
    John R. Hearne v. Solomon L. Gillett.
    (Case No. 4898.)
    1. Land certificate.-— A land certificate, though personal property when unlocated. loses its character as such after its location, and becomes a chattel real, title to which can no longer pass by parol.
    2. Same.—The right to a land certificate passes with the transfer of all claim and title to the land on which it is located, though, the parties might by express stipulation avoid this result, and by floating it again constitute it personal property.
    3. Construction of written instruments.—All the provisions of a written contract must be construed together to ascertain their true meaning, and that construction will he adopted which will harmonize and give an interpretation to each clause, consistent with the meaning of the rest of the instrument. See opinion for an application of this rule.
    on motion for rehearing.
    4, Commissioners OF appeal.—The reasons given by the commissioners of appeal for their decision in Smyth v. Veal, 2 Tex. L. Rep., 261, were never adopted by the supreme court, though their conclusions were.
    8. Land certificate.— A valid agreement in writing to convey to another all the right, claim and title which the obligor has in land covered by a land certificate, necessarily includes any claim the obligor had at the time, by virtue of the land certificate located thereon.
    Appeal from Robertson. Tried below before the Hon. W. E. Collard.
    
      On May IS, 1880, Gillett brought this suit against Hearne and others, in the district court of Hamilton county, to recover an undivided interest of two thousand two hundred and eighty-nine acres out of the league of land patented to the heirs of Rhoda Kennedy, and situated in that county. By the agreement of the parties the venue was changed to Robertson county.
    The defendants answered by general demurrer, general denial and not guilty. Hearne having acquired all the interest of his co-defendants, the suit was discontinued as to them.
    The same land was in part covered by two old grants, that to Ruiz for four leagues, and that to Mixon for eleven leagues; this land was situated in Robertson county. About 1850 the Rhoda Kennedy certificate was located on that conflict, and parties went into possession under that location. Finally Columbus C. Hearne became the owner of that title, and, to aid him in resisting the Mixon title, he purchased of the Watrous heirs their interest in the Ruiz grant of about six thousand acres, and about §17,000 of the purchase money remained unpaid at the time of the execution of the agreement hereinafter mentioned. There was a suit in the United States circuit court at Austin by the Mixon heirs against Hearne. He having died, his widow, as executrix, was made a party, and a judgment recovered against her for the land. In the meantime a suit was pending against her in the district court of Robertson county, by the Watrous heirs, for the purchase money and foreclosure of the vendor’s lien. To settle and adjust all their rights and conflicting claims, the heirs of Mixon, the heirs of Watrous, and Mrs. Hearne entered into a tripartite agreement, dated January 13, 1869. By that agreement Mrs. Hearne was to convey to the Watrous heirs, or whoever they might designate, a part of the land; and in accordance therewith she conveyed to Gillett two thousand two hundred and eighty-nine acres of the same. Afterwards Hearne floated the Rhoda Kennedy certificate and located upon the land in controversy, and a patent was issued therefor to the heirs of Rhoda Kennedy. Gillett claimed that two thousand two hundred and eighty-nine acres of that certificate passed to and vested in him by the deed from Mrs. Hearne, and that therefore he was entitled to that number of acres of the land in controversy.
    This was the point at issue between the parties.
    Trial without a jury, and judgment rendered in favor of Gillett for two thousand two hundred and eighty-nine acres of the land, and for partition, etc.
    
      
      Davis, Beall & Kemp, for appellant.
    
      H. D. & F. H. Prendergast, for appellee.
    No briefs on file for either party in this case.
   Watts, J. Com. Apr.

An unlocated land certificate in this state is considered as personal property, and may be dealt with as such. Watkins v. Gilkerson, 10 Tex., 340; Evans v. Hardeman, 15 Tex., 480; Cox v. Bray, 28 Tex., 261; Stone v. Brown, 54 Tex., 334.

But after such certificate has been located it can no longer be considered as personalty, but is then merged into, and becomes part of, the realty.

In treating that question, Justice Moore, in Simpson v. Chapman, 45 Tex., 566, used the following language: “ But when it is located it loses this character. It then attaches with the land, and becomes a chattel real, and can be assigned and transferred by parol no more than the land itself. Instead of being merely property of itself, it is, like a deed, the evidence of title to the land upon which it is located. And though its sale or assignment subsequent to location, if in writing, but not otherwise, may in equity be held to operate as a transfer of the land, it is the land and not the certificate which is the thing sold. The right to the certificate is an incident to and necessarily accompanies a transfer of the land.”

What is there said with reference to the subject is supported by a long line of decisions in this state.

By the express terms of the statute the location and survey of a valid land certificate constitutes such color of title as will support the defense of three years’ limitation, and such title as will authorize the maintenance of the action of trespass to try title.

