Davis v. Kirby Lumber Corporation, 3950.

• Decision Date: 22 January 1942
• Docket Number: No. 3950.,3950.
• Citation: 158 S.W.2d 888
• Parties: DAVIS et al. v. KIRBY LUMBER CORPORATION et al.
• Court: Texas Court of Appeals

158 S.W.2d 888

DAVIS et al. v. KIRBY LUMBER CORPORATION et al.

No. 3950.

Court of Civil Appeals of Texas. Beaumont.

January 22, 1942.

Rehearing Denied February 11, 1942.

Appeal from District Court, Polk County; Lex Smith, Judge.

Action in trespass to try title by Clark Davis and others against Kirby Lumber Corporation and others. From a judgment for defendant on an instructed verdict, the plaintiffs appeal.

Affirmed.

Manry & Cochran, of Livingston, and Fouts, Amerman & Moore, C. F. Stevens, O'Brien Stevens, A. T. Carleton, and Fulbright, Crooker, Freeman & Bates, all of Houston, for appellants.

V. A. Collins, M. M. Feagin, R. H. Jones, and Campbell & Foreman, all of Livingston, and Platt, West & Stevenson, Fountain, Cox & Sandlin, and S. E. Wilcox, Jr., all of Houston, for appellee.

WALKER, Chief Justice.

This is an action in trespass to try title by appellants, Clark Davis et al., plaintiffs below, against appellees, Kirby Lumber Corporation et al., defendants below. Judgment was against appellants and in favor of appellees on an instructed verdict, from which this appeal was regularly prosecuted.

The land in controversy lies in the northwest corner of a tract of 1060 acres, which extends across the north end of the P. A. Sublett Survey, in Polk County. John F. Carr, the common source, in 1873 acquired title to a tract of 1210 acres on the Sublett Survey, including the 1060 acres referred to above, by deed recorded in Vol. O, pages 209-212, deed records of Polk County; this was all the land owned by Carr on the Sublett Survey. On the 28th day of September, 1889, Carr sold and conveyed a tract of 790 acres out of his 1210 acres on the Sublett Survey, leaving him on that survey 420 acres in two tracts, (a) tract No. 1, the land in controversy, described as containing 271 acres, and (b) tract No. 2, containing 150 acres immediately south of the southwest corner of the tract of 1060 acres, which tract is not in controversy. Up to 1889, Carr rendered for taxes 1210 acres on the Sublett Survey; subsequently he rendered 421 acres.

On the 7th day of October, 1891, Carr, on a valuable consideration, conveyed by deed in writing 270 acres, the land in controversy, to A. H. Beazley, which deed was first filed for record in the deed records of San Jacinto county, but not in the records of Polk County until the 28th day of February, 1901. Appellees hold through a regular chain of title from and under the common source, through A. H. Beazley.

On the 5th day of October, 1891, two days before Carr, the common source, conveyed the land in controversy to Beazley, the J. S. Brown Hardware Company instituted its suit in district court of Galveston County against Carr and D. S. Chandler. Writ of attachment was issued in that suit on the 20th day of November, 1891, and on the writ of attachment the sheriff of Polk County made the following return: "Came to hand Nov 21st 1891 at 8 o'clock P m and executed same day by attaching the following described Real Estate the property of Defendants John F. Carr and D. S. Chandler, the following described lands * * * the property of John F. Carr situated in Polk County * * * Abstract No. 71; number of acres 421; original grantee, P. A. Sublett; book and page where recorded, O 209,212; * * * The above described property is the same rendered by defendants for Taxation to the assessor of Taxes of Polk County for the year 1891."

Judgment was entered in the suit against Carr on the 9th day of December, 1891, foreclosing the attachment lien on the attached property, and J. S. Brown Hardware Company purchased at the foreclosure sale all the attached property, more than thirteen thousand acres, at less than one cent per acre. Appellants claim under the common source, through the sheriff's deed to J. S. Brown Hardware Company.

The verdict in the lower court was instructed in favor of appellees on the court's conclusion that the description of the land in controversy, as given in the sheriff's return on the writ of attachment in the suit of J. S. Brown Hardware Co. v. Carr & Chandler, was void.

To pass title under attachment proceedings, the description of the land, as given in the sheriff's return on the writ of attachment, must be as clear and definite and certain as the description in a deed. In order to pass title by a deed the description must identify the land conveyed with reasonable certainty—that, in order to meet the requirements of the statute of frauds, Art. 3995, R.C.S.1925; Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703. The land must be identified by the description given to it in the deed. Chinoweth v. Haskell's Lessee, 3 Pet. 92, 7 L.Ed. 614; 14 Tex.Jur. 987. The terms of the deed control it. Hanks v. Hamman, Tex.Com.App., 288 S.W. 143. The deed itself need not contain all the identifying descriptive matter, but if other deeds or descriptive matter be brought into the deed, the reference to them must be made with certainty, and nothing can be left to doubtful inference. Linney v. Wood, 66 Tex. 22, 28, 17 S.W. 244. In Sellers v. Texas Central R. Co., 81 Tex. 458, 17 S.W. 32, 13 L.R.A. 657, our Supreme Court said: "Every conveyance should contain `the certainty of the thing granted to the full extent of the grant.'" The exact import of this proposition is that the description, as given in the deed, must be definite and certain upon the face of the deed, or made definite and certain by the other writings or descriptive matter referred to, 14 Tex.Jur. 987, and the extrinsic evidence resorted to in aid of the description in the deed must be found in the deed itself, and it must not conflict with the description given in the deed. 14 Tex.Jur. 952; 17 Tex.Jur. 888. Where the description in the deed must be supplemented by extrinsic evidence, the key to the extrinsic evidence—the "nucleus of description"— must be found within the four corners of the deed, and any evidence not consistent with the nucleus of description cannot be received in aid of the description. Continental Supply Co. v. Missouri, K. & T. R. Co., Tex. Com.App., 268 S.W. 444; Carter & Bro. v. Ewers, 133 Tex. 616, 131 S.W.2d 86, 123 A. L.R. 908.

The following cases illustrate the strictness with which our courts construe descriptive matter referred to in deeds to identify the land conveyed. The description of the royalty interest in issue in Smith v. Sorelle, supra, was of 100 acres out of Blocks 8 and 9 of a subdivision of the Pineda Survey, Patented to Adolphus Stern, Patent 608, three miles north of Gladewater, Texas. The description was complete as to the survey, its patent number and location, but was incomplete as to what particular 100 acres in Blocks 8 and 9 was conveyed. It was 100 acres out of Blocks 8 and 9. The balance of the description, furnishing an additional key, was, said land "being * * * under an oil and gas lease originally executed in favor of W. M. Worley." [126 Tex. 353, 87 S.W.2d 704]. As a matter of fact, as said by the Supreme Court, "No such document as a lease to W. M. Worley existed." There was in evidence a lease by the Smiths, the grantors, to H. F. Worley describing 100 acres in Blocks 8 and 9, and such lease was tendered in evidence as identifying the 100 acres referred...