On Motion for Rehearing.
[5] Appellants have filed a motion for rehearing in which they very earnestly contend that we erred in our former opinion in holding that the probate proceeding through which appellees Gallup and the East Texas Oil Company claim title are not void for want of sufficient description of the land sold thereunder. It seems to be conceded in the motion that if the sale had been voluntary the description would be sufficient, but the contention is made that such description cannot be held sufficient in an involuntary sale. In our former opinion we held that the rule applicable to the description in question was that:
“When a deed conveys a certain number of acres, without describing the land conveyed, to be taken out of a larger tract described, the grantee becomes by his deed a tenant in common, having a fractional interest, represented by a fraction whose denominator is a number equal to the number of acres in the larger tract described, and whose numerator is a number equal to the number of acres conveyed. The grantee acquires such fractional interest in every acre of the larger tract.”
We agree with learned counsel for appellants that this rule cannot be applied to involuntary sales consistent with the decisions in a number of our earlier cases, but we understand it to be now settled law in this state that a description that would be sufficient in a voluntary conveyance is sufficient'in an administrator’s or sheriff’s deed. If the description contained in the written instrument, considered in the light of surrounding facts shown by extrinsic evidence, is sufficient to identify the property intended to be sold, the'conveyance" is sufficient, it matters not whether the sale be voluntary or involuntary.
In Hermann v. Likens it is expressly held (and this holding is not questioned by appellant’s counsel) that a description which would be sufficient in a voluntary conveyance to identify the property intended to be conveyed would necessarily be sufficient in a sheriff’s or administrator’s deed, and that there are intimations of a contrary doctrine in some of the former opinions of our Supreme Court. Norris v. Hunt, 51 Tex. 609; Brown v. Chambers, 63 Tex. 131. The point was probably not definitely decided in those cases. The court in the Hermann Case also quotes with approval the following paragraph from the opinion of the Supreme Court of the United States in the case of White v. Luning, 93 U. S. 514, 23 L. Ed. 938:
“In regard, however, to the description of the property conveyed, the rules are the same, whether the deed be made by a party in his own right or by an officer of the court. The policy of the law does not require courts to scrutinize the proceedings of a judicial sale with a view to defeat them. On the contrary, every reasonable intendment will be made in their favor, so as to secure, if it can be done consistently with legal rules, the object they were intended to accomplish.”
When we consider the description in the probate proceedings under which the land in controversy in this suit was sold in connection with the deed to the decedent, which was then on record, conveying to him three definitely described tracts of land in the Mudd survey, containing in the aggregate 2,181 acres, less an undefined 100 acres attempted to be reserved in said deed, and the evidence showing that this was all the land owned by the estate of the deceased on said survey, we think there can be no doubt as to the identity of the land intended to be sold.
The administrator applied for an order to sell 2,081 acres on the Mudd survey. The court directed him to sell 2,081 acres on the Mudd survey, and the administrator advertised that he would sell 2,081 acres on said survey. A deed to the deceased was on record in the county conveying to him 2,181 acres on said survey, less 100 acres, and this was all of the land owned by the estate on that survey. Gan there be any doubt upon these facts that the administrator and the court intended by the application, order of sale, and advertisement to sell 2,081 acres of the land described in the deed under which the-estate held, and is it not equally clear that all persons interested in the estate and all bidders at the sale must have known from the description the identical land that was intended to be sold? Why, then, should the description be held insufficient? The fact that the reservation of the 100 acres in the deed to the deceased was void for uncertainty, and the estate in fact owned all of the 2,181 acres, should not affect the question of the sufficiency of the description in the probate proceedings. It is manifest that the administrator thought the estate owned only 2,081 acres, and therefore only asked to sell that number of acres. If the application and *778order of sale liad in express words described the land as an undivided 2,081 acres of the 2,181 acres described in the deed to the deceased, we think it clear the description would have been sufficient, and we think the description given in the order of sale, considered in connection with the deed to deceased Waterhouse, shows that it was the intention to sell an undivided 2,081 acres of the 2,181 described in the deed.
In the case of Boyce v. Hornberger, 29 Tex. Civ. App. 337, 68 S. W. 701, cited by appellants, the land levied upon and sold was described as “all the right, title and interest of Robert P. Boyce in 2,300 acres of land, a part of the Benjamin, Page headright.” The evidence showed that, at the time this levy and sale were made, Boyce only owned an undivided one-half interest in an undivided 2,800 acres on the Page survey. Manifestly the description in the sheriff’s deed above set out could not be made to apply to any land owned by Boyce on the Page survey, and this court held the deed void because the description was insufficient. We think that case is easily distinguished from this one.
[6] Appellees Gallup and the Texas Oil Company also present a motion for rehearing in which they contend that we erred in not holding that the administrator’s sale passed title to the 2,181 acres described in the deed to the deceased Waterhouse. This contention cannot be sustained. It is, we think, manifest that the administrator supposed that the estate only owned 2,081 acres of land and thought, when he sold the 2,081 acres, he was selling all the land on the Mudd survey owned by the estate, but his mistake in this regard could not have the effect of divesting the estate of the title to the 100 acres which was not included in the application or order of sale.
[7] Appellees further contend that we erred in holding that, because the order of confirmation and the administrator’s deed described the land as 2,031 acres, title passed by said sale to only 2,031 acres. We think this contention should be sustained. The application and order of sale having described the land as 2,081 acres, we think the discrepancy in the acreage stated in the order of confirmation and the administrator’s deed should be regarded as a clerical error. The number of acres is stated in figures, and it is much more probable that in recording these orders and the deed the figures “81” should have been written “31,” than that the court and the administrator after having ordered and advertised the sale of 2,081 acres should have only sold 2,031 acres. McBee v. Johnson, 45 Tex. 641.
It follows from what has been said that the motion of appellants for rehearing should be overruled, and the motion of appellees granted to the extent of changing our judgment in their favor from 2031/2181 to 2081/2181 of the land in controversy; and it has been so ordered.