Walter Connally & Co. v. Continental State Bank of Big Sandy

■HODGES, J. In April, 1915, the appellant filed this suit against the Continental State Bank and W. F. Collins, seeking to recover the title and possession of a certain tract of land in Upshur county and some gin machinery located thereon. All the property is ■described more in detail in the plaintiff’s ■petition. Collins filed no answer to this suit. The Continental State Bank answered by a general demurrer, general and special denials, and a plea of not guilty. The evidence offered by the appellant show- • ed that on June 4, 1912, it sold to W. F. Collins two gin stands and some gin machinery, in payment for which Collins gave four ■promissory notes aggregating $1,400, and at the same time executed a mortgage for the ■purpose of securing the payment of those notes. The mortgage contained the following description of the property: “Two 60-saw right-hand Pratt huller gins; .two 60-saw class C feeders; one 120-saw right-hand steel lint fule [flue] system; one 120<-saw battery condenser; two iron dust flues .for condenser; one revolving double box 5" screw power press complete with regular equipment, including steam tramper and fittings; one 2/60-saw elevator system complete from wagon to fan, including fan and fan countershaft; one seed blowing elevator complete; one 11x15 Skinner engine complete with all regular fixtures, including foundation bolt and steam and -exhaust pipe; one 42x12 horizontal tubular boiler complete with regular fixtures including inspirator and whistle; also all belting, shafting and pulleys and other appurtenances necessary .to complete the above outfit; also the ginhouse in which the above machinery is located and operated, and the lot or parcel of ground upon which said house and machinery is located. For further and better description of gin lot reference is here made to the records of Upshur county.” Following this description in the mortgage was the stipulation that: “The machinery was located and to be located at - in Upshur county, Texas, and to remain personalty wherever located.” Upon the failure of Collins to pay the notes at maturity the appellant instituted a suit in the district court of Smith county against Collins and the Continental State Bank, in which it recovered a judgment for the amount duei, and a foreclosure of the mortgage. The appellee bank was made a party to that suit upon the ground that it claimed some kind of an interest in or lien upon the property involved. In due course of time an order of sale was issued upon that judgment, and all of the property, both the machinery and the ginhouse and lot, were levied upon and sold by the sheriff and purchased by the appellant. The sheriff thereafter made a proper conveyance to appellant of the same. The description in the judgment and the sheriff’s deed followed that in the mortgage, and was no more definite. Some time after this sale of the property and its purchase by ■the appellant, the Continental State Bank foreclosed a mortgage held by it upon the same property, taken subsequent to that of the appellant. It seems that another sale was made under that judgment of foreclosure,- at which the property was purchased and taken possession of by the bank. The evidence further tended to show that the officers of the bank had actual notice of the appellant’s prior mortgage and that it was on the machinery purchased by Collins from appellant in 1912. Collins testified that at the time he executed the mortgage to appellant he had a verbal contract to purchase the gin lot from its former owner; that the tract consisted of one-half an acre of land, which he was then using as a gin lot and on which he intended to locate this particular machinery; that it was so located and operated, and was there when seized and sold by the sheriff in obedience to the judgment rendered in favor of the appellant. When the mortgage executed by Collins to the appellant, and the judgment rendered in favor of the appellant against Collins, were offered in evidence, counsel for the appellee Continental State Bank .objected to their introduction, upon the ground that they were void because of the insufficiency of the description of the property. The court refused at that time to sustain the objection, and permitted the evidence to go to the jury. At the conclusion of the testimony, however, he gave a peremptory instruction to the jury to return a verdict for the defendants. The *312 giving of that charge is the principal' error urged on this appeal. We must assume, in the present state of the record, that the peremptory instruction complained of was prompted by a conclusion on the part of the trial court that the description in the judgment and mortgage was too indefinite to constitute sufficient evidence to sustain a recovery by the appellant. The sufficiency of a description in instruments of this character depends largely upon circumstances and the relative' situation ■ of the parties to the controversy. A description which might be insufficient to constitute record notice of a prior conveyance or mortgage might be sufficient as between parties to such instruments and those having actual knowledge of the identity of the property intended to be mortgaged or conveyed. While the description here under consideration is somewhat vague, it cannot be said that it is so indefinite as to render void the instruments in which it appears. The following cases appear to sustain that conclusion: Blythe v. Crump, 28 Tex. Civ. App. 327, 66 S. W. 885; Ranck v. Howard Sansom Co., 3 Tex. Civ. App. 507, 22 S. W. 773; Watt v. Parlin & Orendorf Co., 44 Tex. Civ. App. 439, 98 S. W. 428; Ames Iron Works v. Chinn, 15 Tex. Civ. App. 88, 38 S. W. 247; Harless v. Jester, 97 S. W. 138; Panhandle National Bank v. Emery, 78 Tex. 498, 15 S. W. 23; Johnson v. Brown, 65 S. W. 485; Scaling v. First National Bank, 39 Tex. Civ. App. 154, 87 S. W. 715. ■ In consideration of the sufficiency of the description of the gin machinery, let us suppose that the appellant had sold to Collins property