Permian Oil Co. v. Smith , 129 Tex. 413 ( 1937 )

For a statement of this case I refer generally to the opinion of the Court of Civil Appeals, 47 S.W.2d 500, and to the opinion of Special Associate Justice FOUTS on the motion for rehearing, (supra, 446) 107 S.W.2d 564. In this Court the case was originally heard by the Commission of Appeals, and the judgment recommended in the opinion of the Commission (73 S.W.2d 490) was entered by the Supreme Court. I was unable to agree to the correctness of that opinion and judgment, and so notified my then associates, reserving the right to file a dissenting opinion on motion for rehearing, after a more exhaustive examination of the questions involved. Argument was invited on this motion, as stated in the opinion of Special Associate Justice FOUTS. Upon the argument counsel were informed from the Bench that I had not approved the opinion previously rendered nor the decree entered thereon, but had withheld my final conclusion until the motion for rehearing came on for consideration. I could not approve the main conclusion of Special Associate Justice FOUTS, nor agree to the reversal of the case, but, being unable at the time to prepare an opinion expressing my views, I requested that a notation of my intention to do so later be appended to that opinion, and this was done. This duty I shall now attempt to perform. My views are well expressed in the opinion of the Court of Civil Appeals (47 S.W.2d 500), and I shall not elaborate on certain questions there discussed.

For the purpose of presenting the locus of this controversy I here reproduce a map taken from one of the arguments filed on behalf of defendants in error, which in turn was based on certain maps in evidence. The map is here presented only for the purpose of showing the approximate relative locations of Surveys 34 and 35, Block 194, and Section 103, the land here involved.

[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]

Mrs. M. A. Smith, the widow of John Monroe, and the other defendants in error claim title to this land under a grant from the State. The Permian Oil Company claims title from the heirs of Hickox, but the Hickox title in turn depends upon a certain judgment in Cause No. 854, John Monroe v. Hickox, entered by the district court of Pecos County on March 4, 1911. John Monroe brought that suit, as owner of Section 103, against Hickox, who owned Sections 34 and 35, shown on the map, and a"take nothing" judgment was entered. That judgment is the primary subject of this opinion. The judgment reads as follows:

"In the District Court of Pecos County, Texas. February Term 1911, John Monroe vs. T. F. Hickox.

"On the 28th day of February A.D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March, A.D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, John Monroe, take nothing by his suit, against the defendant, T. F. Hickox, and that the defendant, T. F. Hickox, go hence without day and recover against the plaintiff, John Monroe, all costs of suit, for which execution will issue. To which judgment of the court the plaintiff, John Monroe, in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff's request and good cause being shown he is hereby given sixty days after the adjournment of this court within which to file his state[ment] of facts herein.

"O. K. W. C. Douglas, Judge."

This judgment was rendered on March 4, 1911, and on the same day the court filed his findings of fact and conclusions of law, which read:

"John Monroe vs. T. F. Hickox, No. 854, in District Court, Pecos County, Texas. February Term, 1911.

"I, W. C. Douglas, Judge of the District Court of Pecos County, Texas, have this day prepared and do hereby order filed in this cause, the following findings of fact and conclusions of law, to-wit:

"FINDINGS OF FACT. "1. Block C-4, G. C. S. F. Ry. Co., is composed of sixty-four surveys. The field notes show that they were all made by H. C. Barton, Deputy Surveyor of Pecos County, between the 5th and 20th days of October, 1881. According to the field notes of Survey No. 4, of this block, the northwest corner was marked as follows: 'Pile of pebbles for the N.E. corner of Survey No. 3, this block from which Capstone Mountain bears south 1500 varas,' the northeast corner is described as 'Stone mound from which Capstone Mountain bears S. 19 E. and another Capstone Mountain bears N. 70 E.,' corners answering to this description were found on the ground located relatively as shown in the sketch of surveyor, W. T. Hope.

"2. Block Z, Texas Central Railway Company, is composed of fifty-four surveys. They were made by F. Schadowsky, between the 4th and 8th days of November, 1882. The beginning calls of this block tie on to Block C-4. There is no testimony locating this block on the ground.

"3. Block 194, G. C. S. F. Ry. Company, is composed of one hundred surveys, the record showing they were made by I. W. Durrell, Deputy Surveyor of Pecos County, Texas, between the 17th and 31st days of May, 1883. It appears that he made fifteen surveys on each of the first six days and ten surveys on the seventh day. The beginning calls of this block tie on to Block Z, G. C. S. F. Railway, but there is no testimony locating on the ground any of the original land marks called for in the field notes.

"3. Block No. 178, Texas Central Railway Company, is composed of thirty-six surveys, the record showing they were made by I. W. Durrell, Deputy Surveyor of Pecos County. The first eighteen of these surveys appear to have been made on November 21, 1882, and the last eighteen made on November 22, 1882. The beginning call starts at river survey at No. 543, in the name of H. G. N. Railway Company. None of the land marks called for by the field notes of this block were located on the ground by any of the testimony.

