48 S.W. 1 | Tex. | 1898
The following statement made by the Court of Civil Appeals, together with the following extracts from their opinion, show very clearly the nature of this suit and the questions we are called upon to determine: *314
"Appellees filed suit in the District Court of Titus County, Texas, on July 16, 1896, against the appellant, J.T. Roberts, and one D.B. Meadors and A.L. Forgatson, in an ordinary action of trespass to try title to the following described land, to wit:
"Situated in Titus County, Texas, about nine miles southwest from the town of Mount Pleasant, and being a part of the Mary Morris headright survey; beginning 22 yards from the gin situated on said survey, and known as the J.E. Freeman Bros.' gin, and 22 yards from the southwest corner of the said gin tract of land, a stake; thence north 36 yards, a stake; thence east 70 yards, a stake; thence south 36 yards, a stake; thence west 70 yards to the place of beginning.
"Also one acre out of the same survey, being 70 yards square, and adjoining the above tract on the south; that there is situated on said land a steam gin and grist mill, and the rental value of the same is $200 per month.
"Appellees then set out their claim of title in their petition, which was that they owned and claimed title to said land by purchase at sheriff's sale, under a judgment of the District Court of Morris County, rendered on April 10, 1896, which judgment foreclosed a vendor's lien against each and all of the defendants in this suit. Appellees then pleaded an error in the judgment of the District Court of Morris County as to the description of the land in the foreclosure suit, and seek a foreclosure on the land in controversy against each and all of the defendants. Appellees' prayer is for the title and possession of the land and for damages and costs; and in the alternative, that if the appellees did not acquire a good title to the lands herein sued for under the decree of the foreclosure suit in the District Court of Morris County, and the order of sale and the sheriff's deed, then for this court to declare said order of the District Court of Morris County, and the sheriff's deed for said land, and sheriff's deed to said appellees void, and set aside and annul same, and then to foreclose the vendor's lien on the land described in their petition as to all the defendants, and for a judgment against the defendant D.B. Meadors on the original debt for the land."
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"After all the evidence was in, the court peremptorily charged the jury to find for the plaintiffs the land described in their petition; and to further find for the plaintiffs, against the defendant and the sureties on defendant's replevy bond, such sum as the proof shows is the reasonable value of the rent of said land from July 18, 1896. The jury found for plaintiffs for the land and $125 rents, and, in accordance with said verdict, the court rendered a judgment for the plaintiffs for the land described in plaintiffs' petition, against each and all of the defendants, and against the defendant J.T. Roberts and his sureties on his replevy bond the sum of $125 for the use and occupation of the premises from July 18, 1896, to date, and against the defendants for costs."
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"Plaintiffs read in evidence a certified copy of the judgment rendered *315 in the District Court of Morris County on April 10, 1896, in the case of Sanger Bros. v. D. B. Meadors et al., foreclosing a vendor's lien, and said judgment described the land foreclosed on as follows: 'A part of the Mary Morris survey, situated near the town of Monticello, Titus County, Texas. Beginning at a stake west of the ginhouse in the D.B. James land; thence north 70 yards; thence south 70 yards; thence east 70 yards; thence west 70 yards to the place of beginning. A better description of which land is contained in the deed from J.E. and C.J. Freeman and D.B. James to D.B. Meadors, of date October 27, 1894, to which description reference is here made for a better description.'
"A diagram of the land described in said judgment, order of sale, and sheriff's deed, all offered in evidence, is as follows:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
"B represents the place of beginning.
"The following diagram represents the land described in plaintiffs' petition in their foreclosure suit in Morris County:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
"B represents the place of beginning, and is described in said petition as follows, to wit: 'It being a part of the Mary Morris survey, situated near the town of Monticello, Titus County, Texas, beginning at a stake west of the ginhouse in the D.B. James land, and thence north 70 yards; thence east 70 yards; thence south 70 yards; thence west 70 yards to the place of beginning. A better description of which land is contained in the deed from J.E. and C.J. Freeman and D.B. James to D.B. Meadors, or date October 27, 1894, to which description reference is here made for a better description herein.' *316
"The following diagram represents the tract of land sued for in this suit:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
"The deed from the Freemans and James to Meadors seems to have been burned in the courthouse of Titus County in 1894, but each and all of the witnesses who testified in the case say that the description given in appellees petition in this suit is the same description contained in the deed from the Freemans and James to Meadors, referred to in the petition in the foreclosure suit in the District Court of Morris County, judgment and order of sale, and sheriff's deed to appellees."
We note that in that portion of petition in this case which purports to describe the land sued for, the words "that there is situated on said land a steam gin and grist mill and the rental value of the same is $200 per month," are not found. The allegations are found in another part of the petition, where they are doubtless inserted with a view to recover rents. The correction is important only in view of the fact that the witnesses who identified the land conveyed by the deed from James and others to Meadors as being the same as that given in the petition most likely referred to that part of the petition only which purported to described the premises for which the suit was brought.
We concur in the proposition announced by the Court of Civil Appeals that when there is a repugnancy between a particular description of a tract of land in a deed and a general description, the former will, as a general rule, control. In other words, where the premises are described by metes and bounds and that is followed by a reference to some other writing for a further description, the latter can not ordinarily be looked to to enlarge the former.
But we are of the opinion that, in applying the rule, the court has given it too broad a scope. The petition in the foreclosure suit gives all the lines by proper courses and distances to embrace one acre of land in the form of a square, and then follows a reference to the deed to Meadors for "a better description." The proof showed that the Meadors deed contained a description of two parcels, a rectangle extending thirty-six yards north and south and seventy yards east and west; the other an acre seventy yards square lying south of and adjoining the tract *317 above described. There is clearly no repugnancy here. The description of a tract of an acre of the same shape and with lines running the same courses and distances is "contained in" the Meadors deed. It is perhaps a better description, because it may be better capable of being identified upon the ground by reason of the reference to the other parcel described in that conveyance. But that the reference to the Meadors deed does not enlarge the description in the petition in the foreclosure suit so as to embrace the first tract described in it we think too clear for argument. But we think it equally clear that if the judgment, order of sale and sheriff's deed had followed the description in the petition, the title to the parcel of one acre would have passed to the purchaser at the sheriff's sale.
But it is just here, as it seems to us, that the difficulty arises. In the judgment, order of sale, and in the sheriff's deed, the calls for the courses and distances of the boundary lines of the one acre parcel, taken literally, describe nothing. But it may be a question whether the mistake is not so obvious as to make apparent the land which was intended to be designated. Coffey v. Hendricks,
Because the trial court charged the jury to find a verdict for the plaintiffs for all the land described in their petition, and because the Court of Civil Appeals adjudged that they should take no part of it, the judgmaent of each is reversed and the cause remanded.
Reversed and remanded.