Steinbeck v. Stone

Bonner, Associate Justice. It is contended by defendant in error that there is no sufficient statement of facts in this, case, because the same was signed by the presiding judge only, and it does not appear that there had been any disagreement of counsel. It has been decided by this court, that in such cases it will be presumed that the contingency happened which, under the statute, authorized the judge presiding to make out the statement alone. Darcy v. Turner, 46 Tex., 30. It is assigned as error that the court erred in overruling the demurrer of the defendant. The propositions under this assignment are: First. The exhibit to the petition, to which reference is made for description of the land, does not identify or describe any particular tract of land, and hence the petition is insufficient in law. Second. The deeds referred to in the exhibit to the petition were not pleaded with sufficient certainty to allow the introduction of them as evidence. The description of the land referred to is as follows: “It being and lying situated in McLennan county, state of Texas, being the west portion of the original Gill place, or all of that land that was deeded to W. Scott by Mrs. S. H. Gill, January 9, 1871, said deed filed for record January 18, 1871, and recorded in McLennan county deed book N, pp. 690,691, January 21, 1871, except so much of said tract, to wit: 177 acres that were deeded to R. F. Scott, of Harrison county, Texas, [386] as shown by deed from W. Scott to said R. F. Scott; and for a more particular description of the land hereby conveyed to said Steinbeck, reference is here made to the two deeds herein mentioned, and also to deed from W. Scott to B. D. Scott, all of ivhich are recorded in the clerk’s office of McLennan county.” In Norris v. Hunt, 51 Tex., 614, it is said that the true rule deduced from the authorities as to certainty in the description of land is, that it should be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty. Tested by this rule we think the description in this case sufficient. The county in which the land is situated and the name of the tract are given, and three recorded deeds are referred to for more particular certainty. Berry v. Wright, 14 Tex., 270; Early v. Sterrett, 18 Tex., 116; Kingston v. Pickins, 46 Tex., 99; Ragsdale v. Robinson, 48 Tex., 379; Wilson v. Smith, 50 Tex., 365. The other error assigned is, that the court erred in decreeing a foreclosure of the lien on the land mentioned in plaintiff’s petition for the following reasons: First. Because it does not appear that the note sued on was given for the land mentioned in the petition. Second. Because the land mentioned in the petition and the deed offered in evidence to sustain the same is too vague and indefinite, and describes no particular tract of land. with such certainty as that an officer with an order of sale following said allegation and evidence, or a purchaser thereunder, could find said tract of land. The second proposition has been disposed of above. As to the first, it is sufficient to say that the note offered in evidence corresponded with that described in the petition and recited in the deed, and this was prima facie evidence that it was the same which was given for the land. Affirmed. [Opinion delivered May 28, 1880.]