"4. The river surveys shown on the map of surveyor W. T. Hope were made in the year 1876 by Jacob Kuechler, Deputy Surveyor of Pecos County, Survey 4, of Block C-4, G. C. S. F. Railway Company, located on the ground from objects found corresponding to the calls for its northeast and northwest corners relatively as shown on Hope's map. Survey 71, I. G. N. Railway on the map of the surveyor, W. T. Hope, with its northwest corner marked by stone mound; there is no call in the field notes for a stone mound at this point. Survey No. 61, I. G. N. Railway was located on the ground relatively as shown on Hope's map by course and distance from the northwest corner of Survey 71, established as aforesaid, and its location verified by a call of its field notes for road on a mesa. Survey No. 3, Runnels County school land, was located on the ground by course and distance based on Surveys 71 and 61, which were located on the ground as aforesaid. All of these locations were made on the ground by surveyor W. T. Hope and were based on actual runnings as shown by the red lines delineated on this map. The balance of the surveys shown on the map of surveyor Hope were platted in by him according to their calls for course and distance based on his actual work on the ground shown by the red lines, and with relation to the aforesaid land marks.

"5. By beginning at the northeast corner of Survey 4, Block C-4, G. C. S. F. Railway Company, as found on the ground, and running by course and distance and thereby locating Surveys 103 and 104, Texas Central Railway; these two surveys would lie adjoining and immediately south of Survey 3, Runnels County school land, and would not conflict with Surveys 34 and 35, Texas Central Railway.

"6. By constructing Block 194, G. C. S. F. Railway, based on the calls for the river surveys, as located on the ground, surveys 34 and 35, G. C. S. F. Railway Company, Block 194 would lie adjoining and immediately south of Survey No. 3, Runnels County school land and be in total conflict with Surveys 103 and 104.

"7. Surveys 103 and 104, being the land sued for by plaintiff, are Junior surveys to Surveys 34 and 35.

"8. I am unable to follow the footsteps of the original surveyor in establishing Block 194, G. C. S. F. Ry., either in the original location of [or] the corrected surveys, and I am unable to ascertain the true intention of the original surveyor as to locating this block on the ground.

"9. I am unable from the testimony in evidence to ascertainthe true location on the ground of Surveys Nos. 103, 104, 34and 35, above referred to.

"10. I find that Block 194, G. C. S. F. Railway, was originally located by an office survey.

"11. I find that the calls of Block 194 to tie on to Block Zand its calls to tie on to the river surveys are repugnant toeach other and inconsistent, and I am unable to determine whichof these calls should be regarded as a mistake of the surveyor.

"12. I find that the plaintiff is the legal owner and holder of the fee simple title to Survey No. 103, Texas Central Railway, and that he holds Survey No. 104, under a contract of purchase from the State of Texas, in accordance with the school land laws, and that he has made his proof of occupancy thereon as required by law, and that his said sale is in good standing.

"13. Defendant is the holder and entitled to the possession of Survey No. 34, under a contract of purchase from the State of Texas, in accordance with the school land laws, and his sale is in good standing.

"14. The said Hope map is hereby referred to and made a part hereof.

"CONCLUSIONS OF LAW. "1. The burden of proof is upon the plaintiff to establish the location of the two tracts of land sued for upon the ground, and to show that there is no conflict between said surveys and Surveys Numbers 34 and 35, and said Surveys Numbers 34 and 35 being senior surveys.

"2. It is presumed that the work of an official surveyor was actually done on the ground, but the amount of work he certified to having done within a given time, the character of the work as called for by the field notes, and the lack of evidence found on the ground, discrepances in distances between objects called for, and the like, may be sufficient to rebut said presumption.

"3. Where there are two theories upon which a survey which is not fixed to the ground by any of its calls can be constructed, and one theory shows a conflict between a senior and a junior survey, and the other theory shows no conflict between them and the evidence, aided by the presumptions of law, furnishes no method for following the footsteps of the original surveyor or for arriving at the intent and purpose of the original surveyor, the presumption of the law will be resolved in favor of the senior survey that there is a conflict, the owner of the junior survey being the plaintiff.

"4. Having found as a fact that the location of SurveysNumbers 34 and 35 and 103 and 104 cannot be located upon theground from the testimony in evidence, and that there is atotal conflict between them based on certain calls and noconflict based on other calls, which theories areirreconcilable, and the true theory unascertainable from thetestimony, I conclude that the plaintiff should take naught bythis suit and that the defendant should recover his costsherein.

"W. C. Douglas, Judge District Court, 63rd Judicial District."

Endorsed: "No. 854. John Monroe vs. T. F. Hickox. Findings of fact and conclusions of law. Filed March 4, 1911. Frank Rooney, Dist. Clk., Pecos Co., Tex., by H. L. Winfield, Dy." (All italics mine.)

Monroe's suit was in the statutory form of trespass to try title, and Hickox's answer was a plea of "not guilty." It was in reality a boundary suit, the parties thinking at the time that there was a conflict between the south boundary lines of sections 103 and 104 and the north boundary lines of sections 34 and 35. Of course, the Yates survey, 34 1/2 shown on the map, had not then been established by the State. In fact, the south boundary line of surveys 103 and 104 is shown as conterminous with the north boundary line of surveys 34 and 35 by the General Land Office maps of 1896 and 1907. Both these maps are in the record as plaintiff's (Permian Oil Co.'s) exhibits. It was not then understood or known that in truth and fact there was a vacancy between the surveys about one-half mile wide, now known as the Yates No. 34 1/2 survey. Monroe's suit, while filed in the statutory form of trespass to try title, was in reality a boundary suit, and was tried as such. I quite agree with Special Associate Justice FOUTS when he says in the majority opinion, "measured by the familiar rule CauseNo. 854 as tried was a boundary suit." Being a boundary suit, the place of controversy was the conterminous line between surveys 103 and 104 on the one hand and 34 and 35 on the other. In this boundary controversy Monroe lost — did not prove his case, and the court adjudged that he "take nothing." We are now asked to decree that by these words "take nothing" Monroe lost and Hickox acquired title to survey 103, shown on the map, located approximately a half mile north of the line of controversy, and between which and sections 34 and 35 there then intervened a vacancy, upon which is now located the Yates survey No. 34 1/2. In other words, we are asked to say that the district court by its "take nothing" decree in a boundary suit awarded title to Hickox to a tract of land a half mile away,which Hickox did not own, and which Monroe did own. (See Fact Findings 12 and 13, quoted above.) That is stretching a "takenothing" judgment a little too far for my legalistic credulty to accept. I decline to believe that the trial judge intended to render, or that interpreted under established rules he did render, an India-rubber decree, that would stretch from the point of actual controversy across an intervening section of land, and enfold in its elastic embrace the premises here involved.

