(dissenting).
The following opinion down to page 19 thereof was written and submitted to my associates on January 12, 1951. At that time a majority of the court took the view that the certified copy of the judgment and pleadings in cause No. 2525, and of the orders of sale issued in said cause and of the three deeds filed in this cause, the record of which is referred to in plaintiffs’ petition, were a part of the record in this cause, and under authority of Rule 428, T.R.C.P. by order dated March 7, 1951, they directed the clerk of this court to issue a writ of certiorari to the clerk of the trial court to send up these instruments. In compliance with the writ so issued the clerk of the trial court did send up the instruments referred to which were received by the clerk of this court on March 17, 1951.
The writer did not concur in the order referred to, taking the view that it was incumbent upon appellant to bring to this court such portions of the record as were essential to show error in the trial court’s judgment, and further because he entertained grave doubt whether matters of which the trial court could take judicial notice but were not made a part of the record proceedings in that court were properly a part of the record which could be brought before this court. It was his view that appellant could have easily *346made these instruments a part of the record in the trial court, either by attaching copies thereof to his petition or by affidavits filed in opposition to appellee's motion for a summary judgment, and that since he had not done so the instruments referred to were not properly part of the record in this cause which this court could property require the clerk of the trial court to send up under Rule 428, and that from the entire record which appellant did bring before this court it appeared that it would be inequitable and unjust in this case to lend the aid of this court to appellant in order to enable him to perfect a record which might show reversible error. I am still of this opinion. The portion of the following opinion down to page 19 was based on the record which the appellant brought before this court:
Appellants prosecute this appeal from a summary judgment rendered against them on August 30, 1950, by the 83rd Judicial District Court of Brewster County. The plaintiffs below were Ernest Jones and wife, Louise Jones, and E. B. O’Quinn, appellants here, and the defendants were Ray W. Willoughby, Jim Skinner, Sheriff of Brewster County, National Finance Credit Corporation of Texas, a corporation, and A. A. Abernathy, trustee, appellees here.
Since the judgment was rendered on the unverified motion of defendants without the aid of supporting affidavits, under Rule 166-A, R.C.P. the judgment must stand or fall on the pleadings and the motion in the light of matters of record of which the court could take judicial notice. Therefore a rather full summation of the pleadings is deemed necessary.
By an action in the statutory form of trespass to try title plaintiffs sought to recover title to and possession of certain lands described in their petition by reference to the record of three deeds of record in Brewster County, whereby such lands were conveyed to plaintiff Ernest Jones, reference being made to the volume and page of the deed records of Brewster County where such deeds were recorded, for a more particular description of the lands. It is alleged that plaintiff E. B. O’Quinn acquired an undivided one-half interest in such lands by deed from Earnest Jones dated December 7, 1949, which was of record in the deed records of Brewster County, reference to volume and page of such records being made for a more particular description of such lands. Plaintiffs prayed for judgment for title and possession of the lands so described. It was further alleged that on September 19, 1949, defendant Ray W. Willoughby in cause No. 2525 in the district court of Brewster County, recovered a judgment against plaintiffs Ernest Jones and Louise Jones for the sum 'of $55,024.17 and for foreclosure of certain purported deeds of trust liens therein recited. Reference was made to such judgment as filed among the papers in that cause and as recorded in the minutes of the court, and by such reference same was alleged to be made a part of plaintiffs’ petition. It was alleged that such judgment was void and of no force as a foreclosure of such purported liens or of any liens or as evidencing any indebtedness or liens against the lands attempted to be described in said judgment or any lands belonging to plaintiffs Ernest Jones and wife Louise