Beze v. Calvert

KEY, Associate Justice. This is an action of trespass to try title, commenced May 14, 1885, by Priscilla Calvert, Mattie Shelby, Alfred Shelby, and Mary Watkins, against Victor Beze, John Twohig, Angel Martinez, and Benito Lopez. The plaintiffs’ petition described the land sued for as follows: “Two thousand acres of land in Wilson County, Texas, bounded and described as follows, to-wit: Beginning at the lower corner of the Arocha eight leagues grant, at the mouth of the Pajaritos Creek; thence up said creek with its meanders, and with the southeast boundary line of said survey, 2200 varas to a stake set on said line for the northwest corner of- Hernandez survey; thence with the back line of Hernandez survey south 61° east 2460 varas to a stake; thence south 50° west 4850 varas to the San Antonio River; thence up said river with its meanders to the beginning.” The defendants Lopez and Beze filed pleas of not guilty and five and ten years statutes of limitations. Defendant Martinez disclaimed, and before trial plaintiffs dismissed as to defendant Twohig. Mary 1ST. Cortez, Rusu de Cortez, Jennie Davis Cortez, Amelia Laplace, Josephine Summars, Alice Laplace, Clemente (Jortez, John Carr, Emma Carr, Clara Carr, Maria Carr, and Maud Evite Kunneman intervened, and claimed the land as the heirs of Juan Cortez. October 12, 1888, J. B. Dibrell, administrator of the estate of the plaintiff Priscilla Calvert, made himself a party plaintiff. December 3, 1889, plaintiffs and intervenors dismissed as to defendant Lopez. The cause was tried, and upon a verdict of a jury to that effect, judgment was rendered for plaintiffs for the land, and for defendant Victor *209 Beze for $300, the value of his improvements. The latter and the intervenors have prosecuted appeals. The briefs of appellant and intervenors present a number of questions; but we decide the case on one point only. The deed executed by J. C. Morgan, as deputy sheriff of Bexar County, to Thomas M. Dennis, dated October 2, 1839, constitutes a link in the chain of title upon which the plaintiffs and the intervenors rest their claims to the land involved. The introduction of this deed in evidence was objected to by appellant Victor Beze, because of its failure to describe the land in controversy. Error is assigned upon the action of the court in overruling this objection. The deed describes the land which it purports to convey as follows: 6 £All the right, title, and claims of the said Mariano Rodiguez in and to the aforesaid interest in the old Hernandez tract, the said interest being one-half of that part and portion of the said tract which was transferred to the Manchacas; the said part and portion being on the east bank of the San Antonio River, below and adjoining the lands of the Arochas, commencing at Pajaritos Creek and running down, and known as the Manchaca tract, the interest and half of the same above sold and herein conveyed being the upper half.” The only preceding references in this instrument to the land it purports to convey are contained in the following extracts therefrom: “Which said execution was by the said J. C. Morgan, deputy sheriff as aforesaid, levied upon divers real properties (therebeing no goods or chattels found), to-wit: *' * * and an interest in a tract of land known as the old Hernandez tract on the San Antonio River,” and, “I, the aforesaid deputy sheriff and party of the first part in this indenture, did on the specified day offer the same, to-wit, the aforesaid interest in the Hernandez tract, for sale.” The rule is well settled, that less indulgence will be shown in favor of descriptions of property contained in deeds based on compulsory sales under judicial process than applies to descriptions given in deeds and other instruments voluntarily executed by the owner of the property. And in the former class of cases, if there is a patent ambiguity in the description of the land, it can not be aided by paroi evidence, and the deed is void. Wofford v. McKinna, 23 Texas, 36; Norris v. Hunt, 51 Texas, 615; Mitchell v. Ireland, 54 Texas, 301; Wooters v. Arledge, 54 Texas, 395. In our opinion, the description contained in the deed under consideration involves more than one patent ambiguity, which, considered in the aggregate, render it void for uncertainty. For instance, it does not name the county, state, or other political division wherein the land is situated; it does not give the name of the original survey of which the land con *210 veyed is a part, but merely calls it “ the old Hernandez tract;” it describes the land conveyed as “ one half ” of the portion of said Hernandez tract transferred to the Manchacas, without disclosing whether the “ one half” so conveyed isa segregated moiety of, cran undivided interest in, the whole of the Manchaca tract; it calls it one half the portion which was transferred to the Manchacas, but fails to show when or by whom it was transferred, and to how many and which of the Manchacas the transfer was made, and the quantity of land so transferred to them; and gives no other means of identifying the Manchaca land than the statement that it is on the east bank of the San Antonio River, below and adjoining the lands of the Arochas, commencing at Pajaritos Creek and running down, and known as the Manchaca tract. And the final clause, “ the interest and half of the same above sold and herein conveyed, being the upper half,” is equally as uncertain. If “ the interest” constitutes the upper half, it is difficult to perceive how ‘' half of the same ’ ’ can also be the upper half. And the word “upper” may mean up the river, up the creek, or the natural ascent of the land. The plaintiffs and intervenors having failed to show any title in either of them to the land in controversy, and for which they are suing, the judgment of the District Court will be reversed, and judgment here rendered, that they take nothing by their suit and pay all costs of both courts. Reversed and rendered. Delivered January 11, 1893.