Welles v. Arno Co-Operative Irr. Co.

HIGGINS, J. This is an action in trespass to try title brought by Geo. D. Welles, trustee, to recover the title to and possession of certain property hereinafter described. On May 15, 1907, judgment was rendered against the Dixie Irrigation Company for taxes, with foreclosure of lien on — • “all that certain irrigation canal situated about 25 miles north of Pecos City in said Reeves county, Texas, and known as Dixie Irrigation Company’s canal, and all rights of way for said canal through any and all lands on which it may pass be the same acquired by purchase, donation, condemnation, limitation or otherwise, also all laterals, ditches, dams, flumes, head-gates, water rights and franchises of said company, and being a part of said Dixie Irrigation Company’s system or plant.” Order of sale thereon was issued, levy made, and the property sold to appellant, to whom deed was made. In the order of sale, levy, and deed, and in the petition herein, the description follows that given in the judgment. Appellant claims title under these tax foreclosure proceedings. Welles prosecutes this appeal from a judgment in favor of defendant. The description contained in the foreclosure proceedings is a general one, and the property is incapable of identification by inspection alone of the judgment, order of sale, levy, and sheriff’s deed. It is perhaps sufficiently accurate to enable parties to identify it by the use of such means as would be admissible in a court of justice for that purpose. Under the earlier decisions of our courts, the description would be regarded as wholly insufficient, but the rule that more definite description is necessary to the efficacy of a sheriff’s deed than to a voluntary conveyance has long since been discarded. There is no distinction in this respect be [986] tween voluntary and involuntary conveyances ; that is certain which may be made certain, and extrinsic evidence is admissible to identify the premises conveyed by sheriff’s deed as well as by voluntary conveyance. Hermann v. Likens, 90 Tex. 448, 89 S. W. 282; Smith v. Crosby, 86 Tex. 15, 23 S. W. 10, 40 Am. St. Rep. 818; McManus v. Corkney, 91 Tex. 27, 40 S. W. 715; Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48; McDonald v. Hanks, 52 Tex. Civ. App. 140, 113 S. W. 604; Gallup v. Flood, 46 Tex. Civ. App. 644, 103 S. W. 426. A judgment in favor of plaintiff, describing the property as it is described in the petition in this case and as described in the foreclosure proceedings, would not identify the same with any degree of certainty whatever. A sheriff, undertaking by writ of possession to place plaintiff in possession of same, of necessity would have to make of himself judge and jury and determine what particular realty and water rights he would deliver to the plaintiff. In the absence of extrinsic evidence identifying the property described in the tax foreclosure proceedings, plaintiff has failed to establish his title to the property for which he sues. There is no such evidence and in the absence thereof, no judgment could properly have been rendered except in defendant’s favor, and a peremptory instruction to that effect should have been given. None of the assignments of error in any wise relate to or affect this controlling feature of the ease, and they are therefore overruled. Affirmed.