*1 734 27,
on January 1969. defendant was answer, and, duly failed to after served but Petitioner, WILLIAMS, J. D. thereof, presentation support of evidence v. a on judgment default was entered June Ray Respondent. ELLISON, 21, 1971. B-3687. No. 1971, July 13, a the defendant filed On Supreme Court of Texas. judgment. aside motion to set the default 26, 1971, hearing held August On a April 11, 1973. motion, 20, 1971, a and on October Rehearing May 9, Denied 1973. judgment setting judg- aside the default granting signed ment and a trial new
and entered. appealed
Mrs. from the October Rhodes
20, and of civil judgment 1971 the court
appeals rendered, holding reversed 5, 329b, provisions
under the of Rule § Procedure, where as
Texas Rules of Civil
here, was filed the motion new trial days entry judgment
more than ten from thirty failed to act court within
days judgment, judgment be-
came final and the court jurisdiction. lost ordering judgment
The court aside the set
a court on new trial entered the trial 20, 1971, and declared default
October 21, a final judgment of to be 1971 June
judgment. Tex.Civ.App., 487 158. 1971, 20,
The order of October
purporting judg to .set aside default no grant
ment is of trial, new 20,
effect. Since order of October
1971, judgment, is not a final court of appeals
civil this court are without Lynn
power appeal. v. review
Hanna, 652, (1927). 116 Tex. S.W.
We to re jurisdiction, do have judgment
verse the court civil
appeals appeal and dismiss the from the McCauley
trial court. Consolidated Un 475,
derwriters, Tex. 265. 21, 1971, judgment became June 21, final judgment July on 1971. provisions
Pursuant Rule Rules Procedure, judg-
Texas of Civil
ment of appeals the court of is re- civil appeal
versed and the from the district
court is dismissed.
The motion for rehearing is overruled. *2 petitioner was the owner
The Williams of land triangular-shaped acres of a 97.81 City Road, Frio Medina located between Base Road Bexar Road Holm 22, 1965, he en- County, July Texas. On specifically sell tered into a contract to a to as (herein described ten acres referred respondent’s assignor, one tract”) “first Kaulbach, $30,000. first tract for each side square was in the 'form a with of length. It being 660 feet in was located Me- adjacent the intersection of While Holm Road. dina Base Road and first specifically described this it to the made no reference of triangular-shaped tract which 97.81-acre part. it awas instrument, an this same By the terms of Kaulbach, option his as- given was signee, ten purchase an additional (herein for “option tract”) referred to $25,000. option tract the sum of however, contract’s unspecified, description of complete reference to and is as follows: hereby an grants to Purchaser
“Seller purchase 10 acres option an additional price $25,000.00payable a of of land at option In in cash. order exercise give written notice Purchaser must (12) on before twelve months Seller and at least closing after of this sale portion boundary line of the of the Semaan, Semaan, & Fred A. Goodstein contig- purchased so shall acre tract Butts, Butts, Anto- & D. Charles San Butts portion line to a uous nio, petitioner. for con- in this above the 10 acres described Christopher, Henry & W. Johnson portion ; that no provided, tract Christopher, Antonio, respon- Jr., for San wa- option such shall include the tract dent. on land presently ter well located Seller’s acre any portion of an area one nor well. square on such water centered JOHNSON, SAM D. Justice. days within 90 The sale shall be closed respondent, Ray brought by Suit notice, written giving of such after Ellison, performance op- specific of an general war- shall furnish and Seller ten purchase tion contract to acres of land free guaranty policy title ranty deed and Texas, peti- against County, Bexar Current encumbrances. and clear all tioner, D. Trial was to the Williams. J. of clos- prorated to date taxes are to be specific performance. court which ordered ing. appeals court of affirmed. 486 civil agreement shall extend to “This judgments reverse 186. We administrators, executors, heirs, bind the the courts below. assigns parties successors and of both therein cited. This has been referred to as hereto.” description” the “nucleus of theory. Re- public National Stetson, Bank of Dallas v. conveyed October Williams (Tex.1965); S.W.2d 257 Continental first to Kaulbach and received the Supply Missouri, Co., Co. v. Ry. K. T.& $30,000. *3 assigned sum Kaulbach the 268 S.W. 446 (Tex.Comm.App.1925, Ellison, attempted tion to who then ex- to jdgmt adopted). quoted option unspecified ercise the option purchaser-respondent tract. The In the relevant section the con tract, selecting so by having did a ten-acre tract, parts only there are two may which surveyed by it and described metes and be descriptive option construed as of the option bounds. The tract was selected provides tract. The first that least a adjacent made to be to the 660-foot south portion of its line shall con be boundary of the first tract for a distance tiguous portion ato of the boundary line option of 90 feet. The tract was made of the first provides tract. The second proceed along then to south Holm Road option any tract shall not include feet, 1,503 east, for a distance of then then portion aof one-acre tract centered on the north, then west and north around the wa- water language well. The total of the con place beginning. ter well and to the back tract, therefore, provide does no more than option to Pursuant the contained the origin tract, option is, site of for the that contract, option the tract selected did not for whatever is distance it to be con made any portion square include of the one-acre tiguous to the first tract. centered on the water The well. selection No supplied hint is as to the distance for purchaser timely made the by commu- which these two tracts were to intended be owner-petitioner. nicated to the For the adjacent or as to which one or more of the purposes of opinion this is it assumed that first tract’s four option boundaries the quoted provisions option the of the were tract abutting. was intended to be With fully complied by purchaser-re- with the