While the general rule that the certificate will pass by a conveyance of the land upon which it is located is undoubtedly true, still it would be competent for the parties to reserve the certificate from the operation of the conveyance, and by floating it again restore its character of personalty. But if there is no such reservation, then the located certificate will pass with the land to the extent that it is located thereon. It is not incumbent upon the party claiming under such a conveyance to show that the certificate did pass with the land, but the burden is upon the claimant to show that it did not.

Here it is claimed that the intention to reserve the certificate is plainly inferable from the language used in the second clause of the tripartite agreement, which is as follows: “on the execution of deeds of conveyance therefor reconveying to them (Watrous), or such person as they might name in lieu of themselves, the title that was conveyed by said Daniel E. Watrous to said Columbus C. Hearne, and also under the title said grant of eleven leagues of land to said ¡Nixon.”

The fifth clause of that agreement'is as follows: “It is further stipulated and agreed that all the parties hereto shall respectively execute to each other deeds of conveyance for all the right, claims and title that each may have or supposed to have had in and to the parcels or lots of ground that may be partitioned, allotted and set apart under the foregoing covenant and agreement, to each of the parties hereto, when said partition and allotments shall be made.”

In pursuance of said agreement the partition was made and deeds executed. There was no reservation of the certificate in the deed executed by Mrs. Hearne to the appellant. But it is claimed that such reservation arises by implication from the language used in the second clause of the agreement, and especially when read in the light of the circumstances attending the transaction, and that inference is not affected by the fifth clause of the agreement.

One of the primary rules of construction is, that the entire instrument must be taken and considered together. If the instrument, when thus considered, is susceptible of a reasonable construction, by which all its provisions are made to harmonize, and by which full effect is given to its various parts, then that will be considered the correct interpretation.

To adopt the construction contended for by the appellant would result in giving to the second clause its utmost force and effect, without the least regard whatever to the subsequent clause. If it should be conceded that, standing alone, the reservation of the certificate might be implied from the former, still, if any effect is to be given to the latter, then that implication would be overcome. For, by the express terms of that clause, “ all the right, claims and title ” that each of the parties thereto had, or was supposed to have, to the particular land was to pass by the conveyances made in accordance therewith.

As has been seen, the location of the certificate upon the land constituted a claim to the same; such title as would support a suit, or upon which to predicate a plea of three years’ limitation. Then, according to the plain import of the language used, it follows, to the extent the land conveyed by Mrs. Hearne was covered by the certificate, that it passed to the appellee with the land. That construction is in harmony with, and in no way militates against, the second clause of the agreement.

Nor do the attending circumstances aid the construction contended for by appellant. It was a compromise and settlement of conflicting claims, each party having a claim to the same land, and it was to finally settle and adjust the whole matter that the compromise was made.

It could hardly be expected that the Watrous heirs would accept simply a reconveyance of the Ruiz title, leaving the Kennedy title outstanding and unsettled, when the obvious intention of the parties was to finally conclude all questions as to the land, so far as they were concerned.

In our opinion the certificate, to the extent that it was located upon the land that Mrs. Hearne conveyed to appellee, passed to and was vested in him by reason of that conveyance. And as he was the owner of the certificate to that extent, he would have an interest in the land upon which it was subsequently located, proportioned to his interest in the certificate. Keyes v. H. & G. N. Railroad Co., 50 Tex., 17-1; Hermann v. Reynolds, 52 Tex., 395.

Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.

Affirmed.

[Opinion approved May 13, 1884.]

ON MOTION FOR REHEARING.

Willie, Chief Justice.

In overruling the motion for rehearing in this cause, it is proper to state that the opinion of the commissioners of appeals in Smyth v. Veal, 2 Tex. L. Rep., 261, so much relied on to sustain the motion, was never adopted by this court.

The conclusions of the commissioners in affirming the cause were adopted, but this does not make the case authority, at least so far as the grounds upon which the conclusion is reached are concerned. That part of the opinion relied upon by appellant does not seem to have received the sanction of the commissioners, and their decision is rested upon another point, which is of no importance in the present case.

We do not wish to be understood as dissenting from that portion of the opinion in Smyth v. Yeal referred to in the motion, or as passing upon it in any manner whatever. It will be time enough to do that when a case requiring our decision upon the very question discussed in the opinion is presented.

In the present case, the contract recited in the opinion bound Mrs. Ilearne to convey to the parties under whom Gillett claims all the right, claim and title which she might have to the land upon which the Kennedy certificate was originally located. She accordingly did make such a deed to the parties holding her obligation in this respect. The decision in this case rests upon that agreement, it being held that a conveyance of all her claim, right and title to the land included the claim which she set up to it under the Kennedy certificate and location.

[Opinion delivered June 10, 1884.]

There was no suoh feature in the Smyth v. Veal case, and hence it differs entirely from the present, and is in no view of the matter authority for any change in the opinion heretofore rendered. The motion is overruled.

Motion overruled.

Associate Justice West did not sit in this case.  