Continental Supply Co. v. Missouri, K. & T. Ry. Co.

• Decision Date: 09 February 1925
• Docket Number: (No. 467-4006.)
• Citation: Continental Supply Co. v. Missouri, K. & T. Ry. Co., 268 S.W. 444 (Tex. 1925)
• Parties: CONTINENTAL SUPPLY CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

268 S.W. 444

CONTINENTAL SUPPLY CO. v. MISSOURI, K. & T. RY. CO. OF TEXAS et al.^*

(No. 467-4006.)

Commission of Appeals of Texas, Section B.

February 9, 1925.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by the Missouri, Kansas & Texas Railway Company of Texas and another against the Continental Supply Company. Judgment for plaintiffs affirmed (250 S. W. 1095), and defendant brings error. Judgment affirmed.

Butts & Wright, of Cisco, for plaintiff in error.

Chas. C. Huff and A. H. McKnight, both of Dallas, and Scott, Brelsford, Funderburk & Ferrell, of Eastland, for defendants in error.

HAMILTON, J.

Defendants in error, the Missouri, Kansas & Texas Railway Company of Texas and the Texas Central Railroad Company, hereinafter called plaintiffs, brought this suit in trespass to try title against plaintiff in error, hereinafter called defendant, all parties being corporations, to recover a tract of land in the city of Cisco, Eastland county, Tex., more particularly described as follows:

Beginning at a point on the projected north line of west Fourth street, in said city of Cisco, according to the official map or plat of said city on record in the records of deeds of said Eastland county, Tex., from whence the point of intersection of said north line of west Fourth street with the projected east line or side of avenue D of said city is westerly 160 feet; thence at right angles to said north line, and side, of said west Fourth street, 115 feet; thence at right angles to said easterly side, in an easterly direction, 20 feet; thence at right angles in a southerly direction, parallel with said easterly side, 116 feet to the north side line of said west Fourth street; thence in a westerly direction along the north side of said west Fourth street, 20 feet to the point of beginning.

It was agreed by the parties that the Texas Central Railroad Company was the common source of title. Deeds of both parties resulted from sales under a judgment of the United States Circuit Court at Waco.

Defendant's chain of title comes through a deed of a United States marshal, made as a result of a sale under an execution issued out of that court by virtue of the aforesaid judgment. Defendant claimed the above-described tract of land as a part of a larger tract. The only description of the land in the marshal's deed under which the defendant claims was as follows: "120 acres out of the W. A. Rhoades survey, abstract No. 858, and survey No. 84, situated in Eastland county, Texas." The record shows without contradiction that the W. A. Rhoades survey in which this 120 acres is situated contained 160 acres. The lots in controversy are in that survey. When defendant offered this deed in evidence as a link in its chain of title, the plaintiffs objected on the grounds "that the deed as to the tract of land above mentioned is void because of the insufficiency of the description of said tract of land; there being nothing in the deed from which the land can be identified, and no data therein on which to base a location and identification thereof from extrinsic facts." The court sustained the objection, and on October 18, 1921, rendered judgment in favor of plaintiffs. On April 4, 1922, defendant filed in the office of the district clerk its bond, application, etc., praying for the issuance of a writ of error to the Court of Civil Appeals at Fort Worth. The case was transferred to the Court of Civil Appeals at El Paso, which affirmed the judgment of the trial court. 250 S. W. 1095.

The judgment above referred to decreed:

"That the railroad property and premises as described in the mortgages to the Farmers' Loan & Trust Company shall be sold as one parcel and as an entirety. And Charles Dillingham and John Winters are appointed special master commissioners for the purpose of making the sale ordered by the decree and to execute and deliver a deed of conveyance of the property to be sold to the purchaser or purchasers thereof."

The judgment then further decrees that:

"If the proceeds of the sale of the property above directed should be so made shall not be sufficient to satisfy the judgment herein adjudged in favor of the Farmers' Loan & Trust Company, trustee, and in favor of Morgan's Louisiana & Texas Railroad & Steamship Company, the said complainant, Morgan's Louisiana & Texas Railroad & Steamship Company, and the said cross-complainant, the Farmers' Loan and Trust Company, are hereby declared to have personal judgment and decree against the Texas Central Railroad Company for the balance due and remaining due to them respectively, and over and above the proceeds of the sale and have execution in due form of law for the balance due them respectively, and leave is hereby given to the said complainant and cross-complainant to levy and issue execution upon the property of the defendant now in the hands of the receiver, if any, not subject to the mortgages above mentioned, and sell the same in due form of law, and apply the proceeds of same to the satisfaction of said balance due them respectively."

The purpose in setting out the above portion of the judgment is to show that there was no foreclosure of a lien upon the Rhoades survey by designation and description.

The execution under which the marshal made the sale and executed the deed commanded him:

"That of the goods, and chattels, lands, tenements and estates of said Texas Central Railway Company, you cause to be made the judgment, interest and cost aforesaid."

No description of the land appears in the execution. The marshal's return on the execution was:

"Executed * * * by seizing and levying upon the following described real estate * * * situate in the town of Cisco, Eastland county, Texas, to wit: [here follows designation of certain lots by number and block]. ...