
    WADSWORTH et al. v. VINYARD.
    (Supreme Court of Texas.
    May 29, 1912.)
    Deeds (§ 114.) — Construction and Operation — Description—Quantity.
    A conveyance by a person owning a tract of land composed of four surveys, supposed to contain 1,600 acres, but actually containing over 2,000 acres, of an undivided half thereof, describing the tract as 1,600 acres of land lying and being, etc., conveys half of the actual quantity; the language “half of the 1,600 acres” merely describing the land, and not limiting the amount conveyed.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 316-322,- 326-329, 388; Dec. Dig. § 1Í4.]
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Trespass to try title by Lillian M. Vin-yard against W. B. Wadsworth and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (131 S. W. 1171), and defendants bring error.
    Reversed and remanded, with directions.
    Lewis R. Bryan, of Houston, for plaintiffs in error. John E. Linn and J. W. Conger, both of Bay City, for defendant in error.
    
      
      For other oases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

We copy from the statement of the honorable Court of Civil Appeals, as follows: “This is an action of trespass to try title, brought on November 14, 1908, by Lillian M. Vinyard, the appellee, against W. B. Wadsworth and Henry Rugely and James W. Brodie, as guardians of the person and estate of James B. Hawkins, Edgar Hawkins, Ella Hawkins, and Henry Boyd Hawkins, minors, and heirs of the estate of Eli Hawkins, deceased, to recover an undivided interest in certain lands described in her petition. In her first amended original petition, which was filed January 14, 1910, the plaintiff alleged that she was, on December 1, 1905, the owner in fee simple of an undivided 902% acres in and a part of four certain tracts of land composed of surveys Nos. 1, 2, 3, and 4, patented to James W. Byrne, assignee of David White, by the republic of Texas, and situated in Matagorda county, Tex., adjoining the Daniel McCarty one-third league on the east, and the S. R. Fisher league on the west, containing 2,122% acres, more or less; that defendants are joint owners and cotenants with plaintiff in said four tracts, holding the same in undivided interests, and own, among themselves, an undivided 1,220 acres in the same, but in what proportion she is unable to state. Each of the four several surveys is then described by its field notes, as set out in the patent thereto.”

The republic of Texas granted to James W. Byrne four contiguous tracts of land in Matagorda county, expressed as one containing 640 acres and three each containing 320 acres, in all 1,600 acres; but in fact the four surveys contained 2,008 acres. Anna W. Vinyard, who was the sole heir and devisee of the patentee, conveyed to defendant in error, by deed, dated January 15, 1880, all of the land, which had the effect to vest in the latter all that James W. Byrne had not conveyed. June 24, 1842, Byrne conveyed an undivided half of the land to John R. Murray, and on August 21, 1850, Byrne conveyed 420 acres of the land to Theodore Ryan. W. B. Wadsworth acquired title to the last two tracts above. The Hawkins heirs have title from Byrne to 380 acres. All of the conveyances were for undivided portions of the four surveys, which were treated as one survey. The parties were all joint tenants; and no limitation had run against Mrs. Vinyard. She is entitled to all of the land to which the other parties failed to show title. There is but one assignment in the petition for writ of error that deserves to be considered, which is to the effect that the trial court erred in holding that the deed of Byrne to Murray conveyed only 800 acres of the land.

We are of opinion that the language of the deed, “being one undivided half of sixteen hundred acres of land lying and being,” etc., designates the body of land composed of four surveys, which was thus treated as one tract. If there had been but one survey with the same excess, the conveyance of “one undivided half of the 1,600 acres of land lying and being,” etc., would unquestionably convey the half of the entire survey, including the excess. The language “half of the 1,600 acres” points out the body of the land of which part is conveyed, and does not limit the quantity conveyed to less than half of the whole. Wadsworth is entitled to one-half of the four tracts and to 420 acres, and the Hawkins heirs are entitled to 380 acres, the remainder to be set apart to Mrs. Vinyard.

It is therefore ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that this cause be remanded to the district court, with instructions to cause the land to be partitioned in accordance with this opinion, and that the costs of the district court, including cost of partition, be paid by the parties in the proportion that the land received by each bears to the whole.

It is ordered that the plaintiffs in error recover of Mrs. Vinyard the costs of this court and of the Court of Civil Appeals.  