Jones, or any lands described in and involved in this suit because the description of the lands described in said judgment is not sufficient to identify said lands under the Statute of Frauds, Art. 3995, R.C.S., for like reason the description contained in two orders of sale and notices of sale and Sheriff’s deeds based on said judgment was insufficient and all of said instruments were entirely void insofar as they affect or relate to the lands attempted to be described therein; that the description of said lands in the plaintiffs’ original petition in cause No. 2525 and in all other pleadings in said cause were and are void for like reason, and the various deeds of trust and assignments thereof recited and referred to in cause No. 2525 and also three deeds of trust executed by plaintiffs Jones and assigned to defendant Willoughby, one of such deeds of trust being dated July 23, 1948, to A. A. Abernathy, Trustee for National Finance Credit Corporation, one dated April 20, *3471940, to D. B. Hardeman, trustee for Billy Ranks, and one dated September 4, 1946 to Donald Fitch, trustee for the Travelers’ Insurance Company, were and are void for like reason; that the acts of the defendant Ray W. Willoughby in procuring the issuance of such orders of sale and notices and the Sheriff's acts in connection therewith constitute negligence which was the proximate cause of plaintiffs’ damages thereafter alleged to be the sum of $500,-OOO for loss of sale of said property and $23,500 for the reasonable rental value thereof. Plaintiffs further alleged that the common source of title to the lands involved in this suit was plaintiffs Ernest Jones and wife, Louise Jones, or their grantors in the three deeds referred to and they gave notice that proof of such common source would be made by certified copies of such deeds and the judgment and orders of sale in cause No. 2525, and that contemporaneous with the filing of their petition they had filed with the papers in this cause certified copies thereof; that notice of such filing had been given under the provisions of Rule 798, R.C.P.; plaintiffs further alleged that all of the albove instruments constitute a cloud on plaintiffs’ title to the lands herein involved and prayed that such cloud be removed. Plaintiffs’ petition was verified.
Defendant Ray W. Willoughby filed an answer in which he specially excepted to plaintiffs’ petition because the allegations thereof were insufficient to describe any lands in Brewster County or anywhere else, and further that the allegations in connection with the reference to the records, documents and instruments when considered in connection with such instruments, documents and pleadings show that plaintiffs were estopped from asserting any right, title or interest in the lands referred to in theiir petition because any defense to the suit referred to (No. 2525) should have been there asserted. He further answered by general denial except as to the contents of the records referred to. This defendant, Ray W. Willoughby, filed a motion for summary judgment that plaintiffs take nothing for the following reasons:
“1. The pleadings and the records referred to in the pleadings show that this Defendant obtained the judgment foreclosing a deed of trust upon all the lands described in the deed of trust executed by Ernest Jones and wife,, and that it is the same wherein and whereby the Plaintiff purchased said lands. That is, it shows that the Plaintiff Jones executed a deed of trust upon the same lands as those described in the deed where he punchesed same.
“2. For the further reason that the records alleged and referred to by Plaintiff in this petition, fully and conclusively show that a valid judgment was rendered in this Court, wherein and whereby the Defendant, Ray W. Willoughby, obtained a money judgment against the Plaintiff Jones, and foreclosing a valid deed of trust lien against him, and that an order of sale was issued directing the Sheriff to sell said lands, and that said lands were sold by the Sheriff, and the Defendant Willoughby took possession by virtue of said deeds, and that Plaintiff Jones, as Defendant in said cause, and Plaintiff O’Quinn, his Attorney in said suit, and by the pleadings, record and documents show that they both appeared and contested said suit, making all imaginary defenses that they, knew of, and the pleadings do not show that they were prevented by fraud or otherwise from making the same defense as set out and attempted to be set out in this petition, and that said judgment and foreclosure is a valid, final judgment, not having been appealed from.