My immediate purpose is to determine the meaning and effect of the "take nothing" judgment. Under our system of jurisprudence a judgment is to be tested by its substance rather than by its form. Form is of slight importance, and no particular phraseology is required to make a judgment valid. A judgment should, of course, be appropriate to the proceedings in which it is rendered, show affirmatively that the merits of the case have been passed upon, and award the judicial consequences which the law attaches to the ascertained facts. 25 Tex. Jur., p. 446, Sec. 77. Among the requisites of a valid judgment is the universally approved one that where property is the subject of the decree it should be described with certainty, or furnish means of its identification. 25 Tex. Jur., p. 542, Sec. 81. A judgment must also be sufficiently definite and certain to define and protect the rights of all litigants, and must not be in the alternative, or be conditional or contingent. 25 Tex. Jur., pp. 456, 457, Secs. 84, 85. The rules of construction as applied to judgments generally is well stated in Texas Jurisprudence as follows:

"In accordance with familiar principles a judgment is construed as it is written. If plain and unambiguous, it is not to be interpreted in the light of subsequent or prior statements or acts of the court evincing judicial intention when the judgment was rendered. Nor can a judgment be sustained or explained by reference to the understanding of the parties, even though entered pursuant to stipulation. It must be read as an entirety, and if, taken as a whole and construed according to well-known rules, it is unambiguous, no room is left for interpretation."

However, if a judgment is ambiguous, familiar rules of construction may be applied:

"If the judgment is ambiguous, application is made of familiar rules of construction, such as that effect will be given to reasonable intendments, that a writing will be made to harmonize with the facts, that the circumstances will be considered, and that a common-sense construction will be put onlanguage as a whole." (Italics mine.)

In construing an ambiguous judgment "it is always proper tolook to the entire record, the pleadings, the issues made inthe case, the testimony offered in support of the pleadings,the charge, the fact or facts found by the court, and otherproceedings leading up to the judgment." 25 Tex. Jur., pp. 461, 462, Sec. 89, and the many cases cited in the notes. Not only is it true that a judgment must conform to and be supported by the pleadings and the evidence, but in a case tried to the court "it must conform to and be supported by the findings of fact and conclusions of law." 25 Tex. Jur., p. 484, Sec. 103. Not only is it true that a judgment must conform to the verdict (25 Tex. Jur., p. 484, Sec. 104), but it must conform to theconclusions of fact found by the trial judge when separatelystated. R. S., Arts. 2209, 2211; 25 Tex. Jur., p. 488, Sec. 106, and cases cited in the notes. As to this rule the statute cited expressly declares:

"Where a special verdict is rendered, or the conclusions offact found by the judge are separately stated, the court shallrender judgment thereon unless set aside or a new trial isgranted." (Italics mine.)

The rules stated above have a direct bearing on the proper interpretation of the judgment here involved, and are as applicable here as if the case were one of direct appeal from the decree before us for interpretation.

We are compelled to determine the meaning and effect of the judgment in Cause 854, previously described, in order to ascertain whether or not it is res adjudicata on the question of title to the land involved in the instant case. In interpreting that judgment we should assume that the trial judge who entered it did his duty, and followed the rules of law applicable to the case; that he intended to render a valid judgment, one which would not be set aside on appeal, one appropriate to the proceeding, and which awarded the judicial consequences which the law attached to the ascertained facts; that he intended to make his decree certain, and not conditional or contingent; and that he intended to follow the statute (Art. 2209), which was but the embodiment of the rule as generally applied by courts, and conform his decree to the"conclusions of fact" found by him and "separately stated," found, and filed on the very day the judgment was rendered. 25 Tex. Jur., p. 460, Sec. 87; Austin v. Canaway, 283 S.W. 189; Freeman on Judgments, (5th ed.) Vol. 1, p. 132, Sec. 76; 34 C. J., p. 501, Sec. 794, p. 504, Sec. 797. As a leading authority states: "When the language is susceptible of two interpretations, from one of which it follows that the law has been correctly applied to the facts and from the other that there has been an incorrect application, that construction will be adopted which upholds the judgment." 25 Tex. Jur., pp. 459, 460, Sec. 87; Gough v. Jones, 212 S.W. 943; 34 C. J., p. 501, Sec. 794.

