Poitevent v. Scarborough

• Decision Date: 19 January 1910
• Citation: 124 S.W. 87
• Parties: POITEVENT et ux. v. SCARBOROUGH.
• Court: Texas Supreme Court

124 S.W. 87

POITEVENT et ux. v. SCARBOROUGH.

Supreme Court of Texas.

January 19, 1910.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by A. P. Scarborough against Junius Poitevent and wife. There was a judgment of the Court of Civil Appeals (117 S. W. 443) affirming a judgment for plaintiff, and defendants bring error. Reversed and remanded.

Hill & Hill, T. F. Meece, and S. H. German, for plaintiffs in error. F. Campbell, for defendant in error.

BROWN, J.

The defendant in error sued Poitevent and wife in the district court of Polk county, Tex., to recover of them a tract of land containing 109 acres, a part of the survey in the name of J. B. Win in said county. The land was described in the petition and judgment as follows: "Being a part of the J. B. Win league situated in Polk county, Texas, and described thus: Beginning on the N. E. line of the Thompson survey, where the N. W. line of the Win crosses the Thompson line. Thence N. 60° E. with the said W. line, 2,094 varas, to a stake on N. W. line of A. Viesca four league survey, pine 8 in. in dia. pine 4 in. in dia. and a post oak, all marked X. Thence B. 49° W. with said Thompson line, 616 varas, to the place of beginning. Containing 109 acres of land." In 1882 the plaintiffs in error made to Scarborough a deed by which they conveyed to him all of the land which they then owned in the Viesca and Win surveys in Polk county. The grantors at that time owned the land sued for. That deed was never recorded and had been lost at the time of the trial. In 1892 Scarborough desired to borrow money upon the land conveyed to him by Poitevent and wife, but it was objected that the description in the deed was not satisfactory. A new deed was made, by which Poitevent and wife conveyed to Scarborough two distinct tracts of land, one containing 333 acres, and the other 851 acres. The land in controversy was not embraced in that deed. Plaintiffs in error claim that the land sued for was not embraced in the first deed, and that the second deed was accepted in lieu of the first. The second deed made by Poitevent and wife to Scarborough contained the following clause, which followed the description given of the two tracts: "These lands being the same lands sold to said A. B. Scarborough on the 2d of March, 1881, and described in said deed dated March 2d, 1881, and delivered to said Scarborough, conveying said lands to him. This deed being made to give a more full and complete description of the said land." It was also recited in that deed that the consideration for the conveyance was the payment of the purchase-money notes mentioned in the first deed. The Court of Civil Appeals finds as follows: "There was evidence sufficient to show that in fact the purpose of the second deed was, as alleged by appellee, solely to give a more full and specific description of the two tracts on which he wished to procure a loan, the loan company objecting to the description given in the first deed of the said two tracts, and that it was not the intention that the title already conveyed to the tract in controversy should be affected by this second deed." The plaintiff recovered judgment in the court below, in which the land was described as given above.

It does not appear from the record that the general demurrer offered by the defendants below to the plaintiff's third amended petition was presented to the court, or acted upon in any way. Therefore the question of the sufficiency of the petition as pleading is not before us for consideration.

In the motion for a new trial in the district court, one of the grounds set up was that the petition and judgment did not contain sufficient description by which the land could be identified; therefore the judgment was void. In determining the validity of the judgment, the same rule of construction is applicable that would apply if it were a deed. Mansell v. Castles, 93 Tex. 414, 55 S. W. 559. The rule for construction of deeds is: That, where there is an evident mistake in the calls, the court must, if practicable, find and correct the error, so as to give effect to the deed. There is a manifest mistake in this call, "Thence B. 49° W.," which cannot be correct. It must either be, "Thence N.," or "Thence S." "B." does not indicate any course. The land to be surveyed is a part of the Win survey, and no part of that survey could lie north of its northwest line. If the...