On Motion for Rehearing. Since our original opinion was filed the Supreme Court has granted a writ of error in the case of Simpson v. Green, supra, with the following docket entry:
"Granted. We think a deed placed in escrow is a sufficient memorandum in writing signed by the grantor to comply with the statute of frauds. We doubt whether there is any evidence to support the conclusion that it would be inequitable to decree specific performance of the contract."
While the majority are still of the opinion reached by them on the original hearing, and while we recognize that this docket entry does not necessarily reflect the conclusion which will be reached by the Supreme Court on final hearing, yet we conclude that the docket entry is at least expressive of the present views of the Supreme Court, and, as the instant case will likely go to the Supreme Court in any event, we have all concluded that the motion for rehearing should be granted, the former judgment set aside, and the judgment of the trial court affirmed.
If the written instrument placed in escrow with Collie was sufficient as a present conveyance or as a memorandum in writing which would bind grantors, then this judgment should be affirmed. Bott v. Wright,62 Tex. Civ. App. 632, 132 S.W. 960, 962; Smith v. Moore, 155 S.W. 1017,1019.
Motion for rehearing granted, former judgment set aside, all assignments overruled, and judgment affirmed.
On Further Motion for Rehearing. A judgment was rendered by this court in this case February 28, 1920, by which the majority reversed the judgment below and rendered judgment for appellants. On April 17th following, and after the Supreme Court had granted a writ of error in the case of Simpson v. Green, 212 S.W. 263, with the following docket entry:
"Granted. We think a deed placed in escrow is a sufficient memorandum in writing signed by the grantor to comply with the statute of *Page 287 frauds. We doubt whether there is any evidence to support the conclusion that it would be inequitable to decree specific performance of the contract"
— we granted a rehearing and set aside the former judgment and affirmed the judgment below.
On the first consideration of the case, the mind of the court was directed to the issue of whether or not the instrument signed by F. W. Townsend and placed with W. M. Collie was sufficient to take the case out of the statute of frauds, and, the majority concluding that it was not, we went no further in the consideration of the assignments. On rehearing, we concluded that the granting of the writ of error by the Supreme Court, with the docket entry as given above, indicated the present attitude of the Supreme Court on the question involved in Simpson v. Green, and that the position of the majority on original hearing in this case was not in accord with the views expressed by the Supreme Court in this docket entry. Hence, we set aside our former decision and affirmed the judgment, overlooking the fact that there were other assignments in appellant's brief which should be considered.
The third assignment complains of the ruling of the court in admitting oral evidence with reference to the description of the land covered by the mineral lease sought to be assigned. The alleged memorandum did not include a description of the property sold, except by reference to the lease from the Thorntons to Townsend, and appellants urge that parol evidence was inadmissible to supply the description wanting in the instrument. In the bill of exceptions upon which this assignment is based, there appears, among other reasons offered by appellants in the objection to the introduction of this testimony, the following:
"(1) Such evidence was irrelevant and immaterial.
"(2) Because said evidence was not the best evidence of the contents of said lease or assignment."
The evidence to which objection was made was the testimony of F. E. Day, and it is as follows:
"I understand that [referring to the lease] is a part of the W. L. Thornton land, and covers the same land described in the petition. I understand that is what the assignment covers. It seems to me the defendant told me that it was the W. L. Thornton lease. Mr. Bishop delivered me his abstract, describing the land that I was buying. The land and abstract is described as the Thornton land. I saw the original lease, also. That described the same land as the above. Now, about the original lease — I don't think I have seen the original lease. I saw the certificate of the abstracter. I saw the lease was recorded, and A saw the abstracter's certificate."
This appears to be the only evidence in the record of the contents of the lease made by W. L. Thornton to F. W. Townsend. While the appellees urge that parol evidence is admissible in aid of the description in the escrow agreement, we do not understand that that rule authorizes the admission of hearsay evidence in order to establish the description given in the instrument to which reference is made in the escrow agreement. Appellees cite the cases of Spaulding v. Smith, 169 S.W. 627; Petty v. Wilkins, 190 S.W. 539; Rosen v. Phelps, 160 S.W. 104; Stroburg v. Walsh,203 S.W. 391, in support of the contention that this evidence was admissible. In Stroburg v. Walsh, by the Court of Civil Appeals for the Austin district, the court said:
"That oral testimony is admissible, in a proper case, to identify the subject-matter of a contract is too well settled to require the citation of authorities in support of the proposition. A conveyance of land, or a contract to convey the same, may contain a minute and accurate description of the land, and yet it may, and in many cases would, require oral testimony to identify the land. For example, a deed to a lot may describe the same as lot No. 2, in block No. 15, in Austin, Tex., as shown by the map of said city, giving volume and page where same is recorded, and yet such deed would not convey to any one not familiar with such city any idea as to the location of such lot. But no one denies that its location might be proven by the oral testimony of any one who was familiar with the location of such lot. The same would be true if the lot was described as being located at the intersection of certain named streets, or if a tract of land was described with reference to certain natural or artificial monuments."
In Petty v. Wilkins, supra, it is said, on page 533, 190 S.W.:
"It is also insisted that we erred when we overruled appellant's cross-assignment, in which he complained of the action of the trial court in admitting as evidence, over his objection thereto, that it was void for lack of a sufficient description of the land it purported to convey, the deed from L. Collins to R. J. Stephenson, dated March 24, 1869. The deed was not copied into the record sent to this court, but is referred to therein as follows: `Deed from L. Collins to R. J. Stephenson, dated March 24, 1869. Recorded in volume 3, p. 390, Deed Records of Franklin County. Filed for record April 5, 1869. A certain tract or parcel of land better known and described as Follows, to wit: Beginning on the east boundary line of a hundred and sixty acre survey made by virtue of the headright certificate of Joseph Stone a stake; thence west 168 2/3 vrs. a stake; thence south 139 2/11 varas a stake; thence east 168 2/3 vrs. a stake; thence north 139 2/11 to the place of beginning. Also known as the place built on by Thos. Davis and lastly occupied by G. N. Breckenridge, containing Four (4) acres, being a part of said Stone survey. Together with all and singular the appurtenances thereto belonging.' *Page 288
"The specific grounds upon which it is claimed the description was insufficient are that the land in controversy was a part of the Joseph Sloan survey, whereas it was described in the deed as a part of the Joseph Stone survey; that it did not appear from the deed in what county and state the land it purported to convey was situated, and that `the beginning in the description was not sufficiently located in order to describe any land.' We were, and are, of opinion the deed was not on its face void for uncertainty in the description of the land it purported to convey, because it appeared therefrom that the land therein described might be identified as the land in controversy by proof showing that it was `known as the place built on by Thos. Davis and lastly occupied by G. N. Breckenridge.' The rule is that a deed is not void for uncertainty unless on its face the description cannot, by extrinsic evidence, be made to apply to any definite land. Waterhouse v. Gallup, 178 S.W. 773; Roberts v. Hart, 165 S.W. 473."
As will be noted from these excerpts from the two opinions cited, the courts writing them merely held that parol evidence was admissible to identify the land by means of physical objects on the ground, or by means of its occupancy by certain persons, etc. There is nothing in either of these opinions, or in either of the other two cited, which holds that a witness may testify to the contents of a written instrument, in which the description of the land is supposed to be given, and where no reason is shown why the instrument itself, either the original or a certified copy, was not offered in evidence. We believe this assignment must be sustained, and that the judgment for the appellees must be reversed.
The judgment entered on April 17, 1920, in which a rehearing was granted, the former judgment set aside, and the judgment below affirmed, is set aside, and the trial court's judgment reversed, and the cause remanded.