291 S.W. 214 | Tex. Comm'n App. | 1927
The writ of error has been granted to the judgment of the Court of Civil Appeals affirming the judgment of the' trial court (281 S. W. .315) to review the' holding that the description in a certain sheriff’s deed to land could be aided by extrinsic evidence and thereby made sufficient to pass the title of the plaintiffs.
The land owned by plaintiffs in error as heirs of Elizabeth Pomeroy and Almyra Hall Lemon is described as follows: (1) The northwést half of the Wm. E, A. K. Beller-man survey No. 368 beginning at a stone' mound in the northeast boundary line of said survey; thence north 48° 35' west 306 varas, a stone mound; thence west 356 varas-te a stone mound; thence south 41° 35' west, 649 varas to a stone mound; thence south' 48° 35' east 575 varas to a stone mound; thence north 41° 35' east with the line of Mrs. Van RiperV land 993 varas to the place of beginning, containing 80 acres of land more- or less. (2) 7% acres of land off the extreme northwest end of the W. -H. Van Riper survey No." 368% (beginning at the northeast comer of Mrs. Rebecca King’s 80~-acre tract from which a mesquite 12 inches in diameter bears north 39 west 4% varas; thence south 48° 35' east 318 varas-to a stone mound; thence north 41° 25' east 270 varas; thence west to the place-of beginning — all in Bexar county, Texas..
“Abstract 790, survey 293, original grantee W. H. Van Riper, 7.75 acres of land more or less; abstract 67, survey 368, original grantee W. E. A. K. Bellerman, 80 acres of land more or less; all lying and being in the county of Bexar, state of Texas.”
In due time an order of sale was Issued on said judgment and the property was sold thereunder to defendant in error for a consideration of $650 in cash, whereupon the sheriff executed and delivered to the purchaser a sheriff’s deed in the usual and proper form, in all of which instruments the land was described as in the judgment. The description contained in the judgment and the instruments following it is insufficient to identify the land owned by plaintiffs in error, and the sale is therefore void.
The Legislature has pa-escribed that no •suit shall be brought to enforce any tax lien upon any lands'in this state unless a sufficient description to identify the same can first be had. Vernon’s Say les’ Ann. Civ.' St. 1914, art. 7689.- The Legislature having thus spoken,- the statute affords a definite and controlling guide in determining what description is sufficient. The provision, coming as it does in connection with other provisions concerning proceedings in suits to fore-i close tax liens, obviously Is for the purpose' •of incorporation in the pleadings, judgment, and other instruments based thereon; and to -be such “sufficient description” it is required “to identify” the land. In other words, the description then “had” at'the in.stitution of the suit, and made the basis of the suit, must be of such itself as to identify the land affected. While all civil stat- ■ utes, by force of legislative provision, must be liberally construed, yet it is universally held that statutes such as this will not be .applied until the requirements authorizing such application have been strictly complied .with. In this sense, such statutes are often .said to require strict construction. The statement is not entirely accurate, but the effect is the same. The evident purpose of the Legislature was to require that the land be ■ described in the proceeding in such way as to identify it rather than to permit a resort to wholly extrinsic matters of description for •identification. If it were necessary to seek .a reason for such provision, we find it in the nature of the harsh proceeding, and in the probability that any sort of imperfect description of the property would tend to prevent bidding, and thus to sacrifice the property. Not only is the statute dear upon this point, but likewise, independent of the statute, the decisions are to the same effect.
There is but one test, at least in determining whether a deed is an absolute nullity, and that is, whether the language is such that it may, by means of extrinsic evidence, be so applied to the land as to reasonably identify it, as determined in Smith v. Crosby, 86 Tex. 20, 23 S. W. 10, 40 Am. St. Rep. 818; Hermann v. Likens, 90 Tex. 453, 39 S. W. 282; McManus v. Orkney, 91 Tex. 33, 40 S. W. 715; Slaughter v. Dallas, 101 Tex. 315, 107 S. W. 48; and McCardell v. Lea, 111 Tex. 387, 235 S. W. 518.
