17 S.W. 235 | Tex. | 1891
This was an action of trespass to try title, brought by the appellant.
The description of the contained in plaintiff's petition was as follows: "A part of the John Gillespie survey, situated in the city of Greenville, Hunt County, Texas, beginning at the southeast corner of the old town donation; thence east with Mercer's Colony line 173 3/4 varas; thence north 325 1/8 varas; thence west 173 3/4 varas to old town donation; thence south 325 1/8 varas to the beginning; except that part previously conveyed to Hagood, Dagley, and Ende by J.W. Hawkins."
There was a judgment for the plaintiff by default, in which the land was described substantially as it was in the petition, except that the designation of place was omitted. A motion in arrest of the judgment on the ground of the insufficiency of the description of the land contained in the petition was made more than two days after the judgment was rendered. This motion was sustained by the court, and the plaintiff having declined to amend his petition his suit was dismissed.
We feel constrained, by former decisions of this court, to hold that there was error in dismissing plaintiff's suit because of the insufficient description of the land sued for in his petition. Crabtree v. Whiteselle, *650
In such cases as the one before us the better practice is for the plaintiff to ascertain and give in his petition an accurate description of the land sued for, and a failure to do so is not to be commended. If the duty is omitted in the pleading he may aid the officer who executes the writ of possession by then producing the deeds and performing such acts as may be required to definitely point out the land to which the description in the judgment applies. If he fails in that duty he can not demand an execution of the writ by the officer, nor can he be permitted to prejudice the rights of other parties by causing the writ of possession to be executed upon any property not properly embraced in the description given in the pleadings and judgment. It is not apparent that the land in controversy in this suit can not be accurately pointed out by means of the description and references contained in the petition, to which the judgment should be made to conform.
The judgment is reversed and the case is remanded.
Reversed and remanded.
Delivered October 16, 1891.