Peter C. Ragsdale v. J. A. Robinson, 48 Tex. 379

Moore, Associate Justice. This is an action of trespass to try title, brought by appellant, Ragsdale, against appellee, Robinson, for an undivided one-third of a tract of 200 acres of land, a part of a tract of 640 acres patented to John W. Cauble. All the important questions in this case arise out of, and depend upon, the construction and effect to be given to an instrument purporting to be a deed from appellant to 1ST. Killough, through and by which appellee claims to deraign his title.

By an agreement of the parties, this instrument has been sent up with the record, that the court may, from an inspection of the original instead of a copy, more fully and clearly apprehend the objections made to it, and more satisfactorily and correctly pass upon and determine them.

It may, however, be well, before entering upon the consideration of the supposed errors relied upon for the reversal of the judgment by counsel for appellant, to say that the fact of the original instrument being brought up with the record does not warrant objections being made to it here, which were not taken in the court below, even though it is manifest, from an examination of the instrument, that such objection, if taken at the proper time, should have been sustained.

The first point urged by appellant’s counsel for a reversal of the judgment, is that the court erred in admitting this purported deed from Ragsdale to Killough over his objections, which were: 1st. Said deed does not describe the land sued for. 2d. The deed is unintelligible, and describes no land whatever. To have warranted the court in excluding the deed from the jury, as has been, in effect, decided by this court, (Kingston v. Pickins, 46 Tex., 99,) it must have been able to say, from inspection of it, that it was absolutely void, or that it was for other and different land than that claimed by the plaintiff".

An inspection of the deed shows that it is a very inartificial instrument; that the draughtsman was extremely careless and indifferent to the proper discharge of the duty he had undertaken, or wholly unqualified to prepare such an instrument. But while this is the case, we cannot say the deed is void, or that it describes other and different land from that for which appellant sues. Nor did the testimony of the witness Ellis give any additional force to appellant’s objections.

The evidence of the witness was not addressed to the court to rebut evidence of the appellee to establish a predicate for the admission of the deed; nor was it called for, or necessary for any such purpose. It was testimony for the jury, to be weighed and considered by them in determining the issues on which it bore. "Whatever effect the court might believe it should have in determining whether the deed described any land at all, or if it did, in showing its proper locality, this effect could be attained only by the action of the jury on it, and such other testimony as might be submitted to them.

If it was material to show that appellant forwarded the deed to Killough, because he had received a letter from Killough requesting him to do so, the court did not err in excluding that part of appellant’s deposition to which appellee objected. The answer was not responsive to the question propounded, and was inadmissible to prove that the letter in question was from Killough. Evidence that either A or B did a particular act is not admissible to prove that A did it.

If, however, as we are inclined to think, it was immaterial from whom appellant received the information which induced him to forward the deed to Killough, the ruling, though erroneous, is immaterial, and worked appellant no injury. His statement of what he was induced to do by the letter was admitted in evidence without objection. It is maintained by appellant, that the deed to Killough is void, because it w.as incomplete when it was acknowledged by him, and when it left his hands. This objection is unquestionably valid in fact, and if good in law the judgment should be reversed.

The rule insisted upon by appellant certainly is recognized as correct, in respect to deeds and other instruments of like character, by many courts of the highest authority and the majority of the earlier decisions. But it is flatly denied by an equal, if not a greater, array of authorities at the present day. (Van Etta v. Evenson, 28 Wis., 33; Drury v.

Foster, 2 Wall., 24.) Neither time nor space will admit of our attempting a review of even the leading cases on the subject, or to give the reasons which lead us to concur, as we think, with the majority of the more recent decisions, to the extent, at least, of saying that when a party delivers a deed duly executed, with parol authority to fill blanks, and this is done, that he is estopped against a subsequent purchaser for value, without notice of the manner in which the deed was executed, from denying its validity, which is as far as we need go in this case. (3 Wash., 220, and cases there cited.) The objection to the deed as an altered instrument is untenable.

No such objection was made to it when offered in evidence; if it had been, the objection might have been fully met and explained. It comes too late when made after appellee’s mouth is closed, if the burden of removing any suspicion cast upon an instrument by apparent alterations or erasures rests on the party offering the instrument.

But the real objection to this deed was that there were blanks in it when it was acknowledged, which had been subsequently filled, with the consent and permission of the grantor, by the party to whom it had been sent, and not that it had been altered after the blanks had been thus filled. The most serious and difficult question in the case, to my mind, is whether the deed can be held to sufficiently describe the land in controversy to pass the title.

The beginning corner and the call for course by which the land is to be surveyed, are clearly repugnant to, and contradictory of, the call for the survey in which the land sold is situated. These contradictory calls cannot be reconciled. One or the other must be disregarded. And we agree with the court below, that preference should be given to the call for the survey from which the land sold is to be taken, rather than to the beginning corner and calls for course by which the land should be surveyed. Unquestionably, the parties would be more liable to fall into error in the latter calls than the former.

This conclusion is also supported by' the maxim, that that construction should be preferred which gives effect to contracts, rather than that which renders them inoperative and void, where there is nothing else to turn the scale; and also by that which says, when the proper

interpretation of an instrument is doubtful, it should be construed most strongly against the maker. Controlling weight must be given to the calls describing the land conveyed as 200 acres of land, a part of the John W. Cauble headlight survey; and also to the statement, by way of further identity, that “ the other part of the above survey having been sold to Gilliland.” This description of the land, in connection with the identification of the remainder of the tract previously sold, fully identifies and fixes the locality and boundaries of the 200 acres conveyed by the deed.

Other questions are presented by the assignment of errors, and some of them have been discussed by counsel; but what has been already said renders it unnecessary to extend this opinion to a greater length. The appellant is estopped, as we have previously said, from controverting the validity of Ms deed to Killough. He made no pretense to owning more than one-third of the Cauble survey, which was 640 acres; yet it appears. that he has sold 440 acres of it—more than twice as much as he is entitled to under his deed, and all of the survey, except the 200 acres in suit.

The alleged defect in defendant’s title, which is urged as a reason why he should recover the land, has resulted from appellant’s act, or that of the party whom he trusted to act for him. In no aspect in which we can view the case, has appellant either a legal or equitable right to a reversal of the judgment or a recovery of the land. The judgment is affirmed. Affirmed.