corresponding to that description, and had taken a mortgage to secure the payment of the purchase money, in which the description was no more specific than| is here given. Could Collins successfully resist a foreclosure, upon the ground that the description was too indefinite? Could he say that no property had been mortgaged? We think not. For as between the parties to that contract such details as were necessary to identify the property might be easily supplied by parol evidence. The same liberality would be justified in dealing with subsequent purchasers and mortgagees who had actual knowledge of the identity of the property contemplated in the mortgage.' Parol evidence may be resorted to to supply details not in conflict with a written general description. In Giddings v. Day, 84 Tex. 605, 19 S. W. 682, Chief Justice Stayton quoted as follows from a former decision of the Supreme Court: “The construction of a deed, being matter of law, is for the court If, therefore, the land intended to be conveyed by it be so inaccurately described that it appears, on an inspection of the deed, the identity of the land is altogether uncertain, and cannot be determined, the court should pronounce it void; but when the uncertainty does not appear upon the face of the .deed, but arises from extraneous facts, as in other cases of latent ambiguity, parol evidence is admissible to explain or remove it. In such case, the deed should not be excluded from the jury, but should go to them along with parol evidence, to explain or remove such ambiguity; and the identity of the land is then a mixed question of law and fact, to be determined by the jury under the instructions of the court.” Continuing, the court sáid: “This rule is as applicable to deeds made to consummate sales made by sheriffs under executions as to deeds made by private persons.” In Wilson v. Smith, 50 Tex. 365, the court, after discussing the sufficiency of a description, said: “Apparently the court held the defendant’s title insufficient because of uncertainty of description of the .land sold in the sheriff’s deed and in the levy. If so, we are of opinion that the court erred. Certainly the deed cannot be pronounced void upon mere inspection, for it cannot be said that it appears from the face of the deed that the land conveyed cannot be identified by the aid of extrinsic evidence.” ■ The rule as to personal property is no less liberal than that which applies to descriptions of real estate. There is nothing which appears upon the face of the mortgage- or the judgment in this instance- which indicates that a more definite description of the personal property could have been given. Nor is there anything appearing upon the face of the mortgage or judgment which indicates that the property cannot be distinguished from the property of a like kind. The evidence was uncontradicted upon the trial that this particular machinery intended to be mortgaged and corresponding to the general description given in the written evidence was in fact identified; that it was the same that was purchased by Collins from the appellant, and was situated upon a gin lot formerly belonging to Collins and then in the possession of parties holding under the appellee bank. The testimony further shows that the appel-lee bank knew that this property had been purchased by Collins and mortgaged by him to the appellant at the time it took its mortgage, and also when it foreclosed the lien under which it claimed possession of the property. The evidence, we.think, was sufficient to-support a finding in favor of the appellant as to the personalty, and for that reason alone the court committed reversible error in giving the general peremptory instruction. The next inquiry, then, is as to the sufficiency of the description of the real estate. This is described as follows: “Also the ginhouse in which the above machinery is located and operated, and the lot or parcel of ground upon which said ginhouse and machinery are located. For further and better description of gin lot reference is here made to the records of Upshur county.” If the gin machinery could be identified and its location established, that in itself would he sufficient to locate and identify the lot upon which the mortgage lien was to operate. The reference to the deed records of Upshur county indicates that the property was situated in that county. While this was insuf *313 ficient to furnish’ a description, it is enough to show the situs of the property. Collins testified that he had previously contracted for a lot consisting of a half acre of land, upon which he owned and operated a gin, and upon which this particular machinery was to he located at the time of its purchase, and upon which it was actually located and operated thereafter. There is no confusion as to the quantity of land or as to its exact situation. The description in the mortgage and judgment made plain the following facts: That the land intended to be incumbered was a gin lot owned by Collins, situated in Upshur county, on which was located the gin machinery bought by Collins from the appellant. As between Collins and the appellant, the former could not say that such a description was void for uncertainty. Brice v. Sheffield, 118 Ga. 128, 44 S. E. 843; Mann et al. v. State, 116 Ind. 383, 19 N. E. 181; 1 Jones on Mortgages, §§ 65 and 66; 3 Devlin on Deeds, § 1012. In the last-cited authority it is said: “And generally the rule may be stated to be that the deed will be sustained if it is possible from the whole description to ascertain and identify the land intended to be conveyed.” Mr. Jones in his work on Mortgages, as cited above, says: “When the objection is merely to the indefiniteness of the description it does not lie with the mortgagor to say that he conveyed the property by a description so loose or indefinite that no title could pass upon a foreclosure sale of the property.” Eor the reasons stated, the judgment of the district court will be reversed, and the cause remanded. Footnotes [1] <g^s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes