The land involved in this litigation is a tract in Harris County, containing 519 acres, the name of the original grantee of which is J.S. Collins, and the abstract number of which is 195. There is another tract in Harris County containing 477 acres, patented in the name of the same grantee, the abstract number of which is 196. Both tracts belonged to Charles B. Stuart, deceased, and under a decree of partition of his estate by the Probate Court of Montgomery County both parties claim as his heirs. In the report of the commissioners, which was adopted by the court in all respects, and in the decree, into which the substance of the report is copied, it appears that one of these tracts was set apart to Laura Stuart, and the other to Mrs. Barclay. In designating the tract given to Laura Stuart, the report and the decree described it as abstract number 196, original grantee J.S. Collins, 519 acres, valued at $1908, situated in Harris County; and that set apart to Mrs. Barclay was named as abstract number 195, original grantee J.S. Collins, containing 477 acres, valued at $1250, situated in Harris County. It thus appears that the abstract numbers were reversed, that belonging to one tract being given to the other. Each of the parties to this suit claim the 519 acres tract, for which appellee sued, and recovered the judgment from which this appeal is prosecuted.
In the trial below parol evidence was admitted, over the objection of the defendant, tending to show which of the two tracts was intended for Laura Stuart and which for Mrs. Barclay, the two commissioners who testified both stating that the 519 acres tract was given to Laura, because they believed it to be the most valuable of the two, the valuation put upon it being essential to make up her share of the estate to which she was entitled; and that for the same reason the other tract was given to Mrs. Barclay, as she received other property of more value than such as was given to Laura, apart from the tracts in question. They further stated, that if any mistakes occurred in the description of the land, it consisted in assigning to the two tracts the wrong abstract numbers. On *Page 688 the other side, testimony was adduced tending to show that the 477 acres tract was at the time of the division considered the most valuable, and for that reason was assigned to Laura Stuart, and the other to Mrs. Barclay, the mistake consisting in stating the acreage given to each, and not in the use of the abstract number.
The evidence thus conflicted, and if it was admissible, the conflict must be resolved in favor of appellee, for whom the jury decided it.
The court submitted to the jury the question, whether the tract in controversy was in the partition set apart to the plaintiff or to the defendant, instructing them that the question was one of identity, to be decided under the evidence.
Opinion. — The first assignment complains of the overruling of the exceptions to the petition, on the ground that the action was one to correct the decree of the Probate Court of Montgomery County, which the court had no jurisdiction to do.
As we view the action, it is one of trespass to try title, in which the plaintiff must recover by showing title to the land. The partition can not be collaterally attacked, and we do not understand that this is sought. The question put in issue is the effect of that proceeding. The allegations in the petition are intended simply to admit evidence to enable the court to ascertain what passed to each party, by explaining the latent ambiguity in the description of the land, which had been developed. There is, it is true, a prayer for the correction of the mistake in the decree, but the court could and did properly disregard that. If plaintiff succeeded in showing title under the decree, there was no need to correct it, but the whole purpose of the suit was accomplished. The trial below was conducted upon that theory, which was the correct one. The court did not err in the ruling complained of. If there were portions of the petition which were irrelevant, exceptions should have been taken to those parts. But had this been done, and had the exceptions been overruled, this would have had no influence upon the trial.
There was no error in overruling the defendant's exception to the plaintiff's supplemental petition. The allegations were made in reply to an attempt to set up an estoppel in the answer, and alleged that at the time of the acts and admission relied on as constituting the estoppel plaintiff was ignorant of the true facts and of her rights. The fact that she alleged in her petition that she was present when the decree was rendered, does not show that she knew the facts which were subsequently developed as to the mistake in the description of the land. Besides, there was no estoppel in the case, and the ruling becomes immaterial.
The third, fourth, fifth, and sixth assignments complain of the admission of the parol evidence referred to in the statement of the case above *Page 689 made, and present the principal question in the case. The descriptions given in the decree of the two tracts of land, on their face, would appear to be sufficient to identify the land intended to be adjudged to the parties; but in the attempt to apply these descriptions to the subject matter referred to, it is found that one of the particulars in each case fails to apply to the land. The case is presented of a latent ambiguity, which is made to appear by evidence aliunde the decree, and which can therefore be removed, if practicable, by such evidence. The object in receiving the evidence in such cases is not to vary or alter the judgment, but to explain its meaning and enable the court to determine its effect. Whart. on Ev., 986; Black on Judg., 623.
If the judgment by its own terms, when applied to the land, was free from ambiguity, so that the court could say to which of the parties the land in controversy had been set apart, no evidence would be admissible to add to or explain it. But here it is found that while the number of acres adjudged to the plaintiff is the same as that embraced in this tract, the abstract number does not fit it; and on the other hand, the abstract number given for the tract awarded to the defendant fits the tract in controversy, while the number of acres does not. Which is to control?
Ordinarily, in a deed or other instrument, the abstract number would, we think, be the more reliable, because more specific. But here the attention of the court and the commissioners is directed to quantity and value rather than to the particulars of description, the object being to make an equal division. Besides, there being two tracts in the same county, having the same original grantee, of different sizes, the number of acres in them respectively would distinguish them as perfectly and completely as the abstract number. The area supposed to be embraced in the tract would necessarily be known to the commissioners, while the abstract numbers might be unknown to them; and they would naturally attach more importance to quantity where, as in this case, that affords the means of distinguishing one tract from all others, than to other particulars.
We do not, therefore, think that it can be said that this judgment necessarily had the effect to vest in the defendant title to the 519 acres tract. Either description will apply to either tract if one of the particulars be rejected; and neither description will apply to either tract unless one of the particulars be rejected. We are not prepared to say that the court could properly decide, as matter of law, which one of the circumstances must prevail. If it could not, there was no error in admitting evidence to explain the decree and guide the court and jury to the real truth.
The special charges numbers 1, 2, 3, and 4, asked by defendant and refused, are not set out, nor their substance stated in the brief. This is not a compliance with the rules. *Page 690
The fifth instruction, directing a verdict for defendant, was properly refused, as was the sixth, which declared the effect of the decree of partition to be to vest the title to the land in controversy in the defendant. The seventh, while differently worded, would have had the same effect upon the minds of the jury. The objections made to the charge of the court are not well taken.
It follows that there was no error in refusing a new trial. Our conclusion is, with the verdict of the jury, that the decree of partition vested the title to the premises in the plaintiff, and that the judgment should be affirmed.
Affirmed.