“3. For the further reason that the records and pleadings in the cause referred to, and in this cause between the same parties, that this Court has cognizance of, shows that since the foreclosure suit and the sale of said lands that the plaintiff and his present Attorney have filed two suits, the first suit having been filed by the Plaintiff Jones alone, without any service of citation, and this Defendant answered, and on or about the first day of March, or about appearance day, said cause was dismissed by the Plaintiff; and this suit was filed wherein and whereby his Attorney joined as a party Plaintiff, to the effect that both Plaintiffs have had every op*348portunity that they were entitled to to make any defense, and in fact the file containing the pleadings, letters, etc. in the original cause referred to by Plaintiff shows that the Defendants in said original cause were satisfied that the case had been piroperly tried, and that the 'Court had properly ruled upon all issues, and that the laws contended for toy the Defendants were correctly decided, with an apology that the Attorney was beating the bushes for every defense or delay that he could morally anticipate, and in this connection we call the Court’s attention to the latter part of paragraph 27 of the pleading of Plaintiff now before this Court, that Plaintiff O’Quinn had a deed to an undivided one-half interest in this land and notices are hereby given to all Defendants herein and all parties who may claim under them or any of them that such deed does exist for the purposes and extent here stated, and that theretofore no lawful compromise, settlement or adjustment of this suit or the subject matter thereof can be made with Ernest Jones and his wife, Louise Jones, without the joining and concurrence therein by the said E. B. O’Quinn; all of such allegations having no weight whatever as to show a cause of action against this Defendant.
“4. For the further reason that said pleadings of this Plaintiff in connection with the reference to the records show that the foreclosure by Ray W. Willoughby against Plaintiff Jones and his wife was for part of the purchase money that Jones promised to pay for the lands herein described, and there is no offer to return any money, no offer to pay the purchase price, and no allegations that would excuse the Plaintiffs.
“Wherefore, this Defendant prays that a summary judgment be entered herein to the effect that Plaintiffs take nothing by this suit, without prejudice however to the rights of Defendant to bring an independent action, if he should have one and so desires, against the Plaintiffs herein for damages for slandering his title, etc.”
Neither this defendant’s answer nor his motion for summary judgment was verified. The court in his judgment recites: “ * * * tj.¡e proceeded to examine the pleadings, matters of record, and such motion on file herein, and after hearing the argument of Counsel, is of the opinion and so finds that Defendant, Ray W. Wil-loughby, has given notice of said motion for summary judgment, as provided by the Rules of Civil Procedure; that there exists no genuine issue as to any material fact between the parties; and that as a matter of law the Defendants herein are not guilty of the wrongs and trespasses alleged by Plaintiffs; that the Plaintiffs are not entitled to cancellation of the various instruments described • in their original petition filed herein, and that such instruments are not void; that Plaintiffs are not entitled to recover the title and possession of and to the lands in controversy herein, which are referred to in said Plaintiffs’ original petition ; that as a matter of law, no cause of action is asserted by Plaintiffs against the remaining Defendants herein, and that Defendant’s motion for summary judgment should be granted.”
Briefly summarizing appellants’ points; The court erred in rendering a summary judgment because defendant Ray W. Willoughby’s answer and motion were not verified and there were no affidavits verifying pleadings or testimony other than plaintiffs’ verified pleadings; the 'Court erred in making the findings and conclusions above quoted in his judgment because defendant’s pleading and motion were not verified and no affidavits, testimony or pleadings were furnished to the court supporting or justifying said summary judgments or said findings and conclusions; because the pleadings and certified copies of the deeds, judgments, orders of sale and Sheriff’s deeds on file in this case showed conclusively that there did exist genuine issues as to material facts between the parties and that as a matter of law defendants are guilty of the wrongs and trespasses alleged by plaintiffs and plaintiffs are entitled io> cancellation of the various instruments described in their original petition, which conclusively shows that said judgment, orders of sale, Sheriff’s deeds and deeds of trust were and are void and that the deeds of trust sought to be foreclosed' in *349cause No. 2525, the judgment and order of sale therein, the notices of sale and Sheriff’s deeds were absolutely void because description of the lands therein contained was insufficient to comply with the requirements of the Statute of Frauds, Art. 3995 R.C.S.; because the summary judgment rendered and the findings and conclusions recited therein is in direct violation of the Texas and Federal Constitution in that it denies to plaintiffs due process of law and deprives plaintiffs of their property without due process of law. This last point is not briefed and will not be further noticed.
