158 S.W.2d 888 | Tex. App. | 1942
This is an action in trespass to try title by appellants, Clark Davis et al., plaintiffs below, against appellees, Kirby Lumber Corporation et al., defendants below. Judgment was against appellants and in favor of appellees on an instructed verdict, from which this appeal was regularly prosecuted.
The land in controversy lies in the northwest corner of a tract of 1060 acres, which extends across the north end of the P. A. Sublett Survey, in Polk County. John F. Carr, the common source, in 1873 acquired title to a tract of 1210 acres on the Sublett Survey, including the 1060 acres referred to above, by deed recorded in Vol. O, pages 209-212, deed records of Polk County; this *889 was all the land owned by Carr on the Sublett Survey. On the 28th day of September, 1889, Carr sold and conveyed a tract of 790 acres out of his 1210 acres on the Sublett Survey, leaving him on that survey 420 acres in two tracts, (a) tract No. 1, the land in controversy, described as containing 271 acres, and (b) tract No. 2, containing 150 acres immediately south of the southwest corner of the tract of 1060 acres, which tract is not in controversy. Up to 1889, Carr rendered for taxes 1210 acres on the Sublett Survey; subsequently he rendered 421 acres.
On the 7th day of October, 1891, Carr, on a valuable consideration, conveyed by deed in writing 270 acres, the land in controversy, to A. H. Beazley, which deed was first filed for record in the deed records of San Jacinto county, but not in the records of Polk County until the 28th day of February, 1901. Appellees hold through a regular chain of title from and under the common source, through A. H. Beazley.
On the 5th day of October, 1891, two days before Carr, the common source, conveyed the land in controversy to Beazley, the J. S. Brown Hardware Company instituted its suit in district court of Galveston County against Carr and D. S. Chandler. Writ of attachment was issued in that suit on the 20th day of November, 1891, and on the writ of attachment the sheriff of Polk County made the following return: "Came to hand Nov 21st 1891 at 8 o'clock P m and executed same day by attaching the following described Real Estate the property of Defendants John F. Carr and D. S. Chandler, the following described lands * * * the property of John F. Carr situated in Polk County * * * Abstract No. 71; number of acres 421; original grantee, P. A. Sublett; book and page where recorded, O 209,212; * * * The above described property is the same rendered by defendants for Taxation to the assessor of Taxes of Polk County for the year 1891."
Judgment was entered in the suit against Carr on the 9th day of December, 1891, foreclosing the attachment lien on the attached property, and J. S. Brown Hardware Company purchased at the foreclosure sale all the attached property, more than thirteen thousand acres, at less than one cent per acre. Appellants claim under the common source, through the sheriff's deed to J. S. Brown Hardware Company.
The verdict in the lower court was instructed in favor of appellees on the court's conclusion that the description of the land in controversy, as given in the sheriff's return on the writ of attachment in the suit of J. S. Brown Hardware Co. v. Carr Chandler, was void.
To pass title under attachment proceedings, the description of the land, as given in the sheriff's return on the writ of attachment, must be as clear and definite and certain as the description in a deed. In order to pass title by a deed the description must identify the land conveyed with reasonable certainty — that, in order to meet the requirements of the statute of frauds, Art. 3995, R.C.S. 1925; Smith v. Sorelle,
The following cases illustrate the strictness with which our courts construe descriptive matter referred to in deeds to identify the land conveyed. The description of the royalty interest in issue in Smith v. Sorelle, supra, was of 100 acres out of *890
Blocks 8 and 9 of a subdivision of the Pineda Survey, Patented to Adolphus Stern, Patent 608, three miles north of Gladewater, Texas. The description was complete as to the survey, its patent number and location, but was incomplete as to what particular 100 acres in Blocks 8 and 9 was conveyed. It was 100 acres out of Blocks 8 and 9. The balance of the description, furnishing an additional key, was, said land "being * * * under an oil and gas lease originally executed in favor of W. M. Worley." [
Now, when construed in the light of the principles announced by the cases reviewed above, we cannot escape the conclusion that the description of the land, as given in the sheriff's return on the writ of attachment, was void, on the following analysis. The land was attached as the property *891
of John F. Carr. At the time the attachment was levied, Carr had sold the property, and there was no explanatory statement such as "as shown by the deed records of Polk county." The description "book and page where recorded" does not identify the book but leaves open the inquiry whether it was the deed records, deed of trust records, attachment lien records, etc; nor does it state to what county the book belongs. The evidence was to the effect that a part of the Sublett Survey was in Liberty county, and Carr's deed to Beazley had been recorded in San Jacinto county. The return is to the effect that the sheriff had levied on 421 acres; if reference is made to Book O, pages 209-212, deed records of Polk county, then not 421 acres but a tract of 1210 acres is described. The sheriff made no statement that he was attaching the land described in the deed recorded in Book O, pages 209-212, less 790 acres previously sold by Carr, thereby falling within the doctrine of McCardell v. Lea,
While not material on the legal sufficiency of the description, the price of less than one cent per acre, paid by the purchaser at the foreclosure sale, emphasizes the reason of the rule requiring a strict construction of extraneous reference in a deed, in aid of the description of the land conveyed. Pfeiffer Co. v. Lindsay,
It follows that the judgment of the lower court should be affirmed, and it is accordingly so ordered.
Affirmed.