Harris v. Shafer , 86 Tex. 314 ( 1893 )

Defendants in error have filed a motion for rehearing in this cause, upon the following grounds:

"1. Because the question of the alleged insufficiency of description contained in the administrator's deed, the report of sale, and the decree of confirmation, was not raised or urged in the trial court, and was not presented to the Court of Civil Appeals in the motion for rehearing filed therein.

"2. Because said objection was not assigned or urged by the plaintiff in error in his application to this court for a writ of error, and in the specification of grounds upon which he relied to reverse the judgment of the Court of Civil Appeals.

"3. Because the description contained in the deed, when read in connection with the description of the league and labor set out in the record, and the description of the land desired to be sold contained in the application for sale, and the description set forth in report of sale and in the order of confirmation, is sufficiently definite to enable the 1800 acres to be identified without recourse to parol evidence.

"4. Because if the description contained in the record be not sufficient to enable the court, from the record alone, to identify the land, still the same is sufficient, when aided by competent parol evidence; and the defendants in error, in view of the fact that no such objection as the insufficiency of description was properly urged before and brought to the attention of the trial court or the Court of Civil Appeals or this court, should be accorded another trial in the court below and allowed the opportunity of aiding, as they can, by parol evidence, the description contained in the record."

Counsel are mistaken in the statement that the question of the sufficiency of the description in the deed was not raised in the Court of Civil Appeals nor in this court, and in the statement contained in the argument that the objection was raised for the first time by this court. If that were correct, the motion for a rehearing would be granted, for this court will only consider questions which were presented to the Court of Civil Appeals and are presented to this court by the application for a writ of error.

In the District Court the judge tried the case without a jury, and filed conclusions of fact and of law. The conclusions of fact embraced the description of the land as sold and deeded to Herndon; in the conclusions of law this insufficiency of description was not noticed, but judgment was given for Shafer. If the judgment was placed on the wrong ground, as a matter of law plaintiff in error, in whose favor it was rendered, would not be expected to ask a new trial and set aside the judgment in order to correct the conclusions of law filed by the court. There was no opportunity for Shafer to present the question in the District Court.

Annie P. Harris et al. appealed to the Supreme Court, and the case was transferred to the Court of Civil Appeals, which reversed the judgment of the District Court and remanded the case. Shafer filed his motion for a rehearing in the Court of Civil Appeals, and among others assigned the following grounds of error:

"3. The court erred in holding that an administrator can delegate his authority to another person, and make a sale of realty belonging to the estate of an intestate, and as such agent to make and return a report thereof, and upon the confirmation of the same by the Probate Court, such sale is not absolutely void, but is conclusive in a collateral attack.

"4. The court erred in holding that the sale of the realty by the agent of the administrator and the confirmation of such sale by the Probate Court passed the legal title to the land to Herndon."

By the third assignment the proposition was presented that an administrator could not delegate his authority to another to sell lands of the estate, and that the confirmation of such sale made by the agent would not give validity to the sale. By the fourth was presented the proposition that the sale made by the agent and confirmed by the court did not pass legal title to the purchaser, Herndon.

Counsel for plaintiff in error, Shafer, understood that the fourth assignment presented the insufficiency of the description, and discussed the point in his argument before the Court of Civil Appeals on the motion for a rehearing, which argument was filed in this court. The learned counsel for the defendant so understood it, for they presented to this court an argument on the question of the sale by the agent, and replied to the argument of opposing counsel made in the Court of Civil Appeals and in this court as to the sufficiency of the description, by saying simply, "The land in the orders and decrees of the court ordering and confirming the sale and in the deed to Herndon is sufficiently described." This was brief, but to the point, and shows that counsel then understood that the insufficiency of the description was before this court.

The counsel for the defendant in error asks that we look to the order of sale to aid the description in the order of confirmation and the description in the deed. If any light could be thrown upon the matter, we would do so, as it is a matter undisputed and not embraced in the findings of fact filed by the Court of Civil Appeals. But when we look to that order we find that the sale was ordered to be made of land on the "upper line;" the administrator, in disregard of the order, sold it out of the "upper part" of the survey. This would raise the serious question as to whether or not the sale made contrary to the order of the court would not be void. Moreover, the order of sale, if included in the matter of description, would make the description still more indefinite, because then it would not be known whether it was to be taken on the "upper line" or out of the "upper part" of the survey. The upper line is not the upper part necessarily, nor probably so, if it refers to the line which touches the bayou highest up on that stream. Upper part would not mean the upper line as above defined, but it might be at a different side or end of the survey; so that to refer to the order of sale does not aid the description.

Counsel cite Swisher v. Grumbles, 18 Tex. 164, as authority for the meaning of the word upper. In that case the survey fronted on the river, with parallel lines running back therefrom. The "upper half" of a league was sold, and was described thus: "The said upper half of said league, to include half of the front of said league on the river and run back for quantity; the lower line of said upper half running back from the river parallel to the upper line of said league, so as to include the whole upper half except 200 acres to be taken out of the back end of said upper half." The land is said to front on the river, and the lines are expressed to run from the river back; the words "upper" and "lower" are necessarily used with reference to the flow of the river.

It is not necessary for us to determine whether or not the defect in description might have been aided by extraneous evidence. It is sufficient to say that no such evidence was offered in the District Court, and the affidavits filed here can not be considered by this court.

It is insisted that the judgment should be reversed and the cause remanded to give the defendants in error an opportunity to introduce evidence to identify the land. We believe that the judgment of the District Court was rightly rendered for Shafer, and can not reverse a correct judgment in order to give the losing party an opportunity to produce evidence which was not offered in the first place, especially when they claim no interest in their own right. This court can set aside judgments of inferior courts only when they are wrong, and never when they are right under the law and evidence as introduced, unless some error has been committed in excluding proper evidence offered in that court.

The motion for rehearing is overruled.

Delivered December 21, 1893.