J. M. Edrington et al. v. George H. Hermann et al., 97 Tex. 193

WILLIAMS, Associate Justice. This action was brought by E. A. Austin, one of the defendants in error, against George H. Hermann, to recover a tract of 84 acres of land, a part of the John Austin league in Harris County. Hermann disclaimed as to part of the land sued for and asserted title to the remainder. The plaintiffs in error, J. M. Edrington, W. H. Edrington, M. E. Súber and C. B. G., Counts, intervened, claiming all of the land against both plaintiff and defendant.

The judgment of the District Court was against the interveners and in favor of jplaintiff for part of the land and in "favor of defendant for the remainder. On appeal by the interveners, this judgment was affirmed by the Court of Civil Appeals, and this writ of error was granted from the judgment of affirmance. The interveners’ title depended upon the validity of a sheriff’s sale under execution against William T. Austin, deceased, under whom all the parties claimed. This sale was made in 1854 under execution in favor of Elam Stockbridge and Melinda G.

Stockbridge, administrator and administratrix of the estate of C. H. Stearns, deceased, against William T. Austin and J. F. Edrington, and, in the proceedings, the land sold was described as “all the right, title, interest and claim of the said William T. Austin and J. F. Edrington in and to a certain tract or parcel of land comprising 1400 acres, lying and being situate at and upon the northeast corner of the league of land upon which the city of Houston is situated, which said league of land was originally granted to John Austin, and conveyed to said William T. Austin by William Pierpont and his wife E. E.

Pierpont, which said Elizabeth E. Pierpont was the widow of said John Austin, and which land is the same mentioned in a certain deed of mortgage from William T. Austin to Christopher H.

Stearns, recorded on Harris County of deeds, book R, pages 139 and 140.” The mortgage referred to in this description described the property as follows: “A certain piece, parcel or tract of land comprising 1400 acres lying and situate at and upon the northeast corner of the league of land upon which the city of Houston is situated, which said league of land was originally granted to my brother, John Austin, and belongs to me by virtue of a certain deed from William Pierpont and his wife Elizabeth E. Pierpont.

The said Elizabeth E. was the widow -of John Austin, dec’d.” The conveyance referred to from Pierpont and wife to W. T". Austin, was of all their right, title and interest in the league. After the last named conveyance and before the mortgage to Stearns was given, a subdivision and plat had been made of the northeast quarter of the league into blocks, which subdivision was designated “German-town;” and'W. T. Austin had executed conveyances of some of such blocks, and his ownership in the league was reduced to less than 600 'acres in distinct parcels, none of which was in the northeast corner.

One of such parcels was in the 84 acres in controversy, lying some distance from the corner, but which would be embraced in a square survey of 1400 acres having the northeast corner for its beginning point and the northern and eastern lines of the league as two of its sides. • The judgments below against interveners resulted from the opinions of the trial judge and of the Court of Civil Appeals that, the sheriff’s sale was void, on account of the uncertainty of the description given of the land sold, and further examination of the subject has led us to the conclusion that this is true.

This court is not, however, prepared to assent to the view expressed by the Court of Civil Appeals, that such a description as that in question of a tract of land of a given quantity as lying in a corner of a larger tract authorizes the laying of it off in a square, but that this particular sale is void because such description does not, owing to the peculiar situation, indicate with sufficient certainty the land which the defendant in execution owned. If the 1400-acre tract was sufficiently described, it would seem to follow, from the decision of this court in Smith v.

Crosby, 86 Texas, 22, that the sale would pass title to any less quantity owned by the defendant and embraced within the tract described. The controlling question under that decision is, was the tract offered for sale sufficiently described? If so, the sale passed title to any part of it which belonged to the defendant. Some exceptions to this rule may exist, as where a town or city is located on the tract described in which the defendant in execution owns lots or blocks.

But we are not prepared to hold that a mere subdivision by plat into lots and blocks, when there is in fact no town or city, would prevent the application of the rule laid down in the case referred to. A definite decision upon this feature of the case is unnecessary, since we are of the opinion that no description of the 1400 acres sufficient under the facts shown to pass title was given by the sheriff.

The land is referred to ás a certain tract or parcel of land comprising 1400 acres lying, being and situate at and upon the given corner, and not.as 1400 acres to be taken or surveyed out of the league in that corner. It would doubtless have been competent for the sheriff to so describe the land to be sold as to authorize the specified quantity to be taken out of that corner in a square, or such other figure as he chose to designate.