I shall now for the moment assume that the judgment before us (in Cause No. 854, previously quoted) is ambiguous, and determine whether or not the judgment roll, embracing in this instance the findings of fact and conclusions of law of the trial judge, previously quoted, were admissible in evidence in this suit. The Permian Oil Co. depends for its title upon that decree, and says that by force of that judgment their predecessor in title, Hickox, became the owner of the land here involved, and that it is res adjudicata of the issue of title of the defendants in error, who claim under John Monroe, who brought and lost the suit in which the judgment was entered. Of course, if the judgment is not ambiguous, nothing is admissible to explain it. It explains itself. 25 Tex. Jur., p. 459, Sec. 86, supra. Nor can the judgment roll or anything else be used to contradict an unambiguous decree. 25 Tex. Jur., p. 853, Sec. 328. There are exceptions to the rules just stated, but they are not here involved. 25 Tex. Jur., p. 862, Sec. 331. But once it isdetermined that a judgment is ambiguous, the whole record maybe examined to ascertain its meaning, and it will not be givena more extensive effect than is warranted by the record. 25 Tex. Jur., p. 461, Sec. 89; Freeman on Judgments, (5th ed.) Vol. 1, p. 134, Sec. 76; 34 C. J., p. 501, Sec. 794, p. 504, Sec. 797, p. 505, Sec. 801; Black on Judgments, (2d ed.) Vol. 1, p. 179, Sec. 123; Durden v. Roland, 269 S.W. 274; Dunlap v. Southerlin, 63 Tex. 38; Campbell v. Schrock, 50 S.W.2d 788; Houston Oil Co. v. Village Mills, 241 S.W. 122, 129; Poitevent v. Scarborough, 103 Tex. 111; Lipsits v. Bank, 293 S.W. 536; Barnes v. Hobson, 250 S.W. 238; Oklahoma v. Texas, 256 U.S. 70, 88; Last Chance M. Co. v. T. M. Co., 157 U.S. 685, 690; Barton v. Chrestman, 275 S.W. 401; Campbell v. Laughlin, 280 S.W. 189.

In Texas Jurisprudence (Sec. 89, supra) the rule is stated as follows:

"In construing an ambiguous judgment it is always proper for the court to look to the entire record (including the citation), the pleadings, the issues made in the case, the testimony offered in support of pleadings, the charge, the factor facts found by the court, and other proceedings leading up to the judgment." (Italics mine.)

In Freeman on Judgments (Sec. 77) cited above, the text reads:

"If the entry of a judgment is so obscure as not to express the final determination with sufficient accuracy, reference may be had to the pleadings and to the entire record. If, with the light thrown upon it by them, its obscurity is dispelled, and its intended signification made apparent, it will be upheld and carried into effect. In case of doubt regarding the signification of a judgment, or of any part thereof, the whole record may be examined for the purpose of removing the doubt. One part of the judgment may be modified or explained by another part; and uncertainties in the judgment may become certain under the light cast upon them by the pleadings or other parts of the record. This is well illustrated in those cases in which the description of property in the judgment is supplemented and made certain in this manner. And the judgment will not be given a more extensive effect in this respect than is warranted by the record."

Black on Judgments (Sec. 123 cited above) states:

"The rule for the construction of ambiguous judgments is clearly stated by the Supreme Court of Kansas in the following language: 'Wherever the entry of a judgment is so obscure as not to clearly express the exact determination of the court, reference may be had to the pleadings and the other proceedings; and if, with the light thus thrown upon such entry, its obscurity is dispelled and its intended signification made apparent, the judgment will be upheld and carried into effect in the same manner as though its meaning and intent were made clear and manifest by its own terms.' "

The texts cited from 34 Corpus Juris declare:

"The legal operation and effect of a judgment must be ascertained by a construction and interpretation of it. This presents a question of law for the court. Judgments must be construed as a whole, and so as to give effect to every word and part. The entire judgment roll may be looked to for the purpose of interpretation. Necessary legal implications are included although not expressed in terms, but the adjudication does not extend beyond what the language used fairly warrants. The legal effect, rather than the mere language used, governs.In cases of ambiguity or doubt, the entire record may beexamined and considered. Judgments are to have a reasonableintendment. Where a judgment is susceptible of twointerpretations, that one will be adopted which renders it themore reasonable, effective and conclusive, and which makes thejudgment harmonize with the facts and law of the case and besuch as ought to have been rendered." (Sec. 794, italics mine.)

"Where the language of a judgment is ambiguous or its meaning doubtful, reference may be had to the pleadings in the case, and the judgment interpreted in the light which they throw upon it. But if the meaning of the judgment is clear and plain on its face, it can not be changed, extended, or restricted by anything contained in the pleadings." (Sec. 796.)

"A judgment should be interpreted with reference to theverdict of the jury, and if possible so as to harmonize them.Like rules apply where the facts are found by the court orreferee." (Sec. 797, italics mine.)

Writing on "The Judgment as an Estoppel," FREEMAN in his work on Judgments, in part, says:

"To determine what was adjudicated in a prior action the record in that case may, of course, be considered. The judgment itself must be properly proved. But inasmuch as the mere judgment may not alone establish the jurisdiction of the court, or show what matters were determined, it is ordinarily necessary to prove the whole judgment-roll or record when a judgment is urged as an estoppel or bar. And even though it may not always be necessary, it is always proper to do so. But as to just what may be regarded as a part of the record for this purpose and what extrinsic matters may be proved or considered, there is no absolute or universal rule. However, it is quite generally agreed that the pleadings, instructions to the jury and the verdict, or the findings and conclusions, may be lookedto to determine what was adjudicated." (Italics mine.) Freeman on Judgments, (5th ed.) Vol. 2, Sec. 771.

The Texas authorities are consistent with the texts cited and quoted.

