The controversy in the case is entirely respecting the foreclosure of the lien under the deed of trust on the 97 acres of land on the R. M. Lindsay survey. The deed of trust describes by metes and bounds the two tracts of land upon which the lien is given, and then recites as follows:
"Save and except 23 acres of the last-described 120 acres of land (referring to the trust on the R. M. Lindsay survey) which together with 177 acres of the J. Collom H.R. survey lying directly west of this tract is here now designated as my homestead, my dwelling where I now live being on the 177 acres of the J. Collom H.R. survey in Bowie county, Tex."
The point made against the right of foreclosure is, as urged by the appellee, the attempted designation of the homestead, as was done, of 177 acres of the J. Collom survey and 23 acres of the 120-acre tract of the R. M. Lindsay survey, is legally abortive for want of description, and therefore the deed of trust was ineffective and void as to all of the 120 acres on the R. M. Lindsay survey; the proof showing all of the said 120-acre tract to be the homestead of J. M. Mahone and wife.
According to the evidence there were two properties, in separate and distinct tracts, but contiguous to each other, aggregating 297 acres of land. There was a 177-acre tract on the J. Collom survey, and a 120-acre tract on the R. M. Lindsay survey. Both tracts were used and cultivated as one farm by J. M. Mahone. The same amount of cleared land was on each tract, which was "between 75 and 80 acres" on each tract. The barns, three tenant houses, the orchard, and garden were near the dwelling, and all on the 120-acre tract. The dwelling was located near the south boundary line of the 120-acre tract. As stated, "the front gate is right on the line, and the house is right at the front gate." In such special circumstances the husband had the right under the law, as conceded, to designate and set apart the homestead of 200 acres, and to do so without the concurrence of the wife. And he could fix the excess of 97 acres over the 200 acres on either the 120-acre tract or the 177-acre tract; the right being fairly exercised toward the wife, and the residence being included in the homestead designation. It can scarcely be doubted from the evidence that the setting apart of the homestead of 200 acres, as done, was not unjustly or *Page 280 unfairly done toward the wife and family. The 177-acre tract, as shown, "makes better crops than the other (the 120-acre tract); it is better land." And the residence, barns, three tenant houses, the orchard, and garden can easily be encompassed within the boundaries of the 23 acres on the Lindsay survey. As thus set apart, the homestead of 200 acres forms practically one farm compactly located and conveniently situated with reference to the residence and tenement buildings and the orchard and garden used in connection therewith.
Was the designation void for want of description? The statutory requirement is that the instrument designating the homestead shall contain —
"A description by metes and bounds, or other sufficient description to identify it, of the homestead so claimed by him, stating the name of the original grantee and the number of acres, and if more than one survey, the number of acres in each." Article 3842, Rev.Stat. of 1925.
The description of "177 acres of the J. Collom H.R. survey of land in Bowie county, Tex., lying directly west of this tract (the 120-acre tract on the R. M. Lindsay survey)," could in this case meet the statutory requirement of "or other sufficient description to identify it." It is susceptible of identification by extrinsic proof. As to the 23 acres, the legal effect of the deed of trust is first to be determined, for by the deed of trust J. M. Mahone conveyed the entire 120 acres by metes and bounds "save and except 23 acres of the last-described 120 acres of land which, together with 177 acres of the J. Collom H.R. survey lying directly west of this tract, is here now designated as my homestead." If the exception or reservation be legally valid as against the grantee in the trust deed, then the 23 acres did not pass to him under the deed of trust; otherwise, because of uncertainty of description, the exception would legally fail. Waterhouse v. Gallup (Tex.Civ.App.) 178 S.W. 773; De Roach v. Clardy, 113 S.W. 22, 52 Tex. Civ. App. 233. It was the clearly expressed intention of J. M. Mahone to pass title to the whole of the 120 acres definitely described in the deed of trust less the 23 acres reserved. And it is the clear intention, considering all the wording, to exclude from the operation of the deed of trust the 23 acres as part of "my homestead." In effect the 23 acres excepted is described as being "my homestead" part of the 120 acres to include 23 acres. The parties evidently so intended. The very mention of "my homestead," in connection with the 23 acres, raises a fair presumption that the excepted 23 acres should include the family residence and buildings connected therewith. In such case the intent of the parties as to the locality of the 23 acres becomes a question of fact to be determined by the facts existing at the time of the execution of the deed of trust. The dwelling was situated on the south boundary of the tract described in the deed of trust, and, in the absence, as here, of anything indicating a different boundary, the law would determine that the 23 acres should be laid off in the south end of the tract in a convenient and useful form so as to include the dwelling and buildings and grounds used in connection therewith. It is evident that it could be so laid off and bounded. It is true that the deed of trust recites that "my dwelling house where I now live" is situated "on the 177-acre tract," but that is a statement of mere locality or the residence, not controlling against the true fact of its location and the mind and intention of the parties in respect thereto. Such recital was a clear mistake of fact in matter of description as to the precise locality of the residence. And it is evident that the parties did not intend to pass title to the residence and grounds used in connection therewith. It is concluded that the description of the 23 acres excepted is not so vague and uncertain as to be legally ineffective and void, and therefore the exception should not be invalidated.
A description is certain which can be made certain. And in this case what was intended to be excepted is not a matter of mere conjecture. The family residence was intended to be reserved, together with the grounds around it fixedly given as 23 acres, and the location of the residence on the ground affords sufficient conclusions that there was error in holding the deed of trust void as to the entire 120 acres, and that the appellant was not entitled to a foreclosure as to the 97 acres.
The judgment is reversed, and the case must be remanded to the district court instead of judgment being rendered here, in order to give the appellee the special right to select the particular boundary or form of the land constituting the 23 acres located on the south line of the tract including the residence, barns, orchard, garden, and buildings. The appellant by his pleading agrees that appellee can have 23 acres surveyed on the ground in an advantageous way and form. Upon the failure or refusal of the appellee to make the particular selection of boundary and form on the south line by a time appointed by the court to do so, then the court should proceed to have it designated and allow a foreclosure on the 97 acres excess not included in the special field notes of the 23 acres so designated. *Page 281