Rule 166-A, R.C.P. providing for summary judgments in this State did not become effective until March 1, 1950; hence there is a dearth of judicial decisions of our appellate courts where a construction of this Rule has been involved. However, enlightening articles dealing with the Rule by Judge Robert W. Stayton may be found in the Texas Bar Journal of March 1950 at page 93, and of September 1950, page 445, also an excellent article by Tom Suggs and lone Stumberg on summary judgment procedure appears in Vol. XXII, Texas Law Review, p. 433, and McDonald, Texas Civil Practice, Vol. 4, p. 1379, Sec. 17.26 et seq. deals with the subject at length. The source of Rule 166-A is Fed. Rules Civ. Proc. Rule 56, 28 U.S.C.A. See Franki, Vernon’s Rules of Civil Procedure. There is no substantial difference between Rule 166-A and Federal Rule 56, and hence the construction of Federal Rule 56 by the Federal courts which appear in numerous decisions (see article by Judge Stayton supra) are persuasive if not controlling as to the correct interpretation of Rule 166-A.
It would seem from a mere reading of Rule 166-A(b) which provides: “(b) For Defending Party. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory judgment is sought may at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof,” that a summary judgment may be rendered in favor of defendant without verified pleadings, supporting affidavits or evidence on an unverified motion of defendant when the plaintiffs’ petition presents “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 166-A (c) ”. Such a motion is directed solely to the pleadings and matters of record of which the court may take judicial notice, and is closely an-alagous to a special exception challenging the sufficiency of the opponent’s pleadings as a matter of law. McDonald’s Texas Civil Practice, Vol. 4, p. 1388, Sec. 17, 26 (IV) (i) and page 1394, Sec. 17.26 (VI). It is equivalent to a general demurrer under our former practice. See article Suggs and Stumberg, supra. However, the only final judgment that the court could render where a special exception was sustained or a general demurrer was sustained under our former practice where the plaintiff failed or refused to amend was a judgment of dismissal. Under Rule 166-A(a) and (c) when it appears that there is no genuine issue as to any material fact between the parties and the plaintiff fails or refuses to amend, the defendant on motion is entitled to a summary judgment in his favor, and such judgment is a final judgment.
That it is not a mandatory requirement of Federal Rule 56 that a motion for summary judgment be accompanied by supporting affidavits has been definitely adjudicated by the U. S. Circuit Court of Appeals for the District of Columbia in Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395, 396, where the court said: “ [2] Nor is there anything in the contention that a motion for summary judgment must be accompanied by, supporting affidavits. (Fed. Rules of Civil Procedure Rule 56, U.S.C.A. Tit. 28, following section 723c.) The Rule does not make such mandatory. Reynolds v. Needle, 77 U.S.App.D.C. 53, 132 F.2d 161, decided Dec. 14, 1942.” See also U. S. for use of Edward E. Morgan Co. v. Maryland Casualty Co., 147 F.2d 423, U. S. Circuit Court of Appeals, 5th Circuit.
Rule 783, R.C.P. provides that in actions of trespass to try title the petition shall state: “(b) A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county *350or counties in which the same are situated.” Defendant Willoughby specially excepted to the allegations of plaintiffs’ petition because: “ * * * the same are insufficient to set out and describe any lands or any parcels of lands situated in Brewster County, Texas, or anywhere else, and does not comply with any of the rules and regulations pertaining to a recovery of lands.” The record fails to disclose any action of the court on this exception and it was therefore waived by defendant Willoughby. The record fails to show that plaintiff requested leave to amend and they filed no amendment. This defendant did not base his motion for summary judgment on the ground of this exception; nevertheless appellee Willoughby attempts to- sustain the judgment on the ground that plaintiffs did not sufficiently describe the land in their petition so as to identify any land for which they sued or from which they sought to remove cloud alleged to have been cast by the judgment in cause No. 2525, and the instruments on which such judgment was based.
