Pomeroy v. Pearce

• Decision Date: 03 February 1926
• Docket Number: (No. 7487.)
• Parties: POMEROY et al. v. PEARCE.
• Court: Texas Court of Appeals

Page 315

281 S.W. 315

POMEROY et al. v. PEARCE.

(No. 7487.)

Court of Civil Appeals of Texas. San Antonio.

February 3, 1926.

Rehearing Denied March 3, 1926.

Appeal from District Court, Bexar County; R. W. B. Terrell, Judge.

Action by Harry H. Pomeroy and others against Myron A. Pearce. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. Y. McFarland and Don A. Bliss, both of San Antonio, for appellants.

Leonard Brown, of San Antonio, for appellee.

SMITH, J.

The controlling question presented in this appeal is that of the sufficiency of the description of land contained in a judgment foreclosing a tax lien, and in the sheriff's deed conveying the property to a purchaser at the foreclosure sale made in pursuance of the judgment. The description was identical in the judgment, order of sale, officer's return showing levy, sheriff's deed, and writ of possession, and was as follows:

"Abstract 790, survey 293, original grantee, W. H. Van Riper, 7-75 acres of land, more or less; abstract 67, survey 368, original grantee, W. E. A. K. Bellerman, 80 acres of land, more or less — all lying and being in the county of Bexar, state of Texas."

The cause was tried by the court without a jury. No statement of the evidence accompanies the record, but the trial judge filed his findings and conclusions, from which we will state such facts as are deemed pertinent to this inquiry.

The original suit for taxes was brought by the state against Elizabeth J. Pomeroy, Almyra Hall Lemon, and William H. Lemon, and their unknown heirs, and in the resulting judgment the interest of those parties in the land was foreclosed and ordered sold. It is shown that the parties sued were the owners of said land as heirs at law of Elizabeth Pomeroy and Almyra Hall Lemon, under two deeds, one from Sam A. Knight and wife to H. H. Hall, and the other from W. H. Van Riper to H. H. Hall, which deeds have been of record in Bexar county for the past 46 years. In these deeds the two tracts involved were specifically and correctly described by metes and bounds. The two tracts were inclosed together under one fence, and were known as the "Pomeroy-Lemon land." The defendants named in the tax suit owned no land in Bexar county other than these two tracts. At the time of the tax sale the land was in possession of appellants' tenant, who attended the sale and bid for the property, which was sold to appellee. The regularity of the foreclosure proceedings and sale is not challenged by appellants, whose only complaint is of the sufficiency of the description of the land in the judgment, writs, and sheriff's deed to divest title out of appellants and vest it in appellee as the purchaser at the foreclosure sale.

The trial judge found as a fact that the description given in the judgment and tax deed, aided by extrinsic evidence upon the trial, was sufficient to indentify the land sold with that claimed by appellants. As appellants did not bring up a statement of facts, we must assume that this finding by the trial judge was supported by the evidence, and the judgment might well be affirmed upon that assumption, unless other findings made by the trial judge expressly or by necessary implication conflict with and overcome that finding. We have concluded that this alternative does not occur in the case, and that the judgment must therefore be affirmed. However, in deference to appellants' vigorous and earnest presentation of their case as their counsel see it, we deem it not inappropriate to consider and dispose of some of the points made.

The trial court found, among other facts, that before appellee took possession of the land in controversy he entered into an agreement with representatives of appellants to accept double the amount expended by appellee at the tax sale. In their first, second, and third propositions of law appellants complain of this finding, contending that it is immaterial, irrelevant, and without support in the pleadings. The object of this finding is not made apparent in the record. It does not seem to be pertinent to any phase of the case made. The trial judge appears to have so considered it, treating it as surplusage. Obviously it had no influence upon the court's conclusions or judgment, which turned wholly upon the issue of the sufficiency of the description of the land. If the finding constituted technical error, it was wholly negative in effect, and was harmless to appellants, whose complaint thereat will be accordingly disregarded.

Appellants' fourth, fifth, sixth, and seventh propositions relate, in one way or another, to the question of the sufficiency of the description of the land in dispute, and their eighth, ninth, and tenth propositions are dependent for consideration upon favorable action upon their previous propositions. We recur, then, to the controlling issue.

It is contended by appellants, in effect, that, in determining the sufficiency of the description of land conveyed in a sheriff's deed, resort may not be had to extrinsic matters not specifically referred to in the deed, assuming, as is the case here, that the description in the deed is the same as that contained in the judgment, order of sale, officer's return, and writ of possession; in other words, that for the purpose of identifying the land sought to be conveyed resort may be had only to the description contained in the face of the deed, and the extrinsic matters therein specifically referred to.

We have concluded that the rule stated, and insisted upon by appellants, is too strict, and is not supported by current authority in this state. We think, rather, that with reference to deeds made in pursuance of judicial sales the demand of the law is met when the description is sufficiently definite to enable bidders to ascertain without unreasonable trouble the precise tract of land to be sold, or is not so general in its terms as to deter bidders from making such inquiry as would necessarily have led to the definite ascertainment of the premises to be sold. If the description is such on its face as to enable a prospective bidder to definitely locate the land through an examination of the public records, it is sufficient, even though there may be no specific reference, in the judgment or writs or deed, to the particular instruments of record. Hermann v. Likens, 39 S. W. 282, 90 Tex. 448; Eustis v. City of Henrietta, 39 S. W. 567, 90 Tex. 468; MacManus v. Orkney, 40 S. W. 715, 91 Tex. 27; Slaughter v. City of Dallas, 107 S. W. 48, 101 Tex. 315; Taffinder v. Merrell, 65 S. W. 177, 95 Tex. 95, 93 Am. St. Rep. 814; Smith v. Crosby, 23 S. W. 10, 86 Tex. 15, 40 Am. St. Rep. 818; Wilson v. Smith, 50 Tex. 365.

In their insistence upon the strict rule contended for by them in this case, appellants rely upon the decisions in Wofford v. McKinna, 23 Tex. 36, 76 Am. Dec. 53; Norris v. Hunt, 51 Tex. 609; Wooters v. Arledge, 54 Tex. 395; Brown v. Chambers, 63 Tex. 131; Pfeiffer v. Lindsay, 1 S. W. 264, 66 Tex. 123; Allday v. Whitaker, 1 S. W. 794, 66 Tex. 669; Murray v. Land, 27 Tex. 90; Mitchell v. Ireland, 54 Tex. 301; Harris v. Shafer, 23 S. W. 979, 24 S. W. 263, 86 Tex. 314; Kellner v. Ramdohr (Tex. Civ. App.) 207 S. W. 169. It is true that in some of those cases, notably Norris v. Hunt and Brown v. Chambers, the Supreme Court used language which favored the rule urged by appellants, that the description in a sheriff's deed cannot be aided by reference to extrinsic matters not specifically pointed out or referred to in the deed. But in a later case the same court, in an elaborate opinion by Chief Justice Gaines, referred to these intimations of the court in the two outstanding cases mentioned, and expressly disapproved the doctrine favored in those cases and urged here by appellants. Hermann v. Likens, 39 S. W. 282, 90 Tex. 448.

So the most that may be said of the authorities relied upon by appellants is that in some of those cases, in none of which are the facts deemed analogous to those here presented, there were intimations, and in some of them direct assertions, that in determining the sufficiency of descriptions of land purchased at judicial sales the rule in this state was to exclude from consideration all matters extrinsic of the judgment and sheriff's deed, unless such matters are specifically referred to in such instruments. Whether or not it was the intention in any of those cases to lay down that intimation or declaration of...