¶1On Motion for Rehearing.
¶2In her motion for rehearing, appellee contends that the fact that the sale herein involved was in gross and not by the acre, and that the phrase “more or less”, used in the description, distinguishes this case from that of Shaw v. Morrison, Tex.Civ.App., 14 S.W.2d 953, which we regard as controlling upon this appeal.
¶3The contract involved in this case was one in which the appellee undertook to deliver a good and marketable title to "5.03 acres of land, more or less, same being the west one-half of Block 12, of the Lasby Park Place Subdivision in Block 10, San Benito Land and Water Company Subdivision in Cameron County, Texas.”
¶4It is not asserted that the west one-half of Block 12 does not contain 5.03 acres of land. It is, however, contended that appel-lee cannot deliver a marketable title to the west one-half of said Block 12. It is undisputed that .59 of an acre is occupied by a highway easement. .In Shaw v. Morrison it is stated that easements for streets and alleys constitute incumbrances upon title. Appellee then, in effect, is tendering an incumbered title and seeking to specifically enforce a contract which calls for the delivery of a marketable title. Shaw v. Morrison holds that one seeking the forfeit of earnest money as liquidated damages in a case of this kind must show that he would be entitled to specifically enforce the contract.
¶5We do not wish to be understood as holding that any and every easement not excepted in the contract would defeat a suit for specific performance of a contract calling for a marketable title. The in-cumbrance must be substantial and in determining this matter deficiency in acreage may become material in determining the equities. The consideration of acreage in this connection should not be confused with the call of quantity in the description of a deed. The term “more or less” when applied to acreage cannot be construed as excepting easements and incumbrances. If *213such exceptions are desired the parties should so state in their contracts.
¶6It is undisputed that appellant wanted the land here involved for the purpose of constructing a trailer park thereon. While the tract lies outside the corporate limits of the City of San Benito, Texas, it was apparently suitable for the purpose intended or some similar semi-urban use. It was not ranch land, nor was it purchased for livestock raising or farming purposes. We conclude that the equities are against an order requiring specific performance.
¶7The transcript contains a memorandum of the trial judge which we have carefully considered. However,' we disagree with his conclusion that this case can be distinguished from Shaw v. Morrison. We arc further of the opinion that the distinction therein made between an executory and an executed agreement is a sound one, and agree with the holding that cases of this kind should be controlled by the equitable principles generally applicable to suits for specific performance.
¶8We adhere to the holdings expressed in our original opinion and the motion for rehearing is overruled.