It is also quite elementary that when reference must be had to the record in interpreting an ambiguous judgment, thewhole record may be examined. As said in Black on Judgments, (2d ed.) Vol. 1, p. 181, Sec. 124:

"* * * and when a copy of the record of the judgment is required, for the purpose of bringing the case by appeal or writ of error into this court, or bringing suit upon it in another state, or as evidence under an issue of nul tiel record, or to establish a former adjudication of the samesubject-matter between the same parties, and indeed in all cases where it is essential to have a complete record of a judgment, the pleadings and process are an indispensable part of it. And the general rule is, that where the copy of a recordof a judgment is required, it must be of the whole record, sothat the court may determine the legal effect of the whole ofit, which may be quite different from that of a part." (Italics mine.)

Indeed, not only is it true that the whole record may be examined in interpreting an ambiguous judgment, but evidence outside the record, even parol, is admissible to show for what the judgment was recovered, "what was the real cause ofaction." 34 C. J., p. 506, Sec. 803; Labrie v. McKim,120 S.W. 1083; Cook v. Burnley, 45 Tex. 97; Russell v. Place,94 U.S. 606; Freeman v. McAninch, 87 Tex. 132, 135; Reast v. Donald,84 Tex. 648; Oldham v. McIver, 49 Tex. 556, 572.

Is the judgment before us (in Cause No. 854) ambiguous? That it is so is not open to discussion. You can not from the face of the judgment determine the nature of the cause of action, what was sued for, nor what was recovered, if anything; nor does it contain the description of any property or land. As it stands it is not only ambiguous, but absolutely meaningless. When you read it you know that Monroe sued Hickox and lost, but whether the suit was for land, personal injuries, foreclosure of a lien, etc., you can not determine from the face of the decree. You might infer from the names that it was not a suitfor divorce, and that is as definite a conclusion as the face of the judgment warrants. So it was, and is, necessary to examine the record to determine the nature of the cause of action, the description of the property involved, if any, and to ascertain the facts found by the trial court, in order that we may so interpret the decree in such a manner that it will award the judicial consequences of the ascertained facts. (Authorities supra.)

The majority opinion in this case says the judgment is not ambiguous, although it states: "It is true the description ofthe land and the nature of the cause of action do not appear inthe face of the judgment." (Italics mine.) The opinion then proceeds to hold, if I understand it correctly, that this is supplied "by the direct reference to the plaintiff's pleadings appearing in the face of the judgment." Then, declares the opinion, "By this reference in the judgment there is as effectively supplied the description of the land and cause of action disposed of as though the judgment had recited both in its face," citing Freeman on Judgments, (5th ed.) Vol. 1, Sec. 97; Martin v. Teal, 29 S.W. 691; and Ruby v. Von Valkenberg,72 Tex. 450. The language of the judgment to which the opinion makes reference, following recitation of appearance, is found in the following extract: "The pleadings were thereupon read,the evidence introduced, and argument of counsel made, and the court after hearing same," pronounced judgment, etc. This is a mere recital that the pleadings were read, and no more incorporated the description of the cause of action and of the land contained in the petition in the judgment than it did "the evidence introduced and argument of counsel made." Of course, the pleadings, like the balance of the record, could be considered in interpreting an ambiguous judgment, but to say that this bare recital that the pleadings were read so incorporates the pleadings in the decree as to relieve it, as it stood, of its ambiguous character, is a doctrine so novel and strange as to be, I believe, without precedent. Certainly the authorities cited in no manner support it. The text cited from Freeman on Judgments reads:

"In view of the principle that that is certain which is capable of being made certain, it is generally held that a reference to the pleadings or other parts of the record is sufficient if they contain an adequate description. If the property is sufficiently described in the declaration it is sufficient for the judgment to refer to it as the premises 'mentioned in the declaration.' But if the description referred to is itself uncertain, it can not aid the judgment, as where a writ is directed to issue to restore to plaintiff possession of the lands, or so much thereof as are not farther south than the boundary line described in the verdict, and the verdict merely designates such line as being seven and nine feet south of a certain hedge. A judgment for 'the tract of land described in the petition,' which in fact describes two tracts, is insufficient. But describing property as 'the property in controversy' may be sufficient." (Sec. 97.)

FREEMAN, as shown, has reference to decrees which refer to the pleadings specifically for descriptive purposes, as "the tract of land described in the petition," etc.

In Martin v. Teal the judgment in part was that "the wire fence enclosing survey 70, and in controversy," etc., and that the defendant recover possession of said "one mile or more of wire fence enclosing said survey and the subject matter of this controversy." All the Court of Civil Appeals held was that the judgment was sufficient "when it refers for such description to pleadings by which it can be made certain."

In Ruby v. Von Valkenberg a judgment rendered in 1847 was introduced in evidence, which decreed "that the property conveyed by plaintiff and wife by deed, of which plaintiff hasincorporated a copy into his petition and which is made a partof this decree." This Court simply held that under the law as it existed when the judgment was entered this was permissible.

