¶1(dissenting).
¶2I do not concur in the majority opinion. It appears to me that the descriptive data contained in the deed dated November 6, 1940, from Betz and wife to Simons is too vague, indefinite and uncertain to warrant this court in concluding as a matter of law that the 3.47 acres in controversy was or was not included in the description of the 62 acres, more or less, therein conveyed. This deed describes the property generally as being a part of seven separate tracts described in various deeds to Betz totalling 92 acres, including “a certain 44 acre tract described in deed from, R. F. Brown to R. L. Betz dated October 16, 1916.” This deed then purports to describe specifically by metes and bounds as one tract the 62 acres, more or less, therein conveyed. The field notes in this deed are extremely complicated, covering three typewritten pages in the statement of facts. They include 24 different calls for distances which run in 15 different directions, some of the distances being expressed in terms of varas and others in terms of yards or feet, several of such distances being modified by the expression “more or less”. The only land expressly excepted from the conveyance as described in this deed is 4.13 acres, more or less, as shown by prior deed from Betz and wife to McLennan County for highway purposes.
¶3Furthermore, it appears to me that the majority opinion on the present appeal of this case is in conflict with the prior opinion and holding of this court on the former appeal as reported in 197 S.W.2d 223. If the evidence to which we referred in the 'former opinion was sufficient to take the pleaded case to the jury, as I think it was, then I fail to see how or why the evidence referred to in the majority opinion on the present appeal should have required the trial court to instruct the jury to return a verdict for appellees. Since this court decided on the former appeal that the evidence relied upon by appellant was sufficient to take his case to the jury, it is my opinion that we should now consider and decide one or more of the points of error upon which this appeal is predicated.