Johnston v. McDonnell

Citations

• 37 Tex. 595

Syllabus

<p>1. In an action to recover possession of property, and for a decree of title, based upon a conditional deed, it is necessary that the petition should aver a performance of the condition; and if it fails to do so, it shows no cause of action, and is demurrable.</p> <p>2. In construing an ambiguous instrument, all its parts should be taken together, and the intent and purpose of the parties, when thus deduced from the entire instrument, must govern each clause when considered separately. (See this case for an illustration of this principle.)</p> <p>3. In a suit by an administrator to recover possession of certain premises deeded to his intestate by deed of gift, he set forth the deed, in which it was recited that “ the property hereby conveyed shall be used for the “ purposes of a homestead, and not otherwise,” * * the donee “ to “ have and to hold the same conditioned as aforesaid for the uses and “ purposes of a homestead. It being intended as an advance to our “ said daughter, and to be used by her and her husband for a home- “ stead; and the same is not an estate in property, to be transferred to “ another during the life of our said daughter.” Held, that the deed was conditional upon the occupancy of the property by the donee and her husband as a homestead during her life, and it was necessary that such occupancy should have been averred in the petition.</p>