The question here involved, viz., whether a bare recital that the pleadings were read in a district court case relieved a vague and meaningless judgment of its ambiguity to such an extent as forbids reference to the complete judgment-roll in its interpretation, was not involved nor determined by either of the authorities cited. The plain fact is that the plaintiffs in error are depending upon an ambiguous judgment, and the whole judgment roll record is admissible to determine its meaning, — not just a part of the record, the pleadings for example, — but the whole of it, "so that the court maydetermine the legal effect of the whole of it, which may bequite different from that of a part." (Black on Judgments, Sec. 124, supra.) However, if it be said that the bare recital in the judgment that the pleadings were read had the legal effect of incorporating within the judgment itself the entire petition in Cause No. 854 (which, as a matter of law, common sense, and common practice it does not), still the judgment would not be relieved of its ambiguous character, and resort must still be had to ascertain the character of suit in which the judgment was entered, and the effect to be given to the decree, as awarding the judicial consequences to the determined facts. The petition in form was one of statutory trespass to try title, and the answer consisted of a plea of "not guilty." Looking at the petition and answer alone, what sort of suit was it? The answer is that nobody can tell. It might, of course, be one to actually determine who possessed the title to the land described, but it might be for any one of a number of other purposes, viz.:

(1) It might be a boundary suit, to determine a boundary line between two adjacent surveys, for it has long been the law that such suits could be brought in form of trespass to try title; or

(2) it might be an action brought by a grantor to recover the land because of a breach of condition of a deed, as, for example, for failure to pay purchase money notes; or

(3) an action by a landlord who seeks to compel his tenant to vacate the premises upon expiration of a lease; or

(4) an action by an owner whose land has been appropriated for public use without compensation; or

(5) an action to attack the validity of process or sale under execution.

41 Tex. Jur., p. 458, Sec. 5; Weaver v. Vandervanter,84 Tex. 691; Kaufman v. Brown, 83 Tex. 41; Andrews v. Parker,48 Tex. 94; Garner v. C. R.I. G. R. Co., 10 S.W.2d 132; Spencer v. Rosenthal, 58 Tex. 4; Purinton v. Davis, 66 Tex. 455; Smith v. Cottingham, 49 S.W. 145; Curran v. T. L. Mtg. Co., 60 S.W. 466; Bull v. Beardon, 159 S.W. 1177.

It is obvious that since the judgment interpreted alone by the petition in this case does not disclose which one of the many actions which could be brought in the form of trespass to try title was in fact brought and tried, it is ambiguous as not disclosing the nature of the action, an important factor in determining the effectiveness of a plea of res adjudicata. Shall we say that when a vendor brings a trespass to try title suit against his vendee because the latter has defaulted in the payment of purchase money, and the court decrees that he "take nothing" in the judgment, without disclosing in the decree that he does this because in his fact findings he has found that the vendee has not defaulted in payment, that thereby the vendee has recovered the land and has his vendor's title, and that the balance of the record, including the findings of fact, may not be looked to to ascertain what was actually litigated? I think not, although that would be the certain result under the majority opinion in this case. Shall we say that when a landlord brings a trespass to try title suit against his tenant, and is defeated in fact because the tenancy is not up, that the tenant under a "take nothing" judgment would get his landlord's title, and that the record, including the fact findings, could not be examined to determine just what was litigated? I think not, and yet under the majority opinion in this case that would be the result. Many other illustrations of the result of an application of the doctrine of the majority opinion in this case could be given, but the above suffice to show the grave injustice of looking only to the "take nothing" decree and the pleadings as alone determining what has actually been litigated by a trespass to try title action. GREENLEAF says:

"When a former judgment is shown by way of bar, whether by pleading, or in evidence, it is competent for the plaintiff to reply, that it did not relate to the same property ortransaction in controversy in the action, to which it is set up in bar; and the question of identity, thus raised, is to be determined by the jury, upon the evidence adduced. And though the declaration in the former suit may be broad enough to include the subject-matter of the second action, yet if, upon the whole record, it remains doubtful whether the same subject-matter were actually passed upon, it seems that parol evidence may be received to show the truth. So, also, if the pleadings present several distinct propositions, and the evidence may be referred to either or to all with the same propriety, the judgment is not conclusive, but only prima facie evidence upon any one of the propositions, and evidence aliunde is admissible to rebut it." (Greenleaf on Evidence, (15th ed.) Vol. 1, Sec. 532.)

GREENLEAF adds in his notes:

"It is obvious that, to prove what was the point in issue in a previous action at common law, it is necessary to produce theentire record. Foot v. Glover, 4 Blackf. 313. And see Morris v. Keyes, 1 Hill 540; Glascock v. Hays, 4 Dana 59."

As I understand the majority opinion in this case, it disregards the difference between a trespass to try title suit which involves and determines title, and a trespass to try title suit which involves and determines boundary. After referring to the fact that formerly we permitted two suits for title and only one over boundary, though each might be brought in form of trespass to try title, and that from 1892, for forty years or more, this Court under the statute had jurisdiction over trespass to try title suits when they were in reality title suits, but had none over boundary suits, although brought in the form of trespass to try title, the opinion declares:

"We are unwilling to accept cases of either class as authority for the proposition that different causes of action are involved in trespass to try title suits brought in statutory form one of which turns on the fact of boundary and the other of which turns on some other evidentiary fact affecting title."

That quotation plainly shows that the majority opinion disregards the essential difference between a trespass to try title suit involving and determining title, and a trespass totry title suit involving and determining boundary. The rule thus announced, I believe, is without precedent and without authority, and the opinion, in so far as I am able to understand it, cites none.

For many years after the adoption of the common law and the Trespass to Try Title Statute in 1840, our statutes permitted two suits for the recovery of title to lands by the plaintiff, the second within a limited time after the first, although he lost the first one. Then, as now, these suits were to be in the form of trespass to try title. This Court, of course, following the statute, recognized that an adverse judgment in the first suit was not res adjudicata or a bar to the plaintiff's right to timely file and try the second suit. But this Court held that if the first suit, though in form of trespass to try title, was in reality a boundary suit, an adverse judgment wasres adjudicata and barred the second suit. Jones v. Andrews,72 Tex. 5, 12; Spence v. McGown, 53 Tex. 30; Bird v. Montgomery,34 Tex. 713; San Patricio v. Mattis, 58 Tex. 242.

