I concur in affirmance of the trial court's judgment insofar as it denied appellant any relief on his cross-action for specific performance and awarded appellee and undivided 2/3 interest in and to survey 63 containing 640 acres. In my opionion the judgment, insofar as it attempts to award to appellee an undivided 23/24 interest in and to the other five sections of land, is void because the description of the land is insufficient to enable an officer to place appellee in possession thereof without exercising judicial functions.
It is true that appellant did not raise this point in the trial court and has not raised it here except by his argument. He does present a point that the court erred in failing to sustain his motion for judgment when plaintiff rested his case.
A reference to the statement under this point shows that at the close of plaintiff's case defendant read to the jury exhibit No. 47 and then orally moved the court as follows: 'We desire to move at this time for judgment on the plaintiff's case and the lease contract which have been offered in evidence.' At the close of all the evidence the appellant moved the court to instruct the jury to return a verdict in his favor compelling and requiring appellee to tender a good and sufficient deed conveying to appellant the lands and premises described in plaintiff's first amended original petition and cross-plaintiff's first amended original answer.
If the oral motion made at the close of plaintiff's testimony based the right to an instructed verdict on any other ground than the exercise of the option contained in the lease, the filing of the motion above stated at the close of all the evidence waived any error, if error there was in refusing to instruct the verdict in favor of defendant at the close of appellee's testimony. Furthermore, appellant made no assignment of error in his motion for a new trial challenging the court's failure to direct a verin his favor on the ground of the insufficiency of the pleading and the evidence to identify the land in controversy. However, the judgment rendered is before us for review and revision. If the judgment is so indefinite as to the description of the land that an officer cannot place appellee in possession of any land without exercision of any land without exercising judicial functions, such judgment is unenforceable court to so declare and set it aside. Tex.Jur. 3a, p. 89, Sec. 69. This is so even though no error was assigned in the trial court or in this court on the ground of the insufficiency of description of the land. A judgment which is fundamentally erroneous and unenforceable should not be permitted to stand. It is the duty of this court to enter the judgment that should have been entered by the trial court, Rule 434, Texas Rules of Civil Procedure, and we should not enter an erroneous of improper judgment because the error was not pointed out by an assignment. This is the practice adopted by the Supreme Court before the adoption of the Rules of Civil Procedure. Clement v. First Nat'l Bank, 115 Tex. 342,282 S.W. 558, loc. cit. 560(7). Such practice was followed by other Courts of Civil Appeals prior to the adoption of the Rules Stewart v. Collatt, Tex.Civ.App., 111 S.W.2d 1131, and has been followed by such Courts since the adoption of the new Rules. Hatton v. Burges, Tex.Civ.App., 167 S.W.2d 260, (Wr. Ref. W. M.) Humble Oil Refining Co. v. Manziel, Tex.Civ.App., 187 S.W.2d 149, (Wr. Ref. W. M.)
Reproduced is the description of one of the sections involved as it appears in plaintiff's first amended petition, on which the case was tried. *Page 879
"Abstract Cert. Survey Block Original Grantee Acres County ____________________________________________________________________ 882 70 59 D-6 M. K. T. Ry. Co. 640 Terrell
Beginning At the S.E. Cor. of Sur. No. 58 Block D-6 Script No. 69, this Co. for N.E. Cor. of this Sur. Thence W. 1900.8 vrs. to a stone mound. Thence S. 1900-8 vrs. to a stone mound. Thence E. 1900.8 vrs. to a stone mound. Thence N. 1900.8 vrs. to the Beginning."
This description is typical of the description of each of the other sections, the abstract and certificate numbers being different but the acreage and original grantee being the same and the length of the calls in the field notes being identical. The issue submitted inquiring as to plaintiff's peaceable and adverse possession upon the answer to which judgment was redered described these sections as follows:
"Abstract Cert. Survey Original Grantee Acres. _____________________________________________________ 863 51 21 M. K. T. Ry. Co. 628 864 52 23 " 589 865 53 25 " 628 868 56 31 " 580 882 70 59 " 109"
Plaintiff introduced in evidence patents from the State of Texas in which each section is described as in his petition. The field notes contained in these patents are the only field notes appearing in the record. Over defendant's strenuous objection plaintiff also introduced the following instruments:
'A certificate from the Commissioner of the General Land Office of the State of Texas, dated November 28, 1919, in which the commissioner certifies the estimated area of the surveys in question, free of conflict, is as follows:
"Section 21, 521 acres; do 23 589 do do 25 628 do do 31 580 do do 59 109 do";
A plat of the land surveys certified by the Commissioner of the General Land Office on May 30, 1919 to be a correct copy of the map of Terrell County dated September, 1905, then in use as the official map of said County 'showing part of Block D-6 as recognized by this office, to which has been added in red the estimated acreage by scale from map that portion of Surveys Nos. 21, 23, 25, 31 and 59 remaining on the Texas side of the Rio Grande River.'
