Goldman v. Douglas

• Decision Date: 16 October 1891
• Court: Texas Supreme Court
• Parties: GOLDMAN v. DOUGLAS <I>et al.</I>

17 S.W. 235

GOLDMAN v. DOUGLAS et al.

Supreme Court of Texas.

October 16, 1891.

Appeal from district court, Hunt county; E. W. TERHUNE, Judge.

Trespass to try title by Jacob D. Goldman against W. E. Douglas and others. From a judgment in defendants' favor, plaintiff appeals. Reversed.

Yoakum & Looney, for appellant. Grubbs & Hefner, for appellees.

HENRY, J.

This was an action of trespass to try title, brought by the appellant. The description of the land contained in plaintiff's petition was as follows. "A part of the John Gillespie survey, situated in the city of Greenville, Hunt county, Texas, beginning at the south-east corner of the old town donation; thence east, with Mercers colony line, 173¾ varas; thence north 325 1/8 varas; thence west 173¾ varas, to old town donation; thence 325 1/8 varas, to the beginning, — except that part previously conveyed to Hagood, Dagley & Ende by J. W. Hawkins." There was a judgment for the plaintiff by default, in which the land was described substantially as it was in the petition, except that the designation of place was omitted. A motion in arrest of the judgment, on the ground of the insufficiency of the description of the land contained in the petition, was made more than two days after the judgment was rendered. This motion was sustained by the court, and, the plaintiff having declined to amend his petition, his suit was dismissed. We feel constrained, by former decisions of this court, to hold that there was error in dismissing plaintiff's suit because of the insufficient description of the land sued for in his petition. Crabtree v. Whitesellee, 65 Tex. 111; Steinbeck v. Stone, 53 Tex. 385; Wilson v. Smith, 50 Tex. 365. In such cases as the one before us, the better practice is for the plaintiff to ascertain and give in his petition an accurate description of the land sued for, and a failure to do so is not to be commended. If the duty is omitted in the pleading, he may aid the officer who executes the writ of possession by then producing the deeds and performing such acts as may be required to definitely point out the land to which the description in the judgment applies. If he fails in that duty, he cannot demand an execution of the writ by the officer, nor can he be permitted to prejudice the rights of other parties by causing the writ of possession to be executed upon any property not properly embraced in the description given in the pleadings and judgment. It is not apparent that the land in...