intended to describe other ■ and different land.

I think the case now under consideration is distinguishable from the cited case. Here, as in that case, there is nothing on the face of the instrument which indicates any ambiguity. If any exists, it is therefore latent. In order to locate the land described on the ground, it is necessary to refer to and examine the map records of Galveston County. Such examination reveals the following facts: 1. There is no “Denver Resur.vey No. 2”; 2. There is a “Denver Resurvey”; 3. There is a Block 2, in Denver Resurvey; 4. The block of Denver Resurvey which is designated on the map as “2”, bears also the designation on the same map, as “Org 175”. It seems to me that these disclosures, all of which would be apparent to anyone undertaking to locate on the ground the land described in the deed, would immediately give rise to the question as to what part of the description the “No. 2” referred. It could, as the majority opinion concludes it must, refer to “Resurvey”, in which event, as the court has held, the description is fatally defective, and describes no land at all. But to me it seems that it could also refer, perhaps not with equal rhetorical or grammatical correctness, but under the circumstances in this case, with greater logic, to Block No. 2, Denver Resurvey, in which event the description perfectly identifies the exact land which all of the extrinsic evidence, if properly admitted, shows was intended to be conveyed. The word “Resurvey” indicates a new or different survey of a pre-existing survey. And Block No. 2 of Denver Resurvey is in fact the same identical land as was designated as Block 175 of the original survey of the City of Galveston. If the word “Block” be parenthetically inserted before the designation “No. 2”, so that the final phrase of the description reads “in Denver Resurvey (Block) No. 2”, there would exist no doubt as to the land intended. Even if a comma be inserted between “Denver Resurvey” and “No. 2”, so that the phrase reads “in Denver Resurvey, No. 2” the intention of the grantor is likewise evident. And when consideration is given to the fact that Block No. 2 of Denver Resurvey is the same property as original Block 175, and is so designated upon the map, reference to which is called for by the description itself, coupled with the fact that there is no “Denver Resurvey No. 2”, the conclusion is quite possible and logical that the description contained in the deed means “Block 2” of Denver Resurvey, rather than “Denver Resurvey No. 2”. For these reasons, it seems to me that the description here involved is not, as the court has held, fatally defective, but rather is one which contains a latent defect. These same considerations distinguish this case from Masterson Irr. Co. v. Foote; Yarbrough v. Clarkson; Davis v. George; Browne v. Gorman; and West v. Hermann, which are cited in the majority-opinion. In those cases the description was erroneous whereas in this case the description, being capable of two constructions, is ambiguous. If this conclusion is correct, parol evidence is admissible to prove the intention of the grantor. The evidence here amply supports the jury verdict upon which the judnment is based, and in my opinion that judgment should be affirmed.