A levy which fails to state whose property is levied upon, to give the number of acres levied upon, the name of the survey levied upon, or any other fact which will of itself reasonably identify the land levied upon, is void. Meuley v. Ziegler, 23 Tex. 88; Beze v. Calvert, 20 S.W. Rep., 1130; Wofford v. McKinna, 23 Tex. 36; Leland v. Wilson, 34 Tex. 79 [ 34 Tex. 79]; Pfeiffer v. Lindsay, 66 Tex. 123 [ 66 Tex. 123]; Allday v. Whitaker, 66 Tex. 670 [ 66 Tex. 670]; Murray v. Land, 27 Tex. 90; Norris v. Hunt, 51 Tex. 610, 612; Mitchell v. Ireland, 54 Tex. 305; Wooters v. Arledge, 54 Tex. 395; Coker v. Roberts, 71 Tex. 601 [ 71 Tex. 601], 602; Cleveland v. Sims, 69 Tex. 153 [ 69 Tex. 153]; Terrell v. Martin, 64 Tex. 125. The title of a purchaser of land at sheriff's sale must rest upon a valid judgment, levy and execution sale, and payment of the purchase money; and as the appellee's title does not rest upon these, his title is void.
The ambiguity is a patent one, and cannot be cured by evidence not referred to in the order. Davenport v. Chilton, 25 Tex. 518; Norris v. Hunt, 51 Tex. 609 [ 51 Tex. 609]; Pfeiffer v. Lindsay, 66 Tex. 123. If the description, one-fifth of two leagues, be construed to mean an undivided one-fifth of two leagues, an order of sale containing such a description, when the parties to the suit did not own such an interest, but only 640 acres, and that not as an undivided interest in the two leagues, but owned a particular 640 acres set aside to them before the order of sale, did not authorize the sale of said 640 acres, and without the order of the court to support the sale the sale was void.
v. Wood, 66 Tex. 22; Norris v. Hunt, 51 Tex. 609; 1 Greenleaf on Evidence, sec. 297. An administrator's sale of a tract of land out of a larger tract without further identification in the deed and proceedings in the Probate Court, including the inventory, petition to sell, order of sale, report of sale and confirmation, than the designation of the number of acres attempted to be conveyed, is void. The inventory, petition to sell, order of sale, report of sale and confirmation are practically one continuous record, and if there is any latent ambiguity in the use of the word "of" in the deed that ambiguity is fully removed by other parts of the record, and especially the inventory, where the land is described as "a part of" the P.W. Rose headright. Jones v. Carter, 56 Mo., 403; Munnink v. Jung, 22 S.W. Rep., 293; Norris v. Hunt, 51 Tex. 609; Harris v. Shafer, 23 S.W. Rep., 979; Wofford v. McKinna, 23 Tex. 45; Collins v. Ball, 82 Tex. 259; Brown v. Chambers, 63 Tex. 131 [ 63 Tex. 131]; Pfeiffer v. Lindsay, 66 Tex. 123 [ 66 Tex. 123]; Rorer on Judicial Sales, sec. 500, p. 209; McDonald v. Bank, 74 Tex. 539. The rule that applies to the construction of a sheriff's deed and sale applies to a sale by an administrator.
Robert G. Street filed an argument for appellants, citing: Wofford v. McKenna, 23 Tex. 36; Pfeiffer Co. v. Lindsay, 66 Tex. 124; Norris v. Hunt, 51 Tex. 609 [ 51 Tex. 609]; Donnebaum v. Tinsley, 54 Tex. 362 [ 54 Tex. 362]; Wooters v. Arledge, 54 Tex. 396 [ 54 Tex. 396]; Waters v. Spofford, 58 Tex. 124 [ 58 Tex. 124]; Meuley v. Zeigler, 23 Tex. 88; Rogers v. Bradford, 56 Tex. 630; Jackson v. Roosevelt, 13 Johns., 102; Jackson v. Delaney, 11 Johns., 373; Jackson v. Delaney, 13 Johns., 551; Simons v. Cotton, 2 Caine, 61; Paine v. Webster, 1 Vt. 101; Arms v. Bent, I Vt., 319; Brown v. Dickson, 2 Humph., 395; Waters v. Duvall, 6 Gill. Johns., 76; Gault v. Woodbridge, 4 McLean, 329; Blackw on Tax Titles, 125; Rev. Stats., arts. 177, 2288. Scott, Levy Smith also filed argument for appellants, citing: Reddick v. Williams, 5 S.W. Rep., 375; Sanger v. Trammell, 66 Tex. 361; Pfeiffer v. Lindsay, 66 Tex. 124; Freem. on Ex., sec. 280. Willie, Campbell Ballinger, for appellees, in an argument, cited: Wilson v. Smith, 50 Tex. 369; Kingston v. Pickins, 46 Tex. 99; Giddings v. Day, 84 Tex. 605 [ 84 Tex. 605]; Overand v. Menczer, 83 Tex. 123 [ 83 Tex. 123]; Thornton v. Murray, 50 Tex. 161 [ 50 Tex. 161]; Hooper v. Hall, 30 Tex. 154; Cox v. Hart, 145 U.S. 387; Dodge v. Walley, 23 Cal. 225; Swan v. Parker, 7 Yerg., 490; McLean v. Paul, 5 Iredell (Law), 22; Rev. Stats., arts. 2316, 4340.
