Stark v. Ratcliff

Mr. Justice Mulkey delivered the opinion of the Court: On the 11th day of January, 1878, Simeon Stark, the ap-' pellant, for the expressed consideration of $5760, conveyed, by general warranty deed, to Moses Ratcliff, the appellee, twelve hundred acres of land in Wichita county, Texas. On the 15th of October, 1881, one E. A. Gerard brought an action in the District Court of Cooke county, Texas, against Ratcliff and others, for the recovery of .this land. Under the provisions of the local law of Texas, Stark was notified, as warrantor of the title, to appear and defend, and upon satisfactory proof of the service of such notice the court entered a formal order in the cause making him a party defendant to the suit. Stark, however, failed to appear, and such proceedings were had in the cause that Gerard recovered possession of the premises, and Ratcliff was evicted therefrom. The latter thereupon brought the present action against Stark to recover damages for an alleged breach of the covenants in his deed to Ratcliff. There was a trial of the cause upon the merits in the circuit "court of Edgar county, resulting in a judgment for plaintiff for $5940, which was subsequently reduced by a remittitur to $5555.88, and the judgment, thus reduced, was affirmed by the-Appellate Court for the Third District. By the present appeal we are asked to review the judgment of the Appellate Court. It is claimed by appellant the circuit court made a number of erroneous rulings on the trial with respect to the admission of evidence, for which the Appellate Court should have reversed the judgment. Whether this claim is well founded or not presents the only question for determination. The land in question is described in the declaration as follows: “Twelve hundred and eighty acres (3 280) of land in Wichita, on the waters of Gilbert creek, and described as follows: beginning at a stake in the south-west corner of survey No. 1, made for the B; B. B. & G. R. R. Co., and 950 vers east from the north-west corner of a survey made in the name of L. Wells, thence west 2688 varas to a rock marked X, thence north 2688 varas to a rock marked — , thence east 2688 varas to a rock marked X, thence south to the beginning, in the county of Wichita, and State of Texas. ” Upon offering appellant’s deed in evidence, it was objected the land described in the deed is not the same that is mentioned and set forth in the declaration, — or, in other words, that there is a variance between the allegations and proofs; but the court overruled the objection and admitted the deed in evidence, and this is assigned for‘error. Upon comparing the two descriptions of the land it will be.found the only ground for this objection is, that the description in the deed contains, immediately after the words “Gilbert creek,” the additional words': “Patented to W. W. Purinton on the 7th day of November, 187S — Patent No. 404, volume No. 8. ” These additional words clearly afforded no ground for excluding the deed. The question before the court was whether the deed offered in evidence tended to prove the issue. The declaration gives a good description of the land, and so far as it goes it is in exact accord with the description contained in the deed, and the evidence offered therefore clearly supported the declaration. - The additional descriptive words in the deed are not inconsistent, or incompatible with the description contained in the declaration, and we are aware of .no principle which requires a pleading, in every case when describing an instrument or object, to specify all the means by which it might properly be identified. In such case the requirements of good pleading will be fully met if the marks or means of identification specified distinguish such instrument or object with reasonable certainty. That was done here. The gist of the action in this case is the breach of the covenants in the deed. Whether the land to which the covenants relate is as fully described in the declaration as it might have been, or even was in appellant’s deed, is a matter of no consequence, provided the declaration shows, with reasonable certainty, it is the same land to which the covenants relate, — and, as just stated, we think it does this. The point is also made that the court erred in admitting in evidence, over the objections of appellant, the record of the suit by Gerard, against Ratcliff, in the District Court of Texas, for the recovery of this land. This objection is also based in part upon an alleged variance between the descrip^ tion of the land in that proceeding and the one given of it in this. The supposed variance is of the'same character of the one we have just been considering, and what we have said with respect to that is equally applicable to this, so that further notice of this branch of the objection need not be taken. The admission of the record, however, is resisted mainly on the ground the District Court had no jurisdiction of the subject matter of the suit, and hence it is claimed the whole proceeding is a nullity, and the record of it is consequently inadmissible as an instrument of evidence for the purpose offered. By an express provision of the constitution of Texas, the District Court is given original jurisdiction in all suits for the trial of title to land. (Art. 5, sec. 8.) The suit in question was one of that character, and it consequently follows the court did have a general jurisdiction over the subject matter of the suit, and the judgment rendered therein can not therefore be treated as absolutely void. It is true, while this general jurisdiction existed under the constitution, there was a statute requiring suits for the recovery-of land to be brought in the county where the land lay; yet this was matter of defence, merely. We understand the rule to be, that if a local action is brought against one in the wrong county, and the court in which the action is brought has a general jurisdiction in that class of cases, the defendant must plead to the jurisdiction, or otherwise take advantage of the irregularity, in the court where the action is brought. He will not be permitted, after having remained silent and permitted judgment to go against him, to call in question its validity for the first time in a mere collateral proceeding, as is sought to be done here. The rule as here stated we understand to be fully recognized by the courts of Texas, to whose laws we must look in determining the validity of this judgment. Ryan v. Jackson, 11 Texas, 391; Morris v. Runnells, 12 id. 177; Stark et ux. v. Burr et al. 56 id. 130. Perceiving no substantial error of law in the record, and the facts having been settled conclusively against the appellant, the judgment will be affirmed. Judgment affirmed.