
    LEAL v. MOGLIA.
    (No. 5801.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 28, 1917.)
    1. Judicial Sales <&wkey;61 — Conveyance—Certainty of Description — Subvey.
    A sheriff’s deed description of property as onc-lialf of survey 671, being. 338% acres in a certain county, while not void, is insufficient unless aided by extrinsic evidence, where there might be other surveys of the same number in the same county, and the evidence indicates the acreage number was wrong.
    [Ed. Note. — For other cases, see Judicial Sales, Cent. Dig. §§ 119-122.]
    2. Trespass to Tby Title &wkey;>38(l) — Burden op Proof — Description oe Deed.
    In trespass to try title, plaintiff, claiming under a sheriff’s deed in which the description was insufficient without aid of extrinsic evidence, had the burden of offering such proof.
    [Ed. Note. — Eor other cases, see Trespass to Try Title, Cent. Dig. § 53.]
    3. Trial <&wkey;60(l) — Evidence Dependent on Preliminary Proof.
    In trespass to try title, a sheriff’s deed whose description was insufficient without aid of extrinsic evidence should have been excluded, where such extrinsic evidence was not offered.
    [Ed. Note. — For other eases, see Trial, Cent. Dig. §§ 141-143.]
    4. Appeal and Error &wkey;> 1177(5) — Disposition-Remand Without Entry of Judgment.
    Where a judgment for plaintiff in trespass to try title was reversed upon assignments relating to the admission of evidence, the case will be remanded for another trial, instead of entering judgment for defendant in the Court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Djg. § 4607.]
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Trespass to try title by Lod Moglia against Esteban Leal and Antonio Rios. Judgment for plaintiff, and defendant Leal appeals.
    Reversed and remanded as to appellant.
    Mann & Henry, of Laredo, for appellant. Greer & Hamilton, of Laredo, for appellee.
   MOURSUND, J.

Lod Moglia sued Esteban Leal and Antonio Rios in trespass to try title, seeking to recover survey No. 671, containing 640 acres of land, and survey No. 459, containing 53.5 acres of land, both of which surveys are described as situated in Webb county. Defendant Rios failed to answer. Defendant Leal answered by general demurrer and plea of not guilty. Judgment was rendered in' favor of plaintiff against Rios for one-half of survey 671, “containing 301.8 acres of land,” and survey No. 459, containing 53.5 acres of land, and against Leal “one-half of survey No. 671 containing 338% acres,” said' lands being described as situated in Webb county, Tex.

On May 4, 1914, Lod Moglia recovered a judgment against Leal and Rios, defendants herein, for $865.87 and costs of suit, as well as for foreclosure of an attachment lien, which had been levied upon the property described in the judgment as follows: “One-half of survey No. 671, being 301.5 acres of land, and survey 459, containing 53.5 acres of land, situate in Webb county, Tex.” — levied upon as the property of Antonio Rios, and one-half of survey 671, being 338%' acres of land in Webb county, Tex., as the property of Esteban Leal. Order of sale was issued upon said judgment which contained the same descriptions of the land to be sold. The sheriff’s return reciting the levy of said writ and the sale thereunder also contains the same description of the lands, and so does his deed to Lod Moglia, who became the purchaser at such sale. Certified copies of the judgment, order of sale with officer’s return and sheriff’s deed, were admitted in evidence over appellant Leal’s objections, and by appropriate assignments of error he attacks the rulings relating to the admission in evidence of said instruments, which constituted the entire evidence in the case. He objected on the ground that the description of the land was insufficient; that it did not describe the land with such certainty as the law requires, or in such manner as to identify it with any degree of certainty, nor does it refer to any record or other facts by which the land could be identified with any degree of certainty. The further objection was made to the deed that it was evident the bidders did not know what land was being sold, otherwise so much land would not have been required to be sold for such a small sum. The descriptions were not aided by any extrinsic evidence showing what land was owned by appellant at the time of the levy of the attachment, or that there was only one survey in Webb county numbered 671. We must therefore decide, in passing upon the admissibility of the instruments, whether the descriptions standing alone are sufficient.

The duplication of survey numbers may occur in a county, and unaccompanied by a reference to either the abstract number, certificate number, or name of the original grantee, a description alone by survey num-( ber shows no certainty that the land can be identified. In the instruments referred to the land is described as one-half of survey No. 671, being 338% acres of land in Webb county. This description indicates that the survey is one of 677 acres, but whether the half levied upon is an undivided half or a certain half is not described. The description of the lands of Rios levied upon, instead of aiding the description of the land levied upon as the property of Leal, makes it more uncertain, for it calls for one-half of survey 671, being 301.5 acres. According to such description, there is a survey No. 671 which contains 603 acres. However, taking this to be the same survey, it is apparent that it was supposed Leal owned 338% acres, and not one-half, and that Rios owned 301% acres, making 640 acres, which is the acreage described in plaintiff’s petition as embraced in the survey sued for. We are of the opinion that the sheriff’s deed and its supporting instruments cannot be declared void for uncertainty, for it is not apparent that it cannot be ascertained from the description therein given, aided by extrinsic evidence, what property was intended to be levied upon, sold, and conveyed. Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Pierson v. Sanger Bros., 93 Tex. 160, 53 S. W. 1012; Wilson v. Smith, 50 Tex. 365; Williams v. McComb, 163 S. W. 654; Edrington v. Hermann, 97 Tex. 193, 77 S. W. 408; Welles v. Arno Co-operative Irrigation Co., 177 S. W. 985; Waterhouse v. Gallup, 178 S. W. 773. But we conclude that, unaided by extrinsic evidence, the descriptions cannot ba said to have been sufficient to enable the bidders to identify it and know what was being sold. The duty rested upon the party who offered these instruments in evidence to show that they were entitled to probative value; that in fact they were sufficient, aided by extrinsic evidence, to identify the land. This duty was not performed, and, objection having been made to the instruments, they should have been excluded. We therefore sustain the assignments of error.

The judgment against Leal is for one-half of survey 671, containing 338% acres, which description is as indefinite as that contained in the instruments relied upon. It occurs to us the petition should describe the land sued for fully, in order that, if the extrinsic evidence is of such character as to render certain the description in the sheriff’s deed, a judgment can be rendered which will adequately describe the land recovered so that from such description the sheriff can deliver possession thereof.

We are asked to render judgment in favor of appellant. The only assignments relate to the admission of evidence, and we deem it proper to remand the cause for another trial.

The judgment, in so far as it relates to the appellant Leal, is reversed, and the cause remanded; but the remainder of the judgment will not be disturbed. 
      <§z»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     