description supplied, surveyor the could spondent. It was on these circumstances go upon premises the only and know that upon owner-petition- the refusal of the point origin the option of the tract er to execute a deed that this ensued. suit would be along somewhere one or more of The essential issue to be is determined the four boundaries of the first He tract. option description whether the of the tract given would be no as the clue to common indefinite, vague, the contract is “so un- boundary’s length might presume it certain and wanting wholly to be insuf- extend an any inch or for along distance ficient” under the provisions of Tex.Bus. any one or more of the first tract’s bound- 26.01, & Commerce Code (Stat- V.T.C.A. § this, Beyond aries. he could not ascertain ute of Frauds). We hold that it is insuffi- breadth, length, the shape direction or cient. remaining the places calls. option no limits on the tract be selected consistently has Court stated seller, by larger any lands owned the determining sufficiency that test the for the tract, any political survey, any or to or of land contracts to geographic writing can- subdivision. The land, compliance convey with the stat not be to furnish within said itself frauds, sufficient, ute of is that be “[t]o by option means or data which itself, writing must furnish within or may be identified. by writ existing reference to some other
ing, Beyond the means or the land by foregoing, data which the contract conveyed may existing to be be with rea makes to any identified no reference other Shotwell, might certainty.” writing, sonable Morrow v. record document which supply see cases the means data (Tex.1972), 538 which right by making selec- gives Turner the There is tion tract could be identified. certain.” tion to render anything no reference to outside therefore “equitable right this certainty court an contract, called to which resort choose.” There also the could attained. be one which the selection of the additional contends, Respondent strongly made, fully acre was to be described. type” is a case where “selection Hamilton, Petroleum Co. v. property conveyed, though to be not Stekoll identification, is to presently subject to supra, an as- the instrument involved was subsequent Respon selected at a time. signment gas oil and The as- leases. upon principal placed dent’s reliance signment buyer right ac- gave the Lester, (Tex. Taylor v. 5,000-acre block, 4,000 quire of a re- *4 ; ref’d) Turn Civ.App. writ — Austin 4,000 (255 191), citing page “said S.W.2d Hunt, 492, 116 er v. 131 Tex. leaving by Buyer selected acres to be Sell- Stekoll v. (1938); Petroleum Co. 1,000 equitably ers checker-boarded Hamilton, 182, 255 152 Tex. S.W.2d 187 a fashion similar the checker-board- (1953). ing in first block above identified.” the if the Lester, The court stated contract Taylor supra, plaintiff v. the merely given buyer the question had the accepted the defendant’s to sell land offer 5,000-acre 4,000 right to select acres of the fol- (page 1097) which was described as lot, description probably have the would : lows court was unable to been sufficient. The leases, “I am the holder of a of block checkerboarding pattern of find a definite 2,500 covering acres in Mc- northwest block, however, and the de- of the first County, Culloch being fee title in Vivian scription the land was therefore deter- of Kirk, Kirk, Taylor, C. Dick- F. N. W. S. indefinite, uncertain and unen- mined be al.; you your enson et are to have frauds. under the statute of forceable 1,500 any of choice acres in said block 5,000-acre block, larger again out Here the option acreage se- of the was to be which lected, accurately de- specifically and rejected The court there the contention scribed. the violated statute of agreement frauds and held the enforceable. con of frauds the statutes None of There, however, larger the from provision regarding the specific any tain fully which the choice was to made was be of land which designation or described. judi of is matter required. will be reasonably is what as to cial construction Hunt, In Turner supra, plaintiff the decisions import of the necessary purchased 24 acres off the east end of an or be described property must is that the 82-acre tract owned defendant. the certainty. reasonable designated with page 689), The deed (116 recited reasoning of those deci 6. A.L.R.2d is “[tjhere conveyed by convey- also here; property from the applicable sions setting, ance one acre of land for house like he made must is to a selection which surveyed said acre to any be suitable rea designated with or be described wise place along boundary line of said the south Here, however, and certainty. sonable tract, making 82 acre 25 acres deeded places no stated, previously plain- years all.” ten thereafter Some option tract to location limits surveyed tiff caused be an acre of land seller, larger any lands owned along boundary of out the south any political survey or to area, any stated that 82-acre tract. court there speci than Other subdivision. geographic plaintiff] “[wjhile the deed Turner [the length op- to some uncertain land, fying that identify does not itself acre tion tract must share a common tract, location
with the first A con-
tion tract stands without limitation. party .an
tracting may well enforce other- option providing valid for the selec-
wise definitely de- property
tion larger tract is but where the
scribed designated
not with reasonable described
certainty necessarily must be held vague, uncertain to be
too indefinite and
enforceable.
For the reasons stated judg-
the courts are reversed and below petitioner,
ment is rendered D. J.
Williams.
ON MOTION FOR REHEARING
WALKER, (concurring). Justice *5 my opinion specify the failure out of which the land is to be selected not, itself,
does render the
insufficient under the Statute Frauds. contract,
There is nothing
to show that selection was to be made
by respondent by petitioner rather than parties jointly third some
person. agree in- I
adequate reason, and I concur judgment.
the Court’s
TEXAS NATIONAL CORPORATION,
Petitioner,
UNITED SYSTEMS INTERNATIONAL, Respondent.
INC.,
No. B-3773.
Supreme Court of Texas.
April 18, 1973.