Norris v. Hunt

• Decision Date: 01 January 1879
• Citation: 51 Tex. 609
• Parties: S. E. NORRIS v. THOMAS M. HUNT.
• Court: Texas Supreme Court

51 Tex. 609

S. E. NORRIS

v.THOMAS M. HUNT.

Supreme Court of Texas.

1879.

APPEAL from Burleson. Tried below before the Hon. Spencer Ford.

Suit brought in trespass to try title by S. E. Norris against Thomas M. Hunt, R. G. Broadus, T. D. Sullivan, and others, to recover two tracts of land, which were fully described in the petition.

The defendants answered by a general exception, a general denial, a plea of not guilty, the special plea of three years' limitation, a suggestion of valuable improvements made in good faith, and a suggestion that plaintiff's claim is a cloud upon their title.

On the 13th of March, 1878, the case was submitted to the court upon the law and facts, and judgment was rendered for the defendants, from which Norris appealed.

In addition to the facts stated in the opinion, and to make intelligible the propositions enunciated by appellee's counsel, it should be stated that nearly ten years elapsed after the marshal's deed without, so far as the record discloses, any objection being urged by Norris or his wife to the sale made by the marshal or his deed, and that in his will Norris made no reference to the land described in the petition.Davis & Beall and Sayles & Bassett, for appellant Norris, in support of their objections to the deed offered in evidence from Blocker to Carlton, cited Wofford v. McKinna, 23 Tex., 36;Kilpatrick v. Sisneros, 23 Tex., 113;Hurt v. Moore, 19 Tex., 269;Pressley v. Testard, 29 Tex., 199;Hearne v. Erhard, 33 Tex., 60;Kingston v. Pickins, 46 Tex., 99;Flanagan v. Boggess, 46 Tex., 330;Ballard v. Anderson, 18 Tex., 377;Ragsdale v. Robinson, 48 Tex., 380;Coffee v. Silvan, 15 Tex., 354; Herm. on Ex., secs. 259, 294; Freem. on Ex., secs. 281, 330, and authorities cited; Ronkendorff v. Taylor, 4 Pet., 349;Throckmorton v. Moon, 10 Ohio, 43; Jackson v. Rosevelt, 13 Johns., 96; Jackson v. Delancy, 13 Johns., 537;Mesick v. Sunderland, 6 Cal., 297, referring to Neel v. Hughes, 10 Gill. & Johns., 7.

The court erred in permitting the defendants to introduce the testimony of A. W. McIver, H. C. A. King, and J. M. Wyett for the purpose of identifying the land intended to be conveyed, and of aiding the description thereof as contained in Johnson v. Granger, infra, p. 42; Wofford v. McKinna, 23 Tex., 36; 1 Greenl. Ev., secs. 297, 300, and authorities cited above.)

[Sayles & Bassett filed a separate written argument, in which all the authorities are ably and carefully reviewed. Its length precludes insertion.]

J. D. Thomas and McIver & Homan, for appellees.

I. After acquiescence in the marshal's sale for eight years and nine months by appellant and by her husband, under whom she claims, the court could not, upon mere inspection, reject the marshal's deed read in evidence for insufficiency in its description of the land conveyed. (Wilson v. Smith, 50 Tex., 365;Flanagan v. Boggess, 46 Tex., 331;Howard v. North, 5 Tex., 312;Laub v. Buckmiller, 17 N. Y., 627.)

II. From all that appears in the record, this court must presume that it was sufficiently shown on the trial of this case that appellant and her husband, under whom she claims, had waived any insufficiency in the description of the land conveyed by the marshal's deed.

In addition to evidence of acquiescence in the marshal's sale, it was admitted on the trial that both parties claimed the land under J. M. Norris, and that neither need trace title farther back, and that appellees were in possession of the land in suit, claiming the same as their own.