" In Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264, a deed was held void by reason of the insufficiency of the description of the land attempted to be conveyed, the description being: "Fifty acres [of land out] of the J. M. Moss survey, situated in Montague county, Texas, abstract No. 462, situated near the town of Burlington, in Montague county, Texas."
1 The rule is well established that for a contract to convey land to be sufficient under the statute of frauds (Art. 3995 R.C.S.), "the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty." Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848; Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703; Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624; Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264; Hanks v. Hamman (Com. App.), 289 S.W. 993; Continental Supply Co. v. Missouri, K. T. Ry. Co. (Com. App.), 268 S.W. 444; Id. 269 S.W. 1040; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Starkey v. Texas Farm Mortg. Co. (wr. ref.), 45 S.W.2d 999; Rosen v. Phelps (wr. ref.), 160 S.W. 104; MacLane v. Smith (no wr. of error history), 198 S.W.2d 493; 37 C.J.S. Statute of Frauds No. 184; 20 Tex. Jur. pp. 311-12; Thompson, Real Property (1940), Vol. 6, pp. 457-460. The lease contract describes the land in question as being in a ten-acre block on the north side of the Kilgore highway in the P. Chireno Survey about two miles East of the Smith County courthouse, and designates it as "four (4) acres out of the East end" of the block.
If from these an intended purchaser would be left in hopeless uncertainty as to where and what the land is, he will be deterred from buying, at least for anything like a reasonable price." (Pfeiffer v. Lindsay, 66 Tex. 123, [1 S.W. 264].) It is a significant circumstance that the valuable house and lot here in question was purchased at the execution sale for five dollars.
— The Court of Civil Appeals erred in finding and holding, counter to its former ruling, that in 1878 the probate court of Coryell County partitioned and divided the property belonging to the estate of Taffinder and Mrs. Bivens among the plaintiffs and interveners, and in applying that decree to specific properties of said estate, especially to the property in controversy in this suit, which decree's description it had already decided was too indefinite and uncertain to apply to any particular lots in the town of Hamilton or elsewhere, and could not be aided by other evidence. Taffinder v. Merrell, 45 S.W. Rep., 477; Hearne v. Erhard, 33 Tex. 67; McDonald v. Bank, 74 Tex. 541 [ 74 Tex. 541]; Mitchell v. Ireland, 54 Tex. 301 [ 54 Tex. 301]; Wooters v. Arledge, 54 Tex. 395 [ 54 Tex. 395]; Pfeiffer v. Lindsay, 66 Tex. 125 [ 66 Tex. 125]; Coker v. Roberts, 9 S.W. Rep., 665; Aloday v. Whitaker, 1 S.W. Rep., 794; Munnink v. Jung, 22 S.W. Rep., 293; Dwyre v. Speer, 27 S.W. Rep., 585; Adams v. Hicks, 41 Tex. 241; Devlin on Deeds, sec. 1610; 1 Greenl. on Ev., secs. 297-300, and note 4 to sec. 300. The Court of Civil Appeals erred in holding that the probate court of Comanche County confirmed a sale by A. Bivens, guardian, to Thomas Emmett, of the property in controversy, by a proper order.
Reversed and rendered.Eugene Williams, for defendants in error Orkney's, moved for a rehearing, citing against the validity of the probate sale the following additional authorities: Rev. Stats, art. 624; Linney v. Woods, 66 Tex. 27; Pfeiffer v. Lindsay, 66 Tex. 124 [ 66 Tex. 124]; 1 Greenl., Ev., secs. 299, 300, 301; 2 Wharton, Ev., secs. 952, 956; 1 Rice, Ev., 275. He also urged that the Supreme Court erred in rendering judgment against the sureties on the bond of the Orkneys for the entire amount of the costs, in this: That the bond was payable in the sum of $250, whereas the costs may exceed this amount, and the judgment should have limited the responsibility of the sureties on said bond to the sum expressly named in this bond.
Shepherd v. White, 11 Tex. 346. The ambiguity in respect to description was patent, and could not "be holpen by averment or proof," Norris v. Hunt, 51 Tex. 614 [ 51 Tex. 614]; Pfeiffer v. Lindsay, 66 Tex. 125 [ 66 Tex. 125]; Coker v. Roberts, 71 Tex. 602. The remedy in such ease, and the only remedy, is, through affirmative equitable relief, to reform the instrument.