In the case of Jones v. Andrews, just cited, the Court makes clear its recognition of the distinction between a suit involving and to determine title, and one involving and to determine boundary, approving the rule that where a suit thoughnominally to try title, was in fact to settle a disputed boundary, it was not a title suit.

It is well within the recollection of the Bar generally that from 1892 until a few years back the Courts of Civil Appeals had final jurisdiction over boundary suits, and this Court, though clothed with power to hear title suits, had no such authority over boundary suits, even though brought in form of trespass to try title. Wright v. Bell, 94 Tex. 577; Schiele v. Kimball, 194 S.W. 944; Cox v. Finks, 91 Tex. 318; Steward v. Coleman Co., 95 Tex. 445. So, for approximately an hundred years the jurisprudence of Texas has recognized a difference between title and boundary suits, even though each were brought in the statutory form of trespass to try title. I think it too late, without legislative action, to now say that we will no longer recognize the distinction and apply rules of law respectively applicable. Of course, it is true that in a boundary suit the defendant, like Bre'r Rabbit in the fable, can sit and say nothing, and compel the plaintiff to prove his title; but this does not make it a title suit — it still remains a boundary suit. Cox v. Finks, 91 Tex. 318, 320. The majority opinion in this case quite rightly says: "Measured by the familiar rule,Cause No. 854 as tried was a boundary suit." I am of the opinion that the "take nothing" judgment should be interpreted as a "take nothing" judgment would be interpreted in a boundary suit, and in harmony with the court's findings of fact and conclusions of law, instead of as if in a title suit, as the majority opinion holds. When we go to the record, and examine the court's findings of fact and conclusions of law, we find that in fact the court did not determine the question of boundary, because he was unable to locate the surveys whose conterminous lines were involved. He so stated in fact finding No. 9, quoted above. In No. 4 of his conclusions of law, quoted supra, the court stated his reasons for entering the "take nothing" judgment, as follows:

"4. Having found as a fact that the location of SurveysNumbers 34 and 35 and 103 and 104 cannot be located upon theground from the testimony in evidence, and that there is atotal conflict between them based on certain calls, and noconflict based on other calls, which theories areirreconcilable, and the true theory unascertainable from thetestimony, I conclude that the plaintiff should take naught bythis suit and that the defendant should recover his costsherein." (Italics mine.)

It is perfectly plain from this conclusion that the words "take nothing" as used in the judgment were not intended to award title to any land, — not even a disputed strip to Hickox. The judge said, "I conclude that the plaintiff shouldtake naught" by this suit because the allegedly conflicting surveys could not be located on the ground; in other words, the plaintiff should "take naught" simply because he had failed to make a case.

The words "take nothing" used in the judgment are not words defined by statute; nor are they defined in Words and Phrases and other similar works. They are to be interpreted in the same manner that other words are interpreted, — and here, as found in an ambiguous decree, must have their meaning determined in connection with the basis of that decree, viz., the findings of fact and conclusions of law of the trial court. That by their use, and by the judgment rendered, the court did not intend to award title to section 103 to Hickox is shown by his finding No. 12, quoted above, in which he said: "I find thatthe plaintiff [Monroe] is the legal owner and holder of the feesimple title to Survey 103," etc. It is also plain, I think, that by the judgment the court did not intend to fix or establish any boundary line. The judgment is ambiguous, and that interpretation is the only one consistent wih his findings of fact and conclusions of law to the effect that he could not locate on the ground the surveys involved or their conterminous boundaries.

The object and purpose of a suit to determine title and those of a boundary suit are plainly different, and require different types of judgment. The object of a trespass to try title suit to establish and determine title is, of course, to ascertain who has the superior title to the land; and a judgment which describes the land involved as it is described in the petition, either directly or by reference, is sufficient as to description, even though simply a copy of the field notes of the patent, — provided, of course, by it the land may be located. Freeman on Judgments, (5th ed.) Vol. 1, Sec. 96. The object and purpose of a boundary suit is to ascertain the boundary, and the judgment determines the location of the line on the ground and describes and identifies it. 41 Tex. Jur., pp. 680, 681, Sec. 173. And it is elementary that a decree which does not do so is void; and since a description which merely follows that of the patent settles nothing, but leaves the parties where they were when the suit began, the judgment is void. Converse v. Langshaw, 81 Tex. 275, and other authorities cited by Justice HIGGINS in Permian Oil Co. v. Smith, 47 S.W.2d 500, 507, et seq.

Bearing in mind these differences in the objects and purposes of suits to determine title and those to ascertain and fix boundaries, and the resultant differences in the descriptions which must characterize the judgments, it is plain that a "take nothing" decree in a boundary suit does not transfer title, because it does not establish and determine the boundary. Such was the effect given to a general judgment for the defendant in a previous boundary suit in the case of Wallis v. Wofford,26 S.W. 739, by Justice WILLIAMS, who afterward for many years graced the Supreme Bench of Texas. In the reported case a judgment for the defendant in the former suit was set up as a bar to the maintenance of the action. Justice WILLIAMS overruled the contention, saying:

"But, from the petition, it does not appear that any line was fixed. The judgment was simply for defendant, which means that plaintiff had not shown himself entitled to judgment for the land for which he sued. Whatever may be the effect of that judgment, it does not fix any boundary, and does not preclude appellant from asserting title to any land which, under or consistent with it, he may show himself to have."