(The estimated acreage in red in each of said surveys appearing on this plat is the same as that certified as being free from conflict in the certificate of November 28, 1919) State Abstract Book No. 8 designated 'Abstract of All Original Texas Land Titles Comprising Grants and Locations to August 31, 1941; in which the acreage of the Surveys in question appears as follows:
"Sur. Land Office Vol. 8 _________________________ 21 521 23 589 25 640 59 640 31 580";
The petition in cause No. 1869, styled State of Texas v. C. T. Smith, et al. in the District Court of Terrell County, filed June 30, 1936 for the foreclosure of lien for delinquent taxes for the year 1932 upon Surveys Nos. 21, 23, 25 and 59, and for the years 1933 and 1934 upon Surveys Nos. 21, 23, 25 59 and 31. The description of the acreage on which the lien was sought to be *Page 880 foreclosed for the year 1932 and for the years 1933 and 1934 was as follows:
Tax Suit Tax Suit Petition Petition "Survey 1932 1933-34. 21 560 628 23 600 589 25 600 628 59 109 109 31 580";
The Abstract and Certificate numbers are also given as is the name of the original grantee the same as in plaintiff's amended petition. The petition also alleges that the land is in Terrell County, but the Block Number is not alleged. The judgment rendered in said suit on August 10, 1936, foreclosing tax lien and ordering the property sold to satisfy same, in which the property is described the same as in the petition for the years 1933 and 1934 and in special issue No. 1 submitted to the jury inquiring as to plaintiff's peaceable and adverse possession and in the judgment rendered by the trial court in this suit, viz.,
"Abstract Cert. Survey Original Grantee Acres County
863 51 21 MK T Ry. Co. 628 Terrell 864 52 23 MK T Ry. Co. 589 Terrell 865 53 25 MK T Ry. Co. 628 Terrell 868 56 31 MK T Ry. Co. 580 Terrell 882 70 59 MK T Ry. Co. 109 Terrell;"
in which it will be noted that the Block number is also omitted.
It is at once apparent that by the jury's finding plaintiff failed to establish his peaceable and adverse possession of all the land in each Section as described in his petition; that if the finding established any peaceable and adverse possession such possession was to a portion of such land only; also that the judgment based on such finding purported to award to plaintiff a portion of such land only. Appellees do not contend otherwise; their contention is that since plaintiff in his petition described the surveys by abstract, certificate, survey and block numbers, and sought to recover the entre surveys, each of which called for 640 acres described by metes and bounds, such descritption as limited by the instruments above referred to and introduced by him warranted a recovery of the acreage of which the jury found he had had peaceable and adverse possession for the required statutory period, and which was included in such surveys as described in his petition and which constituted all the acreage remanining in such surveys after eliminating conflicts with prior patents and land which had been lost to Texas and was located in Mexico because of erosion and accretion due to the change in the course of the Rio Grande River.
We may assume, without deciding, that these instruments which plaintiff introduced were sufficient to establish an adequate description of his claim to the acreage awarded him by the judgment and to warrant the inference that the acreage found by the jury's verdict to have been in the peaceable and adverse possession of plaintiff constituted all the acreage remaining in the respective surveys, after conflicts with prior patents and land originally in such surveys and which became a part of Mexico because of the change of course of the Rio Grande River had been eliminated. Nevertheless, plaintiff could not recover unless he went further and offered proof as to the actual location of such acreage. The applicable rule of law is thus stated in Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, loc. cit. 479(3), 107 S.W.2d 564, 111 A.L.R. 1152 (Com.App., Op. adopted): '(3) Since Monroe placed the title to section 103 in issue in cause No. 854, the burden rested upon him not only to exhibit to the court evidence establishing his chain of title to the land involved, but he was also required to offer sufficient proof as to the actual location of the land so that an officer seeking to enforce a writ of possession under a judgment in his favor could locate the same and restore him to the possession from which he *Page 881 had been ousted without such officer being required to exercise judicial functions. In other words, it was Monroe's duty to furnish proof identifying the land described as section 103 with such certainty that the court might determine whether Hickox had in fact ousted him from the possession thereof. The court was not justified in rendering a judgment, the effect of which would have been to take land from the possession of Hickox, unless the location of said land was definitely fixed upon the ground. A failure of Monroe to meet the burden thus imposed entitled Hickox to remain undisturbed in the possession of the land claimed by him. The judgment rendered did not disturb Hickox' possession. The statute specifically provides that such judgment shall be conclusive, not only as to the title established, but as to the 'right of possession established in such action."
Certainly this language, which was appled to a section to which the claimant had established a record chain of title, is all the more cogent when applied to a chain of title grounded on peaceable and adverse possession under the ten year Statute of Limitations. The only land which can be definitely located by the evidence in this record is the entire 640 acres described by the field notes of Surveys incorporated in the patent to each section. This is the only land that the Sheriff with a corps of surveyors could put appellee in possession of without exercising judicial functions, and he would then be in possession of land in Mexico. These field notes are entirely inapplicable to the acreage in each section of which the jury found plaintiff had had peaceable and adverse possession for a period of ten years prior to February 23, 1948. The judgment attempts to award a portion of the acreage out of the 640 acres in each section without any description of the portion awarded. In this respect it is a void judgment. Adams, et al. v. Duncan, et al, 147 Tex. 332, 215 S.W.2d 599. Therefore, since plaintiff failed to offer any evidence by which the acreage in each survey as limited by the instruments referred to, introduced by him, could be located, he failed in his action.
The judgment, insofar as it awards appellee Nowery J. Smith an undivided 23/24 interest in Surveys 21, 23, 25, 31 and 59 is fundamentally erroneous, and in my opinion requires that the cause be reversed and remanded as to these five sections.