Houston Oil Co. of Texas v. Bunn , 209 S.W. 830 ( 1919 )

The question of whether this court's construction of the deed here involved conflicts with the holding of the Supreme Court in Houston Oil Co. v. Hamilton, 206 S.W. 817, is to me exceedingly doubtful; indeed, I am inclined to think that the two opinions do in fact run along parallel lines, and can therefore neither meet nor coincide.

Accordingly, if that were the sole consideration upon which the disposition of the case here made could rest, while individually holding and preferring the view taken by this court, yet, believing that we should follow prior determinations of the same question by the Supreme Court, I could not agree to an affirmance; but I think the form of this deed left its meaning sufficiently infected with ambiguity and doubt to properly let in the parol proof admitted for the purpose of clearing that up and of getting at the actual intent of the parties. When that was done, the undisputed evidence showed that neither side understood the deed they were passing to be an absolute conveyance of the fee in the timber, with such incidental interest in the land as was necessary for its sustenance and unattended by any requirement for its removal, but, upon the contrary, the mutual agreement was that the purchaser would expeditiously remove the timber and so permit the sellers to use the land on which it stood for farming purposes. Impelled by these conclusions, I have concurred in the original judgment and in overruling the motion for rehearing.