The authorities dted by the court of Civil Appeals are not controlling, nor are they contrary to the rule we. have announced, or-to the authorities hereinafter cited supporting the same. They will be found to be for the most part cases in which the extrinsic matter permitted to be inquired into was made a part by reference of the description actually given. Por instance, in Taffinder v. Merrell, 95 Tex. 95, 65 S. W. 177, 93 Am. St. Rep. 814, it was said:
“Under the decisions of this court, it is proper to look not only to the order itself but to the inventory and to the report of the commissioners. By these documents and by the order taken together, the property is referred to, not merely as two lots in the town of Hamilton, but as the two lots in that town owned by Taffinder and wife as community property. All that it was necessary to do in order to identify the property was to ascertain the lots which were thus owned, and the evidence shows that this was easily done. The stated ownership of the lots was in itself a circumstance of description which led to their identification.” (Italics ours.)
But let us see what the Supreme Court has further had to say upon this precise point. In Allday v. Whitaker, 66 Tex. 669, 1 S. W. 794, Judge Stay ton says:
“The rule in reference to judgments directing land to be sold, orders of sale made thereunder, and deeds made by sheriffs in pursuance of sale so directed to be made is, that in the several steps taken to empower the officer to sell, and in the paper evidencing the fact that he has sold, there must be such description of the land as will enable a person familiar with it to identify it from the description thus given." (Italics ours.)
In Brown v. Chambers, 63 Tex. 131, a case of a sheriff’s deed, the court recognized the rule that a reference in the description contained in the deed, to extrinsic matters, would authorize their consideration for the purpose of identification, but denied that a general reference to the deed records of the county would require or permit such a course If a, general reference in the deed would not
It is impossible for any one to tell from the judgment and deed following it just what land was attempted to be sold. It is uncertain whether abstract 790, survey 293, contained only 7.75 acres and that all was being sold, or, if not, then what particular 7.75 acres were meant. It is uncertain whether the Bellerman contained only 80 acres more or less, and that all was sold, or, if not, what particular 80 acres were meant. These instruments contain no assisting facts or data, by way of reference or otherwise, to enable one to identify the land. This is the test. A prospective purchaser must be able to identify, from the description, not something else,' just what land is being offered. The rule permitting evidence as t.o extrinsic matters is at best iff any case of doubtful propriety as calculated to set at naught the statute requiring a conveyance of land to be in writing, and otherwise to thwart the will of the parties to the instrument. But certainly where the statute itself requires the description to identify the land being sold, no other source or method of identification can be resorted to.
The trial court found that the judgment at whose foreclosure sale defendant in error purchased established an indebtedness against the land for taxes in the sum of $125.-07 and penalties in the sum of $184.17, and, furthermore, that the defendant in error has since ■ paid the state and county taxes upon the land for the years 1920, 1921, 1922, 1923, and 1924, aggregating $134.49, and plaintiffs in error admit, as indeed they must, that defendant in error should be reimbursed for these sums.
The tidal court likewise found that the annual rental value of such property was $30 per annum, exclusive of any consideration of the improvements placed thereon by defendant in error, but plaintiff in error has no assignment of error seeking in this court to recover that item.
We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be reversed and judgment be here rendered in favor of plaintiffs in error canceling and holding for naught the sheriff’s deed under which defendant in error claims, and divesting out of defendant in error any and all title whatsoever to the lands in controversy, but that the defendant in error have judgment establishing a lien against said property for the payment of the sum of $443.73, with interest at the rate of 6 per cent, per annum upon the sum of $309.34, from and after May 3, 1921, and with interest at the rate of 6 per cent, per annum upon the sum of $134.49 from and after October 1, 1925, and that such judgment bear interest at the rate of 6 per cent, per annum from and after this ,date, and that the lands be ordered to be sold as upon execution for the satisfaction of such judgment.
