Allday v. Whittaker

• Decision Date: 05 November 1886
• Citation: 1 S.W. 794
• Parties: ALLDAY v. WHITTAKER and others.
• Court: Texas Supreme Court

1 S.W. 794

ALLDAY v. WHITTAKER and others.

Supreme Court of Texas.

November 5, 1886.

Appeal from Cass county.

G. T. Vaughn, H. A. O'Neal, J. L. Sheppard, and Cuff Adams, for appellant. O'Neal & Son and H. C. Hynson, for appellees.

STAYTON, J.

This action was brought by the appellant to recover an undivided half interest in 50 acres of land on which stands a village now known as "Wayne Station," but heretofore known as the "Town of Hoxie." The entire tenants of land formerly belonged to A. Frunk and W. T. Cobb, who held it as tenants in common at one time. The appellant deraigns title through a sale made by the sheriff under a judgment against Frunk. That judgment was rendered on February 9, 1883, and declared a lien by virtue of an attachment levied October 6, 1882, at 2 o'clock P. M. The defendants Whittaker & Galloway claim the interest which Frunk owned in the land, under a sheriff's deed made under a judgment against Frunk declaring an attachment lien on the land. This judgment was rendered on December 15, 1882, and declared a lien through an attachment levied on the land October 6, 1882, at 11 o'clock A. M. The description of the land, as given in the sheriff's return on the writ of attachment last referred to, was as follows: "Twenty-five acres of land, lying situate west of the railroad, and close to and adjoining the said Wayne Station, together with all the tenements thereon situated." This description was used in the judgment directing the land to be sold, in the order of sale, and in the sheriff's deed through which the defendants Whittaker & Galloway claim, and no other description of the land is therein given. When the several papers evidencing the links in the chain of title to Whittaker & Galloway were offered, they were objected to on the ground that they gave no sufficient description of the land. This objection was overruled, the papers admitted, and a judgment rendered in favor of defendants. These rulings are assigned as error.

If the description of the land in the proceedings and papers under which Whittaker & Galloway claim were sufficient to pass to them the title which Frunk formerly held, the judgment was manifestly right, for the levy of the attachment through which they claimed occurred anterior to the levy of the attachment through which the appellant claims. The rule in reference to judgments directing land to be sold, orders of sale made thereunder, and deeds made by sheriffs in pursuance of sales so directed to be made, is that in these 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. The description given in this case is such as may be, with equal propriety, applied to any one of several tracts of land. The land levied upon, directed to be sold, and sold, is said to consist of 25 acres west of the railroad. This will apply to a large number of tracts. It is, however, declared to be "close to and adjoining the said Wayne Station." If, as the record leads us to infer, the whole tract of 50 acres on which the town of Hoxie was laid off is now known as "Wayne Station," then no part of the land claimed by the appellant would be covered by the deed made to Whittaker & Galloway, were the 25 acres intended to be conveyed described with sufficient certainty. The 25 acres sold may be north, west, or south of Wayne Station, whether we consider that to embrace the entire 50 acres formerly known as the "Town of Hoxie," or only a part of it, and it may be in almost any conceivable form, and yet "close to and adjoining the said Wayne Station." Such a description in a judgment, order of sale, sale, or sheriff's deed must be held insufficient, and the objections urged against the admission of the several papers should have been sustained. Murray v. Land, 27 Tex. 90; Norris v. Hunt, 51 Tex. 610; Mitchell v. Ireland, 54 Tex. 305; Wooters v. Arledge, Id. 395; Pfeiffer v. Lindsay, 6 Tex. Law Rev. 243.

As against Whittaker & Galloway, the appellant shows a title which authorized a judgment in his favor.

The controversy between the appellant and the defendant Cobb arises out of the fact that, before the levy of the attachment under which the appellant claims, Frunk and Cobb made a parol partition of the 50 acres of land, of which the appellant claims to have had no notice at the time he bought and paid for the interest of Frunk in the entire tract. It appears that the Texas & Pacific Railway runs...