Pickett v. Bishop

• Decision Date: 05 October 1949
• Docket Number: No. A-2235.,A-2235.
• Citation: Pickett v. Bishop, 223 S.W.2d 222, 148 Tex. 207 (Tex. 1949)
• Parties: PICKETT et ux. v. BISHOP.
• Court: Texas Supreme Court

223 S.W.2d 222

PICKETT et ux. v. BISHOP.

No. A-2235.

Supreme Court of Texas.

October 5, 1949.

W. A. Hawkins, Fort Worth, for petitioners.

Warlick, Bunnenberg & Douglas, Vernon, for respondent.

SMEDLEY, Justice.

The principal question in this case is that of the sufficiency of the description of land contained in a memorandum in writing signed by respondent Bishop, the owner, authorizing petitioners Pickett and wife as real estate dealers to sell the land for a commission. The trial court's judgment dismissing petitioners' suit, after sustaining special exceptions to the petition, was affirmed by the Court of Civil Appeals. 219 S.W.2d 732.

The body of the memorandum signed by respondent describes the land as "my property described on the opposite side hereof", and the petition alleges that on the reverse side of the memorandum appears the following: "20.709 acres out of John Stephens 640 acre survey in Tarrant County, Texas."

Section 22 of The Real Estate Dealers License Act, being a part of the Acts of the Regular Session of the 46th Legislature, pp. 560, 576, Vernon's Annotated Civil Statutes, Article 6573a, provides that no action shall be brought for the recovery of a commission for the sale or purchase of real estate "unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereto lawfully authorized."

We approve the holding made in several decisions of the courts of civil appeals that, because the wording of the above quoted part of Section 22 of The Real Estate Dealers License Act is substantially the same as the wording of the first paragraph of Article 3995, the statute of frauds, the established rules governing the construction of Article 3995 should be applied in determining the sufficiency of the description of the land in the memorandum in writing required by Section 22 of The Real Estate Dealers License Act. Dunn v. Slemons, Tex.Civ.App., 165 S.W. 2d 203; Volkmann v. Wortham, Tex.Civ. App., 189 S.W.2d 776; Dickson v. Kelley, Tex.Civ.App., 193 S.W.2d 256; Shook v. Parton, Tex.Civ.App., 211 S.W.2d 368; Lyon v. Harmon, Tex.Civ.App., 212 S.W. 2d 491.

The Court of Civil Appeals in this case, without taking into consideration the words "my property" in the body or face of the memorandum, and treating the words on the back of the memorandum as the description of the land, held that the memorandum was insufficient for want of proper description. Its decision would have been correct had the only description of the land been that appearing on the back of the memorandum, which is "20.709 acres out of John Stephens 640 acre survey in Tarrant County, Texas." Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703; Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150; Greer v. Greer, 144 Tex. 528, 191 S. W.2d 848. But the words "my property" in the body of the instrument are not to be ignored. Looking both to those words and to the further description on the back of the memorandum, the land to which the memorandum relates is described by it as my property, being 20.709 acres of land out of the John Stephens 640 acre survey in Tarrant County, Texas, or my 20.709 acres out of the named survey.

The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as "my property", "my land", or "owned by me", is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum. Ragsdale v. Mays, 65 Tex. 255; Morrison v. Dailey, Tex. Sup., 6 S.W. 426; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Vineyard v. O'Connor, 90 Tex. 59, 36 S.W. 424; Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177, 93 Am.St.Rep. 814; Sanderson v. Sanderson 130 Tex. 264, 267, 109 S.W.2d 744; Beaton v. Fussell, Tex.Civ.App., 166 S.W. 458; Spalding v. Smith, Tex.Civ.App., 169 S.W. 627, application for writ of error refused; Ellett v. McMahan, Tex.Civ.App., 187 S.W.2d 253. The stated ownership of the property is in itself a matter of description which leads to the certain identification of the property and brings the description within the terms of the rule...