Appellee Mudgett and otters brought suit in trespass to try title, against
J. F. Dunaway is the common source of the title relied on by both parties, and the controversy is as to the effect a mistake in the description of the property in appellant’s •chain of title should have on the respective rights of the parties. Appellant claims title under Dunaway as follows: Dunaway, on May 8, 1912, executed and delivered to appellant a deed of trust to secure it in the payment of a certain note, whereby he conveyed, by the terms of said deed of trust as written, lot No. 5 in said block No. 201. Dunaway at this time only owned one lot, to wit, lot No. 6, in said block, which was the southeast corner lot of the block, and the deed of trust was intended by the parties to cover this lot. JBy reason of an error of numbering in a copy of the map, to which the parties referred when preparing the deed of trust, and which showed the southeast corner lot of said block to be No. 5, which was really the southwest corner of the block, a mistake was made in the deed of trust and said lot No. 5 conveyed thereby instead of lot No. 6. Judgment of foreclosure of this deed of trust was had, the property advertised and sold under order of sale and conveyed to appellant by sheriff’s deed dated June 3, 1913. The same mistake of description was carried through all these proceedings. Apipellant was shown to have been in possession of said property from about March or April, 1915. Appellee’s title is as follows: An abstract of judgment against Dun-away, in favor of Joyce-Prewitt & Co., a corporation, was recorded in the proper records of Potter county, bn February 28, 1913. This judgment was assigned to appellees Mudgett and his associates. This indebtedness was subsequently renewed, time of payment extended and included in a note dated March 29, 1913, payment of which was secured by deed of trust of even date, executed by Dun-away, whereby he conveyed to the trustee named therein said lot No. 6 and other property the deed of trust reciting that the lien of the judgment should continue in effect. A judgment of foreclosure of this deed of trust was rendered in favor of appellees against Dunaway, December 10, 1914. Dunaway •died, and his wife qualified as administra-trix, in March, 1915. On application to the probate court, it was ordered that the ad-ministratrix be allowed to convey the property against which said indebtedness had been foreclosed to appellees in satisfaction of gaid judgment, and, in accordance with such order, the said administratrix conveyed said lot No. 6, together with other property, to the said appellees, by deed dated August 17, 1915.
The appellant, in addition to the plea of not guilty, by special answer alleged the facts with reference to the mistake in description in the various instruments and proceedings as above set out. No specific reference to reformation is made in said answer; appellant asserting that by reason of such facts it thereby acquired the superior legal and equitable title to said lot No. 6. The answer, however, contained a prayer for general, legal, and equitable relief.
[1] The mere showing of a mistake in connection with an instrument offered in support of a title does not authorize the court to give to such instrument the effect it would have but for the mistake. The mistake may only be inquired into and reformed in a direct proceeding appropriate to such relief. Clark v. Gregory, 87 Tex. 189, 27 S. W. 56; Davis v. Kirksey, 14 Tex. Civ. App. 380, 37 S. W. 994. This does not mean that the instrument may not, upon proper pleading and if the proper parties are before the court, be reformed and given effect in the trespass to try title suit. The defendant, whose title is dependent upon the correction of the mistake, can properly, if the proper parties are before the court, seek a reformation of the instrument for the purpose of relying upon it to support his title.
L23 While the defendant in this case does not pray for reformation of the instruments necessary to establish its title, nor state the facts upon which such relief might be given in the form of a cross-action, yet such facts are specially pleaded in defense, and under the prayer for general relief we should, we think, regard such pleading as sufficient to authorize the reformation of such instruments if defendant would be otherwise entitled to such relief, Etna Ins. Co. v. Brannon, 99 Tex. 391, 89 S. W. 1057, 2 L. R. A. (N. S.) 548, 13 Ann. Cas. 1020.
[3] Ordinarily, all parties executing an instrument and all parties to a judgment are necessary parties to a proceeding to reform them. Neither Dunaway, the maker of the deed of trust and the defendant in the judgment of foreclosure, nor his administratrix or heirs, were parties to this suit of trespass to try title. This lack of parties would perhaps be fatal to any right of reformation of such instruments in this suit. But, if we assume that under the circumstances the representatives of Dunaway were not necessary parties to a reformation of such proceedings, it will be next in order to decide whether the court could, in this procedure, reform the judgment of foreclosure and the sheriff’s deed also, which would be necessary before appellant can establish its title. The weight of authority is that where a mistake of description made in a mortgage has been carried through the foreclosure proceedings, and the sheriff’s deed, the purchaser cannot
“It is difficult to perceive on what recognized principle of equity the court was justified in amending the sheriff’s deed.”
The question has not been directly decided by our courts, though in the case of Silliman v. Taylor, 35 Tex. Civ. App. 490, 80 S. W. 651, it was recognized that in a suit brought for such purpose it was proper to have a reformation of the proceedings down to the foreclosure and proceed anew with the foreclosure sale. We hold that the sheriff’s deed cannot be reformed in this proceeding, and, as the defendant showed no title without it, the court below properly entered judgment for the plaintiffs, since they showed good title from Dunaway, the common source.
No conclusions of law or fact were filed by the court below, and, as the judgment can be sustained on this ground, it is not necessary to consider other theories on which appellees claim the judgment may be sustained, and this general conclusion disposes of all appellant’s assignments of error.
Affirmed.
null.
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