Many authorities are cited from other States, where lands are divided by law into square sections which are, in turn, subdivided into smaller squares, holding that calls in the deed for so many acres in or out of a certain corner means, in law, that the quantity is to be surveyed in a square from the corner as a base. Walsh v. Ringer, 2 Ohio, 328; Bowers v. Chambers, 53 Miss., 880; Wilkinson v. Roper, 74 Ala., 140; Doe v. Clayton, 2 So. Rep. (Ala.), 31; Lego v. Medley, 48 N. W. Rep. (Wis.), 335; Smith v. Nelson, 19 S. W. Rep. (Mo.), 734; Richey v. Sinclair, 47 N. E. Rep. (Ill.), 364.

Other-authorities to a somewhat different proposition are: Goodbar v. Dunn, 61 Miss., 618; Gress Lumber Co. v. Coody, 74 Ga., 519; Pry v. Pry, 109 Ill., 466; Douglass v. McCoy, 5 Ohio, 522; Ray v. Pease, 95 Ga., 151; Turner v. Crane, 19 Texas Civ. App., 369. Whether or not this doctrine is to be applied to sheriff’s and other involuntary sales in this State, where the original surveys are not constructed or subdivided upon any uniform plan, has not, so far as we are now advised, been decided by this court, and we find it unnecessary to decide it now.

It has been applied in some cases by the courts of civil appeals. Wingo v. Jones, 59 S. W. Rep., 916; Day v. Hedham, 2 Texas Civ. App., 680. The reason why we regard this doctrine as inapplicable here is that, as before indicated, the sheriff, by his description, did not pursue the method thus pointed out of designating the land to be sold. - He described that upon which he levied as a certain tract or parcel, covered by a certain mortgage and containing so many acres, and not as a given quantity to be taken out of the league at the named corner; nor did he use any language appropriate to express that idea.

From such a description, it was impossible for persons desiring to purchase to see that the tract referred to was to be in a square. To illustrate this, let us suppose that Austin had owned in that corner of the league only a tract of 1400 acres which was not square. Would it not be evident, under the decisions in Hermann v. Likens, 90 Texas, 448, and Pier-son v. Sanger, 93 Texas, 160, that the mortgage would have applied, and that the execution sale would therefore have passed title, to the tract thus actually owned? We think jhis can only be answered in the affirmative.

The real question therefore is, whether or not a designation of land in such a proceeding appropriate to a specific, segregated parcel, can be applied, when it is found that the defendant in error 'did not own such a tract, so as to authorize the laying off of the given, quantity so as to include such land as the defendant did own? We think not, for the reason that such a description would lack the certainty required by all of the opinions of this court.

Hnder the principles laid down in those opinions, the mere fact that a description left it uncertain whether the land to be sold had already been separated from the larger tract of which' it was originally a part or was still to be ascertained by further action, would, because of the uncertainty, be fatal to the sale.

In the latest case in which there has been an elaborate discussion of the sufficiency of descriptions in sales, this principle was re-announced: “In these sales the policy of the law requires, not that there should exist the means of showing at some future time what is otherwise indefinite and uncertain, but that, at the time of the sale, it should be within the power of all who are by the notice invited to become bidders to know what was offered, and that it should not be left to be surmised or guessed, at some future time, as to what the officer intended to sell.” Hermann v. Likens, supra.

In that case the court found enough in the record of the probate proceedings to meet this requirement and to pass, under a general description, the title to a particular tract owned by the estate.

It would be inconsistent with the whole theory of that decision to hold, that, when a like attempt, such as that here in question, to designate by general description a specific tract, fails because no such tract was owned by the defendant in execution, the same description may be differently applied so as to separate from a league a less quantity, not previously segregated, and the chief portion of which is not owned by the defendant in execution, merely for the purpose of including within the boundaries so ascertained a small portion which, it is now found, would have been subject to the writ.

We therefore conclude that the sheriffs sale was void, because, first, there was no specific tract to which the description could* apply; and second, the terms used by the sheriff did not authorize purchasers, and do not authorize the court, to assume that the quantity specified was to be laid off in a square or in any other shape. Woofers v. Arledge, 54 Texas, 396. The judgment must therefore be affirmed. Affirmed.