Crabtree v. Whiteselle

• Decision Date: 17 November 1885
• Docket Number: Case No. 1904
• Citation: 65 Tex. 111
• Parties: THOS. J. CRABTREE v. J. E. WHITESELLE.
• Court: Texas Supreme Court

65 Tex. 111

THOS. J. CRABTREE

v.J. E. WHITESELLE.

Case No. 1904

Supreme Court of Texas.

Nov. 17, 1885.

APPEAL from Navarro. Tried below before the Hon. L. D. Bradley.

The opinion states the case.

Croft & Blanding, for appellant, on the description of the land, cited: R. S., art. 4786, division 2; Croft v. Rains, 10 Tex., 520;Jones v. Andrews, 62 Tex., 653;Knowles v. Torbitt, 53 Tex., 557;Norris v. Hunt, 51 Tex., 609; Rogers v. Dagley, Tex. Law Rev., vol. 1, p. 12; Acts of 1871, ch. 139.

On the return they cited: R. S., arts. 2287, 2835, 2288, 2309; R. S., art. 1184; Davis v. Fish, 48 Am. Decs., 387; Pierce v. Hill, 33 Am. Decs., 306; Coleman v. Henderson, 12 Am. Decs., 290.

On homestead they cited: Wilson v. Cochran, 31 Tex., 677;Clements v. Lacy, 51 Tex., 150;Williams v. Wethered, 37 Tex., 130;Smith v. Deschaumes, 37 Tex., 429.

W. J. McKie, for appellee, on sufficiency of description, cited: Howard v. North, 5 Tex., 290;13 Tex., 598;Hancock v. Metz, 15 Tex., 209;27 Tex., 593;29 Tex., 217.

On homestead he cited: Moreland v. Barnhardt, 44 Tex., 280;Baird v Trice, 51 Tex., 556;Clements v. Lacy, 51 Tex., 150; H. & G. N. v. Winter, 44 Tex., 597;Moreland v. Barnhardt, 44 Tex., 275;Barnes v. White, 53 Tex., 628;Anderson v. McKay, 30 Tex., 190;Franklin v. Coffee, 18 Tex. 413.

ROBERTSON, ASSOCIATE JUSTICE.

In the court below appellee brought trespass to try title against appellant and Geo. W. Crabtree. C. H. and L. J. McCormick intervened, and claimed against both parties one-fourth of the land in controversy. A judgment was rendered for appellee for three-fourths and for intervenors one-fourth of the land. Intervenors' part was that claimed by Geo. W. Crabtree, and, as he did not appeal, this part of the suit is disposed of. Appellee's right to recover one-half the tract was not disputed. The issue in the court below brought here for revision is whether appellant or appellee is the owner of the remaining undivided one-fourth of the land. The plaintiff's petition described the land as “eighty-five acres of land, more or less, out of the Lewis Powell one-third of a league survey, situate about five miles northeast of Corsicana in Navarro county, Texas, said eighty-five acres being a farm that belonged to Mrs. Sarah Jane Crabtree up to the time of her death, and known as the Crabtree place.” To this petition appellant urged a general demurrer, which was overruled. This action of the court is complained of here on the ground that the description given is not sufficient on its face to identify the subject matter of the suit. This issue can be made by demurrer only when it is manifest that the terms used do not distinguish the land from all other tracts. The cases in which it has generally been held that the description given is insufficient are those in which the land is described as a given but unidentified number of acres out of a larger tract. Norris v. Hunt, 51 Tex., 609;Wofford v. McKenna, 23 Tex., 36. The land here sued for is a part of a larger tract, but the part is known as the “Crabtree place.” It is also described as the farm which belonged to Mrs. Crabtree up to the date of her death. It is not impossible that the bounds of the tract may be as well defined by these descriptions as by field notes. If it be true that a well defined tract of land is known as the “Crabtree place, and no difficulty is shown to have been encountered on the trial in determining precisely the limits of the land in controversy, to describe it as the “Crabtree place” in the petition in a suit for it, is not on the face of the pleading an insufficient description. The demurrer was therefore properly overruled. The objections to evidence based on this ground were also properly overruled.

The appellee claimed the one-fourth interest in the land also claimed by appellant, under a purchase at execution sale of that interest as appellant's property. The appellant objected to the introduction in evidence of the execution under which appellee claimed, on the ground that the return indorsed on it did not show that defendant was called upon to point out property, or who pointed out the property levied upon, or that notices of sale were posted as required by law. The return does fairly show that notice of sale was given as required by law, but the omission of all these matters has been repeatedly held to be an irregularity not affecting the validity of the sale. Howard v. North, 5 Tex.; Sydnor v. Roberts, 13 Tex. The return on the execution and the deed made to the plaintiff by the sheriff both show that the sale was made on the first Tuesday in November, 1884, and that being a holiday under the statute (R. S., art. 2835), appellant objected to both instruments on that ground, and the objection was overruled. This action of the court is assigned as error. Article 1184 of the Revised Statutes provides that, “no civil suit shall be commenced, nor shall any civil process be issued or served on Sunday, or any legal holiday, except in case of injunction, attachment or sequestration.” This article is in the chapter on the commencement of suits, and the prohibition contained in it against the issuance and service of process on holidays was intended to be confined to such process as may be required in the commencement of a suit, except in cases of injunction, attachment and sequestration. Sunday is at common law a dies non juridicus, and hence the issuance and service of process on that day is invalid, independent of statute. As to Sunday the statute declares the common law, and by the exception, modifies it. Holidays, on the other hand, have only the sanctity attached to them by statute. The public offices may be closed, and as to commercial paper the...