Wooters v. Arledge

Gould, Associate Justice. Arledge claims the hundred acres of land, to recover which he brought this suit, under a constable’s sale and deed; and if that sale and deed did not divest the title out of the defendant in execution, Pridgen, and vest it in the purchaser and grantee in the constable’s sale, the judgment is erroneous. The objection to the sale and deed is, that there was no sufficient description of the land. The description of the land as levied on, sold and conveyed, is: “A tract or parcel of land containing one hmidred acres, known as the Neill McLean homestead, in Houston county, state of Texas, lying and situate about sixteen miles northwest from the town of- Crockett, it being the balance of said homestead tract that has not been conveyed by the said B. F. Pridgen by deed executed previous to the said 12th day of May, 1876, conveying the same in fee simple, or by sheriff’s deed made prior to said day; the said tract of one hundred acres including the dwelling and outhouses and other improvements on said tract.” The evidence is, that what is known as the Neill McLean homestead embraces four hundred acres, and that no part of that tract had ever been cut off or set apart for a homestead; that after Pridgen became the owner by deed from McLean and wife, none of it had been sold under execution or otherwise, except that in 18J4 he had executed the mort [397] gage on the whole, under which appellant’s claim originated. Immediately around and including the dwelling and outhouses, there were about seventy-five acres enclosed and in cultivation. There was other land in cultivation, but not in connection with the dwelling. It is manifest that the description is insufficient to designate the particular hundred acres sold by the officer. The sale purports to be, not of the seventy-five acres covered by the improvements, and of twenty-five acres somewhere else on the tract, but was a sale of a tract of one hundred acres, with no effort to fix, or means of fixing, its locality, further than that it was to include the improvements. In this respect the case differs from Wilson v. Smith, 50 Tex., 366, which is the only case of an execution sale cited by appellee. Counsel cite cases of sales and conveyances betwéen individuals. If this were such a case, it is obvious that the deed would at least pass the title to the seventy-five acres improved. But a different principle controls execution sales, where the authority of the officer is limited by the la,w from which it is derived. In such sales the rule is that the land sold must be sufficiently designated. Jackson v. DeLancy, 13 Johns., 552; Jackson v. Rosevelt, 13 Johns., 102; Mason v. White, 11 Barb., 190; Evans v. Ashley, 8 Mo., 185; Rector v. Hartt, id., 459; Freeman on Executions, secs. 281-330. Accordingly, it is held that a sale by the sheriff of an undesignated part of a large tract of land, there being no means of distinguishing the portion sold from the residue, is void. DeLouch v. The State Bank, 27 Ala., 437; Fenwick v. Floyd, 1 Harris & Gill, 174; Marmaduke v. Tenant’s Heirs, 4 B. Mon., 210; Freeman on Executions, sec. 281, p. 465, and references; see, also, Wofford v. McKinna, 23 Tex., 44, 45. In the case before us, the sale was of an undesignated one hundred acres out of the four hundred acre tract, and being such a sale as the officer was without author [398] ity to make, the sale and deed were inoperative to pass the title. Howard v. North, 5 Tex., 315. The judgment is reversed, and as the case was tried by the court, judgment will be here rendered for the defendant for his costs, and that the plaintiff take nothing by his suit. Reversed and rendered. [Opinion delivered February 4, 1881.]