Smith v. Chatham , 14 Tex. 322 ( 1855 )

Wheeler, J.

The assignment of error mainly relied on, and the only one which it is deemed material to consider, brings in question the propriety of excluding the evidence of the Sheriff’s levy and deed, offered by the plaintiff as evidence of his title.

It is not questioned, that the land, embraced in the survey claimed by the plaintiff, is correctly described in his amended petition, filed on the 18th of December, 1851. But it is insisted, that the description in the levy and deed is variant from that contained in the petition ; and that on account of the variance, the evidence was rightly excluded. If the present were properly a question of variance, the authorities and principles invoked would, perhaps, be controlling in favor of the appellee. But it is not to be viewed in the light of a variance between the description of a cause of action, set out in the petition, and an instrument offered as containing the evidence of the cause of action. It is not analogous to a suit upon a bond, note, or other instrument constituting the evidence of the cause of action. In those cases, it is very true, that any material variance between the description of the instrument in the petition, and the instrument itself, will authorize its rejection when offered in evidence. But the present is not such a case. The petition does not describe, or assume to describe the levy and deed; if it did, the objection to their admissibility on account of the variance would have been well taken. But it is not these, but the land claimed by the plaintiff, which the petition describes; and the question is one of identity. It is, whether the evidence offered by the plaintiff to establish a title in himself to the thing sued for, sufficiently identifies that thing, to afford evidence of the plaintiff’s right to it • not whether the same descriptive words are used in the petition and the deed, but whether both refer to the same thing; in one word, whether the evidence identifies the land sued for. We think it does. There is evidently a mistake in one of the descriptive calls in the levy and deed ; that is, as to the point of beginning; calling to begin at the “ south-west corner of David Strickland’s survey, running west with D. Strickland’s line.” &c. This is demonstrably impossible, and consequently a mistake ; it being impossible to commence at a west corner of a survey and run west with a line of the survey. To run west with the survey, the point of beginning must, of course, be east of the western corner or extremity of the survey; and hence, to commence as designated by this call in the levy and deed, the first step would be a departure from the direction of the deed. The point of beginning or line to be pursued must, therefore, be an error. That it is the former, and that it is the south-east instead of the south-west corner of the Strickland survey, at which the plaintiff’s survey, as designated in the levy and deed, actually commences, seem to be matters sufficiently susceptible of being shown conclusively, by reference to the description and identity of the land, afforded by the other calls.

Counsel do not differ as to the law applicable to this question ; but only as to its application. It is ingenuously, and very justly admitted by counsel for the appellee, that “ there axe numerous cases in which it has been decided, that, “ where the body of the land is sufficiently described to identify “it beyond doubt, and control, with sufficient certainty, errone- “ ous particular descriptions, the latter may be rejected, to give “ effect to the former and uphold the deed.” Such unquestionably is the well settled law ; and such, we think, is this case. The description identified, beyond doubt, the land actually conveyed to the plaintiff by the Sheriff’s deed ; and the Court therefore erred in excluding the evidence.

We do not think proper, in the present attitude of the case, to discuss other questions, respecting the merits of the plaintiff’s title. It might not he fair to assume that the other evidence in the case would have been the same, if the evidence in question had not been excluded; or that the same will be the-evidence upon another trial. Any opinions we might entertain upon the case, as now presented, might be formed upon a too narrow, or partial view of the facts; and might be erroneous,, or unjust, considered in reference to the real facts of the case, as they shall ultimately be disclosed in evidence, upon another-trial. Our opinion upon the admissibility of the plaintiff’s-evidence of title, will require that the judgment be reversed, and the cause remanded for a new trial; when the merits of the case can be fully ascertained, and the rights of the parties definitely settled.

Reversed and remanded.