P. Pfeiffer & Co. v. Lindsay, Case No. 5615

Case No. 5615 | Tex. | Apr 26, 1886

Willie, Chief Justice.

The sheriff’s return to the writ of attachment shows a levy upon “fifty acres of the J. M. Moss survey, abstract No. 462 near the town of Burlington, ’ ’ in Montague county. The j udgment foreclosing the attachment lien describes the land as “fifty acres of the J. M. Moss survey, abstract No. 462, situated near the town of Burlington, in Montague county, Texas.” The order of sale issued upon the judgment describes the land in almost the exact language used in the judgment, and with no greater particularity. The sheriff’s deed to the purchaser, at execution sale describes the land as “fifty acres of land out of the J. M. Moss survey, situated in Montague county, Texas, abstract No. 462, situated near the town of Spanish Fort, Montague county. Texas, and described as beginning, etc.”

The description of the land contained in the levy, judgment and order of sale is obviously imperfect and insufficient. No one, from reading it, could tell what was the shape of the fifty acres, nor in what part of the Moss survey it was situated. It is of the utmost importance that land to be sold at execution sale should be so definitely described as to inform the public what particular tract will be offered to purchasers, and each bidder what land he will get if his should be the best offer at the sale. Otherwise, bidding would be discouraged instead of promoted, and the rights of defendant sacrificed. To find out what land is to be sold, purchasers look to the proceedings by virtue of which the sale is to take place, which are, in the present case, the levy, the judgment and the order of sale.

If, from these, an intended purchaser would be left in hopeless uncertainty as to Avhere and what the land is, he Avill be deterred from buying, at least, for anything like a reasonable price. The case would be one of patent ambiguity, and the description worthless and void. The case of a description so imperfect as to designate no tract of land whatever, is different from one where the terms used are sufficient to identify the property, but they are not such as are understood by any one, though understood by persons familiar with the property or with the portion of the country in which it is situated. In the latter ease, parol evidence is admissible to inform the court as to the meaning of the terms used; in the former, which is the present case, it is not. See Freeman on Ex., sec. 281, for illustration.

A description similar in every material respect to the present was held by this court, in the case of Norris v. Hunt, 51 Tex., 609" court="Tex." date_filed="1879-07-01" href="https://app.midpage.ai/document/norris-v-hunt-4893283?utm_source=webapp" opinion_id="4893283">51 Tex., 609, to present a case of patent ambiguity, such as to render it void for uncertainty. And such is the holding in other states. Brigance v. Erwin, 1 Swan, 375; Deloach v. State Bank, 27 Ala., 437" court="Ala." date_filed="1855-06-15" href="https://app.midpage.ai/document/deloach-v-state-bank-6505627?utm_source=webapp" opinion_id="6505627">27 Ala., 437; Waters v. Duvall, 6 G. & J., 76.

In the case of Norris v. Hunt, the imperfect description contained in the levy was caried into the deed. Here, it is contended that though the description is imperfect in the levy, judgment and order of sale, it is definite in the deed made by the sheriff to the purchaser. But the sheriff could convey no other property except such as he had sold at execution sale, and he could sell no other except such as he had been ordered to sell. If the order of court directed the sheriff to sell an undefined fifty acres of land out of a larger tract, and he did so, he cannot afterwards take upon himself to say the purchaser must have fifty acres of a particular shape, and in a particular portion of the tract. Here, the return upon the order of sale states that the sheriff levied upon, advertised and sold by virtue of it, fifty acres of land according to the indefinite description given under it in the order itself. This, then, was all he had a right to convey, and his deed cannot be construed to pass title to any defined part of the Moss survey.

We have seen that a definite description of the land is required in order to inform the public as to the exact tract to be sold, and to secure a fair price for it to the defendant in execution. These ends would be defeated, if, after the sheriff had sold the property for perhaps an inadequate price, because bidders were not assured by the previous proceeedings as to what property was offered for sale, he could cure the defects by an act of his done subsequent to the sale. The present case affords a fair example of the damage done a defendant in execution from such a cause. The identical land conveyed in the sheriff’s deed, (less three-fourths of an acre) for the consideration of $50.00, was sold to the appellee at private sale two days before the levy of the attachment upon it for $1,500.

We think the proceedings show that the appellants claimed under a void execution sale, and there was no error in the judgment which was rendered against them in the court below, and that judgment is affirmed.

Affirmed.

[Opinion delivered April 26, 1886.]