The only manner in which plaintiffs’ petition sought to identify the lands involved in this suit was by reference to the records of the deeds in Brewster County and to- the judgment in cause No-. 2525. They did not attach copies of such instruments to their petition as exhibits and copies thereof do not appear in the transcript, although they did refer to the judgment in cause No. 2525 as filed among the papers in said cause and as recorded in the minutes of the court, and by reference sought to make such judgment a part of their petition. The reference to the record of these deeds and to the judgment was insufficient to constitute such records exhibits to plaintiffs’ petition and to make them a part thereof, even though it was subsequently alleged that plaintiffs had filed certified copies thereof with the papers in this cause in order to- show the common source of title. In Blum v. Moore, 91 Tex. 273, 42 S.W. 856, 857, Judge Gaines said: * * the original answer was not accompanied by the deed of trust, or a copy thereof, as an exhibit; nor did it contain any recitals of its contents from which it was possible to determine the powers which were attempted to be conferred upon the trustee. It alleged that the mortgage was recorded in Burleson county, and, in speaking of the property, uses the language, ‘All of which said property is fully described in said deed of trust, which is here referred to.’ This did not authorize the court to go out of the record to ascertain the contents of the instrument, or, in the absence of an affidavit controverting the validity of the mortgage, to permit evidence to be adduced of its contents. To make an exhibit to a pleading, the instrument or a copy thereof must be attached to it or filed with it. In other words, it must be made to appear as a part of the pleading. It must be exhibited.” (Emphasis ours.) See also Owen v. City of Eastland, Tex.Civ.App., 37 S.W.2d 1053, citing and following Blum v. Moore and Rule 59, T.R.C.P. However, although the reference to the records of the deeds and to the judgment did not constitute such records exhibits and make them part of the petition, such reference was sufficient in the absence of an exception to authorize the admission in evidence of such records or certified copies thereof, and did constitute a sufficient description of the land involved for this purpose. Steinbeck v. Stone, 53 Tex. 382; Lumpkin v. Silliman, 79 Tex. 165, 15 S.W. 231; Goldman v. Douglas, 81 Tex. 648, 17 S.W. 235; Williams v. McComb, Tex.Civ.App., 163 S.W. 654, loc. cit. 656. Therefore, the Court was not authorized to render summary judgment on the theory that plaintiffs’ petition did not state a cause- of action, or because it failed to- reveal any genuine issue as to any material fact between the parties, because of the insufficiency of the description of the land they sought to recover and from which they sought to remove cloud from title.
As above pointed out, plaintiffs alleged that the common source of title to the lands involved in this suit was plaintiff Ernest Jones and wife, Louise Jones, or in any event the grantors in the deeds, record of which is referred to in their petition, and they gave notice to defendants that proof of,such common source would be made by certified copies of such deeds and of the judgment in cause No. 2525, the orders of *351sale issued thereon and returns thereon and the Sheriff’s deeds executed pursuant thereto, and that contemporaneous with the filing of their petition they were filing with the papers of the suit certified copies of such instruments in conformity with Rule 798, R.C.P. It is thus apparent from the face of plaintiffs’ petition that the land which they allege defendants attempt to describe in suit No. 2525 is the land involved in this suit. Therefore, if the record in suit No. 2525 of which the court could take judicial notice (see Fletcher v. Evening Star Newspaper Co., supra, and authorities there cited and McDonald, Texas Civil Practice, p. 1394, Sec. 17.26, footnote 34) reveals that the land on which a lien was sought to he foreclosed was described with sufficient certainty to identify it and this is the same land involved in this suit necessarily it must follow that plaintiffs’ petition when considered in the light of the record in suit No. 2525 presents no genuine issue as to any material fact between the parties. The judgment recites that the court considered the pleadings, matters of record and motion and found that the various instruments described in plaintiffs’ original petition were not void and that plaintiffs were not entitled to recover the title and possession of and to the lands in controversy. Even in the absence of such recitals we think a presumption will be indulged in favor of the validity of the judgment rendered in cause No. 2525, that the record in that cause of which the court could take judicial notice upheld that judgment and the judgment rendered in this cause. 3-A Tex.Jur. p. 486, Sec. 391. Therefore, on the record which appellant has brought to this court, no error is shown. One function of a motion for summary judgment is to “pierce” the opponent’s allegations. (See article by Stayton, September 1950 Texas Bar Journal, supra.) This the trial court could do by taking judicial notice of the record in suit No. 2525 in connection with the allegations of plaintiffs’ petition. When so “pierced” the petition definitely reveals that there was no genuine issue as to any material fact between the parties and that the defendants were therefore entitled to a judgment as a matter of law under Subdivision (c) of Rule 166-A.R.C.P. Therefore, in the opinion of the writer, the trial court did not err in rendering the summary judgment and such judgment should be affirmed.