The statement of facts also contained this clause: “There was evidence of improvements made by defendants, but, under the ruling of the court, it is not deemed necessary to insert such evidence, and it is omitted from this statement of facts.” (Lee v. Kingsbury, 13 Tex., 72, 73;Wilson v. Smith, 50 Tex., 365;Miller v. Alexander, 13 Tex., 506;Alexander v. Miller, 18 Tex., 896; Freem. on Ex., 307; Rorer on Jud. Sales, 895, 897.)

III. It was competent to prove by the witnesses McIver, Wyett, and King, that they were familiar with the land in suit, and that the designation given it in the marshal's deed and papers therein is correct. (Flanagan v. Boggess, 46 Tex., 331;Camley v. Stanfield, 10 Tex., 550, 552; Freem. on Ex., secs. 281, 330; 1 Greenl. Ev., 286-290, 300; Dygert v. Pletts, 25 Wend., 402.)

BONNER, ASSOCIATE JUSTICE.

The decisive question in this case is presented by the first and second assignments of error.

The first assignment of error is, that “the court erred in refusing to exclude as evidence the deed from A. P. Blocker, U. S. marshal, to Fred Carlton, on the ground that the land purporting to be conveyed in said deed is not described by any certain matter of description or identity, and that said deed is void for uncertainty in the description of said land.”

The defendant claimed title to the property under a sale made by Blocker, U. S. marshal, on an execution against J. M. Norris and the deed executed by Blocker to Carlton. The levy indorsed on the execution describes the land as “six hundred and forty acres, L. Dickerson league, Burleson county.” A levy was also made on two three hundred and twenty acre tracts in Burleson county, out of different leagues. The return reads as follows: “Levied upon and sold lands in Burleson county; three hundred and twenty acres at 30 cents, $96; three hundred and twenty acres at 46 cents, $147.20; six hundred and forty acres at 13 cents, $83.”

The defendants, as a part of their title, offered in evidence a deed from the U. S. marshal to Fred Carlton, under whom they claimed, which, among other things, purported to convey all the interest of J. M. Norris in “six hundred and forty acres of land situated in the said county of Burleson, and being part of the league of land originally granted to L. Dickerson.”

Plaintiff objected to the admission of the deed in evidence, on the ground that the same was void for uncertainty in the description of the land purporting to be thereby conveyed, but the court overruled the objection and admitted the deed in evidence; to which ruling the plaintiff excepted, and also assigned the error as one of the grounds for a new trial.

The second assignment of error is, that “the court erred in permitting the defendants to introduce the testimony of A. W. McIver, H. C. A. King, and J. M. Wyett for the purpose of identifying the land intended to be conveyed, and of aiding the description thereof as contained in said deed from Blocker to Carlton, on the ground that said testimony was not competent for that purpose; that said deed upon its face contains no description sufficiently certain to convey any land; that the ambiguity in said deed is a patent ambiguity and cannot be aided by extrinsic evidence, and that said testimony was irrelevant to the issues.”

The substance of the deed from Blocker to Carlton is given in the statement under the first assignment of error. In order to identify the land claimed by defendants under the marshal's deed, they offered the witnesses named, who, in substance, stated that it was generally known that Norris owned a prairie tract of four hundred acres and a timber tract of two hundred and forty-four acres about one mile distant from each other, parts of the Lemuel Dickerson headright league in Burleson county. An inquiry as to Norris' six hundred and forty acres in the Dickerson league would have been understood by the witnesses as referring to these two tracts. Plaintiff's objection to the admission of the evidence on the grounds mentioned in the second assignment of error was overruled; to which plaintiff excepted, and also made this error one of the grounds for the motion for new trial.

The statute of frauds requires that a conveyance of lands, to be valid, must be in writing. (Paschal's Dig., art. 3875.)

It is said by Chief Justice Marshall, in Chinoweth v. Haskell, 3 Peters, 96, that “It is an obvious principle that a grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself.”

Both for the reasons for which the statute of frauds was enacted and upon the authority of adjudged cases, this rule should apply as well to other instruments for the conveyance of lands, as to grants technically so known.

The true rule, as deduced from the authorities, seems to be that this description should be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land...