Mitchell v. Ireland

Bonner, Associate Justice. There is no appearance for appellees, John Ireland et al., and appellants present in argument but two grounds for the reversal of the judgment below—that the description of the land in the levy and sheriff’s deed is too vague and uncertain; and that the sale, having been made after return day of the execution, is a nullity. 1. The record does not disclose that Clinton E. DeWitt had any other interest in the land than that of his distributive share in the proceeds after it was sold; or that a sale of his interest in the land would convey more than an equitable title to this distributive share. The description in the deed from Clinton E. DeWitt to Eh Mitchell is itself quite vague. It describes the land sold as an undivided one-fourth of six hundred acres, when there were in fact eight hundred and seventy acres. There is no further description of the six hundred acres, than that it is part of thirty-three hundred and sixty-five acres granted to Sarah DeWitt, of which she died seized. This deed, however, declares it to be all Clinton E. DeWitt’s interest in his mother’s estate, and covenants to make further deed with more perfect description when a survey shall have been made. The levy and sheriff’s deed describes it as follows': “A certain tract or parcel of land, being one-fourth of six hundred acres of land situated on the west bank of Guadalupe river in Guadalupe county, between the towns of Seguin and New Braunfels. The said six hundred acres is a part of a tract of three thousand three hundred and sixty-five acres, granted by the government to Sarah DeWitt, and from the estate of Sarah DeWitt to Clinton E. DeWitt, the said one-fourth of six hundred acres being the distributive share of Clinton E. DeWitt, and transferred by him to Eh Mitchell. Said land was levied upon as the property of Eh Mitchell to satisfy said judgment.” Reference is made to the deed from Clinton E. DeWitt [306] to Eli Mitchell, but less indulgence should be shown in favor of descriptions in compulsory sales under judicial process than in private sales between individuals. Wooters et al. v. Arledge (decided at the present term); Norris v. Hunt, 51 Tex., 615. Considering the. very vague description of the land itself, and the character of the interest which might be subject to levy and sale, whether in the land or its proceeds, we think the description in the levy and sheriff’s deed too vague and indefinite under all the facts and circumstances of this case, and particularly when the sale was for such a grossly inadequate price, to demand affirmative relief from a court of equity. 2. If the defendants below have no other title than that derived through sale made under execution after return day thereof, then such title, as has been expressly decided by this court, is a nullity, and would confer no right. Hester v. Duprey, 46 Tex., 625; Young v. Smith, 23 Tex., 600; Pasch. Dig., art. 3775. Although other objections to the validity of the sale were presented on the trial below, the objection that it was made after return day of the execution, seems to have been made for the first time in this court. The” proper practice would require that it should be made in the court below, so that the presiding judge may have the opportunity to pass upon it, and the opposite party to answer it, or supply, if he can, the defect by other testimony. It, however, raises the question, not of irregularity only, but of nullity patent upon the record, and we are not prepared to say that it should not be considered by us, though presented for the first time in this court. Reversed and remanded. [Opinion delivered January 11, 1881.]