I have carefully examined the instruments above referred to which have been sent up in conformity with the order of the majority of the court. The judgment in cause No. 2525 when considered with the pleadings filed in that cause which the trial court had the right to consider, Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, wr. ref., reveals that the plaintiffs therein, who are appellees here, sought to foreclose against defendants Jones, the appellants here, liens on three separate tracts of land, No. 1 containing 4501 acres, No. 2, 19,488.95 acres and No. 3, 23,436.3 acres. In each of these tracts the land is described by survey number, certificate number, block number and number of acres, all of said land being situated in Brewster County. In tracts Nos. 1 and 2 the abstract numbers of surveys or parts of surveys are also given, but the abstract numbers are not given in tract No. 3. In these tracts parts of the surveys are given which in the absence of reference to abstract numbers would be insufficient to identify the land, but since the abstract number of each survey or part of the survey is given in tracts Nos. 1 and 2, we cannot say that reference thereto would not sufficiently thereby identify the land, see Reserve Petroleum Co. v. Harp, 148 Tex. 448, 226 S.W.2d 839; therefore the judgment in cause No. 2525 does not on its face show that it is void or that the land therein sought to be described is not the land involved in this suit. While the abstract numbers are not referred to in tract No: 3, it affirmatively appears that the 23,436.3 acres included in this tract is described in a deed of trust referred to in the pleadings, reference to the record of which is given and which the court could properly consider, Milner v. Schaefer, Tex.Civ.App., 211 S.W.2d 600, writ ref.; therefore it does not affirmatively appear that the judgment is void as to the portions of surveys described in part 3. If the deed of trust referred to describes these portions of the *352sections the same as the deed from Gilmer A. Morris and wife, Elizabeth Morris, to appellant Ernest Jones, dated August 1, 1945, recorded in Vol. 109, pages 19 et seq. of the deed records of Brewster County, a certified copy of which has been sent up, that deed does describe these portions of the sections with particularity. Since appellants referred to this deed in their pleading in this cause, and it appears from their pleading that the description therein is the same as that contained in tract No. 3 included in the judgment in cause No. 2525, and the portions of the surveys referred to in the judgment are particularly described by metes and bounds in the deed, we cannot say that it affirmatively appears the judgment is void.
I agree with the majority if it be conceded that the judgment in cause No. 2525 is properly a part of the record in this case that there was a genuine issue of fact between the parties as to- whether or not the judgment described the land for which appellant sued, and that a summary judgment is not warranted. I feel very strongly, ho-wever, that under the facts in this case the court should not have required a certified copy of this judgment to have been included in the record, and that it is not properly a part of the record before us. The filing of a certified copy of the judgment among the papers in the trial court for the purpose of showing the chain of title under Rule 428 did not constitute it a part of the transcript in this case, nor did it make it a part of the statement of facts since no evidence was taken and it was not introduced. Rule 798. Appellant could have made the certified copy of the judgment a part of the transcript by attaching it to his petition and exhibiting it, Blum v. Moore, supra, or by filing a controverting affidavit to defendant’s motion for a summary judgment and attaching it thereto. He saw fit to do neither and has presented a record to this court which presents nothing by which we can determine whether the trial court’s judgment was right or wrong. In such a case I think that the presumption should be indulged in that the judgment sufficiently identifies the land for which plaintiffs sue in this case, and that the judgment should therefore be affirmed.
I respectfully dissent.