Annie P. Harris et al. v. Henry Shafer et al., 86 Tex. 314

BROWN, Associate Justice. Plaintiffs in error brought suit in the District Court of Brown County to recover from defendants in error a league and labor of land, granted by patent to the heirs of Mary Bird. Plaintiffs proved their title under the patentee, and defendants set up an outstanding title in J. H. Herndon, with which they in nowise connected themselves.

From the findings of fact made by the Court of Civil Appeals it appears, that Mary Bird died in the year 1840, and in 1845 an attempt was made by James Craft to administer upon her estate; he was appointed administrator in the Probate Court of Fort Bend County, but he did not qualify as such. At the July Term, 1847, Daniel Shipman applied to said court and was appointed administrator of the said estate.

No inventory was returned nor any order made in said estate until about the February Term, 1855, when Shipman filed an inventory, showing that the land in controversy was the only property belonging to the estate, which inventory was approved by the court. The land was patented to the heirs of Mary Bird in 1852. On the 22nd day of March, 1855, Shipman, as administrator, applied to the Probate Court for an order to sell 1800 acres of the land, stating that he had, as administrator, on the 7th day of October, 1847, made a contract in writing with John H.

Herndon and Janies Shipman for locating the headright certificate of Mary Bird, for which they were to receive $200, in payment for which they were to receive one-third of the land, the usual fee for such services, and that Herndon and Shipman had complied with the contract. On the 31st day of March, 1855, the Probate Court of Fort Bend County ordered the sale of 1800 acres of said land, reciting that 1535 acres should be sold to perfect the title of said Shipman and Ilerndojn, and that it was agreed upon that 1535 acres were to be deeded to Herndon and that 265 acres were to be sold to pay costs of court.

On the 25th of June, 1855, M. M. Battle, as agent of the administrator, Shipman, made a report to the said court of the sale of the land; 266 acres sold to Herndon for $69.16 to pay costs, and 1534 acres sold to Herndon for $300; and this was sold to il effect” title to J. H. Herndon and J. R. Shipman for locating. The report was sworn to by Battle !as agent of Shipman.

At the June Term, 1855, the court confirmed the sale so made, and ordered deed made to Herndon for the 1800 acres of land, “ it being the upper part of the survey.” The administrator made a deed to Herndon for the entire 1800 acres of land, described as “being the upper part of the league and labor of land granted to the heirs of Mary Bird, situated on the waters of Pecan Bayou, in Travis.” Judgment was rendered for the plaintiff in error, Shafer, in the District Court, which upon appeal was reversed by the Court of Civil Appeals and remanded for a new trial. The case is before this court on writ of error.

Plaintiffs in error seek a reversal of the judgment of the Court of Civil Appeals upon the following grounds: 1. That the administration of Shipman upon the estate of Mary Bird was void, because it appears from the record that there were no debts against the estate. I 2. That the sale to Herndon was void, because the administrator had no authority to make a contract with Herndon and Shipman to give a part of the land for locating the certificates, and the court had no jurisdiction to order the sale to perfect the title under such, a contract. . 3.

That the sale to Herndon was void for want of any sufficient description of the land sold. I The view taken on the last point renders it unnecessary to decide upoin the first two. We hold that the description given in the order of confirmation and in the deed is wholly insufficient, and in fact is no description, furnishing no means by which the land intended to be conveyed can be located at any particular place in the survey, and the sale is therefore void. In the case of Wofford v.

McKinna, 23 Texas, 45, the description was, “ 2500 acres, to commence at the beginning corner, and taken in a squaré, if it will admit of it.” From the field notes of the survey, the court held that the land could not be taken in a square at the point designate^, and said: “From its terms it is uncertain in what form the land is to be taken. Neither the owner of the land, the party in possession, nor the court can know from the face of the deed what are the boundaries of the claim.

The deed is void for uncertainty in the description of the premises, unless it can be aided by matter extrinsic of itself.” Wooters v. Arledge, 54 Texas, 397. Putting the sale upon the same basis as if between private parties, there is still nothing in the record to aid the description given in the order of confirmation and deed. The words “ the upper part of the survey” can mean nothing but the higher part of the survey, which could only have reference to the elevation of its surface, and would be as indefinite as the language attempted to be interpreted.

The upper or higher part may be at either end or side, or it may be in the center of the survey. From the field notes of the original survey, it appears that the beginning corner is on Pecan Bayou, and runs thence up the bayou with its meanders to a stake; thence south 45 west 10,168 varas a stake and mound; thence south 45 east 2550 varas to a stake and mound; thence north 45 east 9842 varas to the beginning.

If we assume that upper part referred to the highest point, on the bayou, the survey could not be located there for want of space to contain so large a tract; or if it be admitted that this was intended as the beginning corner, and that the survey should be located in a square, it can not be done on account of the shape of the original survey at that point. But we think that the language could not be interpreted to mean either of these, and as applied is meaningless.

If the court were to render judgment for the defendants for 1800 acres to be taken out of the “ upper part of the survey,” and for plaintiff for the remainder, a partition would be necessary. When the court appointed commissioners to partition the land they would be in dilemma as to the place at which defendant’s land should be set aside; and if the commissioners should settle upon what they believed to be the upper part, and reported to the court, how could the judge tell whether the instructions had been obeyed or not ? As was said in Wofford v.

McKinna, supra, neither the parties to the suit, the commissioners to partition, nor the court could, from the description given, know the boundaries to the claim. The judgment of the Court of Civil Appeals is reversed, and the judgment of the District Court is affirmed; and it is ordered, that the plaintiffs m error recover of and from the defendants in error and their sureties on their appeal bond all cost incurred in this court, the Court of Civil Appeals, and in the District Court. Delivered November 16, 1893.