In this connection, and without elaboration, I desire to state that I approve what Mr. Justice HIGGINS has said as to the invalidity of the judgment here involved, because of its failure, in the light of the record, to determine the boundary dispute. See Permian Oil Co. v. Smith, 47 S.W.2d , pp. 500, 507, et seq.

Thus far I have regarded the judgment here involved as one rendered in a boundary suit. If it be said, however, that it was in truth and in fact a suit for title (which it was not), still the result produced by proper observance of the rules of interpretation is the same, viz., that the "take nothing" judgment did not have the effect of awarding Monroe's title to Hickox. We are dealing with an ambiguous judgment — a meaningless one, until it is read in connection with the judgment roll. When we go to the judgment roll and examine the findings of fact and conclusions of law, it is at once apparent that the court did not intend to award the title to Survey 103 to Hickox, because he says, as I have shown, that Monroe owned that survey. An ambiguous judgment is to be interpreted in harmony with the findings and conclusions of the trial court, if this can be done. Authorities supra; R. S., Arts. 2209, 2211; 25 Tex. Jur., p. 488, Sec. 106. Even if it be said that the "take nothing" judgment here was rendered in a title suit, there is still another reason why it was not effective to transfer title from Monroe to Hickox. Assuming that the ordinary effect of a "take nothing" judgment is to transfer title to the defendant, it is plain, I think, that the rule has no application where the court deciding the case is unable to locate the land, and at the very time of the rendition of the judgment finds that it can not be located.

An action to try title is a proceeding in rem or of the nature of such a proceeding. 41 Tex. Jur., p. 678, Sec. 170. The title is transferred because of the court's jurisdiction of the land, and the decree operates, not in personam, by compelling the adverse party to execute a transfer, but in rem, upon the land and title to the land. If the title istransferred, the transfer is effected by the judgment itselfoperating upon the property within the jurisdiction of thecourt. "The foundation of jurisdiction is physical power" (McDonald v. Maybee, 243 U.S. 90, 91), that is, the power to seize a thing that actually exists, — and the court knowsexists, — and deliver into the possession of the party to whom has been adjudged rightful possession. A court is without jurisdiction to transfer by mere force of its judgment title to land which the court can not locate, and expressly finds that he can not locate; — indeed, in this case the court could not be certain of the existence of the land which the suit purported to involve. In truth, the court in his conclusion of law No. 4, heretofore quoted, said that he concluded that "the plaintiff [Monroe] should take naught," because the surveys involved could not be located. In the light of that conclusion, his "take nothing" judgment must be interpreted, and to say that by it he transferred title to Hickox, the defendant, is not only against sound reason, but would assume that the court deliberately entered a voidjudgment, — one he knew at the time was void, — for the reason that it is elementary that a decree must so describe the property awarded that it may be found and located on the ground. 41 Tex. Jur., p. 683, Sec. 175. If the court was unable to locate the land involved, as he concluded, and yet entered a judgment awarding it to Hickox, then we would be compelled to say he deliberately entered a void decree. The judgment is not to be interpreted in this manner if there is an interpretation which makes the judgment valid. Authorities supra; 25 Tex. Jur., p. 460, Sec. 87; Gough v. Jones, 212 S.W. 943. A proper interpretation of the judgment before us is that it had no purpose to transfer title, and that the "take nothing" order was entered merely because the plaintiff had failed to prove his case by the location of the surveys and the conflicting conterminous lines, if any. The case of Freeman v. McAninch,87 Tex. 132, bears no relationship to the instant case. The statement of that case by Judge STAYTON, in part, is as follows:

"On December 7, 1878, John D. Freeman brought an action against J. F. McAninch and Daniel McCray to recover a tract of land containing 622 1/2 acres, part of one-third of a league of land originally granted to Joseph Washington. The petition was in the usual form of petitions in actions of trespass to try title, and described the land sued for by metes and bounds.

"Defendants demurred to the petition, pleaded not guilty, limitation of three and ten years, and set up title in themselves to part of the land, giving description of that which each claimed, under a survey made by virtue of certificate issued to George Allen.

"They also pleaded in estoppel acts of D.C. Freeman, and claimed value of improvements made in good faith.

"The cause was tried before a jury, and upon a verdict for plaintiff judgment was rendered in his favor for all the land sued for, which in the judgment was described as in the petition.

"From that judgment defendants prosecuted a writ of error to the Supreme Court, where the judgment was affirmed.

"Defendants in that action seek in this to avoid the effect of that judgment as an adjudication of the title to all the land described in the petition and judgment; and Daniel McCray now asserts title to 134-1/3 acres of the land embraced in that judgment, to which he asserts title through a conveyance made by D.C. Freeman pending that action."

Daniel McCray sought to avoid the judgment against him to 134-1/3 acres of the land because of some oral agreement had with the lawyers, which was no part of the judgment roll, and by reason of which he did not introduce in evidence his title. All that Judge STAYTON held was that he could not contradict the judgment by evidence of such an agreement, and that he was concluded by the decree in the previous suit. Briefly, that is all that was decided, and in no way sustains the contention of the Permian Oil Co. in the case before us.

I approve what is said in the opinion of the majority with reference to recordation of judgments, notice, innocent purchasers, etc. From what I have said above my disagreement with the majority on the vital question here involved is apparent. I am of the view that the judgment of the Court of Civil Appeals should have been affirmed; and since this was not done, and for the reasons herein shown, I respectfully dissent from the majority opinion.

Opinion delivered July 7, 1937.