Kellner v. Ramdohr

• Decision Date: 25 November 1918
• Docket Number: (No. 7624.)
• Citation: 207 S.W. 169
• Parties: KELLNER et al. v. RAMDOHR et al.
• Court: Texas Court of Appeals

207 S.W. 169

KELLNER et al. v. RAMDOHR et al.

(No. 7624.)

Court of Civil Appeals of Texas. Galveston.

November 25, 1918.

Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.

Suit by G. A. Kellner and others against O. J. Ramdohr and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

L. A. Carlton, of Houston, for appellants.

D. Edw. Greer, of Houston, for appellee Gulf Production Co.

Wilson & Follett, of Angleton, H. O. Schulz, of Rosenberg, and Elmer P. Stockwell, of Angleton, for appellees.

GRAVES, J.

That being the only question involved, this case turns upon the proper construction of the following written instrument:

                                  "Damon 1 day of July, 1908
                

"Know all men by these presents: That I, O. J. Ramdohr, of Brazoria Co., Tex., have this day sold to G. A. Kellner, C. C. Watson & R. F. Dickson, of Wharton Co., Texas, 29 acres in the E. S. Jones 1/3 league, consideration $522, five hundred & twenty-two dollars, cash in hand paid, $25.00 twenty-five dollars by said parties, the balance is to be paid in 50 days or as soon as abstract can be made.

                                          "O. J. Ramdohr."
                

Appellants sued appellees in the court below in trespass to try title for 29 acres of land out of the E. S. Jones 1/3 league in Brazoria county, Tex., which they specifically described by metes and bounds in this petition, their asserted claim thereto having its origin and sole basis in the copied instrument; in the alternative, should the instrument in and of itself be held not to have passed to them title to the land they sought, they declared upon and asked specific performance of it as a valid and competent contract for that purpose.

When the instrument was offered in evidence upon the trial, the court excluded it, holding the attempted description therein not only insufficient to identify and convey the land described in the petition, but also inadequate as a basis for the admission of the extraneous proof tendered in aid thereof. Judgment for the appellees necessarily followed, from which this appeal is prosecuted.

We think the ruling was correct. It seems to us that an inspection of the instrument discloses that, of and within itself, it did not sufficiently identify the particular land described in plaintiffs' petition. Aside from the caption, "Damon 1 day of July, 1908" — a circumstance without probative force — the only description is, "29 acres in the E. S. Jones 1/3 league." Standing alone, even if it had gone further and recited that the E. S. Jones one-third league was in Brazoria county, Tex., that description would have been equally applicable to as many different tracts of land as 29 is contained times in 1,476 — the number of acres in the one-third of a league — or about 50 tracts; and if that be true, it of course follows that such an instrument could not alone serve as an adequate conveyance of any particular piece of land.

But did it afford a proper basis or lay sufficient predicate for the introduction of extraneous evidence in aid of such descriptive matter as it did contain?

While the question is not clear of doubt, we conclude that it did not. The principles of law governing cases of this general character have been so often declared and so well settled, especially in Texas, that it is felt neither necessary to go elsewhere for authority, nor to attempt by extended discussion to add anything of value to what our own courts have already said upon the subject.

As we understand the Texas cases, the rule may be substantially, at least, thus stated: The writing itself must either upon its face identify the land, or it must expressly or by implication refer to some instrument, document, map, plat, record, or outside fact — that is, furnish the means — by which the land can with reasonable certainty be identified. Penn v. Yellow Pine Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Rosen v. Phelps, 160 S. W. 105. Tested by this rule, the instrument here involved meets neither of its requirements; not only does it fail to state the county, state, or locality where the land is situated, but contains no implied reference even to any record, paper document, fact, or object, natural or artificial, to which the outside evidence tendered in aid of it might attach. As we understand the proper application of the rule stated, evidence aliunde has not been admitted, except for the purpose of making something so referred to in the instrument itself applicable or attachable to a particular tract of land; that seems to us to be the net result and effect of the holdings in all the Texas cases upon the point cited and relied on by appellants, the principal ones being Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Hinzie v. Robinson, 21 Tex. Civ. App. 9, 50 S. W. 635; Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Pierson v. Sanger Bros., 93 Tex. 160, ...