
    H. A. Lewis et al. v. Thos. M. Dennis.
    (Case No. 515.)
    1. Practice.— When an original petition, in which a creditor seeks a foreclosure of a vendor’s hen on land, contains a general description of the same, but is deficient in certainty, a copy of which is served on the defendant, the plaintiff may file an amended petition containing a more specific description.of the land without having the defendant served with a copy thereof.
    2. Practice—Judgment.—In a suit on a promissory note, which declares the existence of a lien on land for its payment, if the defendant fails to answer, and no jury is demanded by the plaintiff, it is the duty of the clerk to calculate the amount due, and judgment may be rendered, and an order of sale issued, on no other evidence than the note sued on.
    3. Judgment.—When judgment is rendered against the principal in a note, and also against an indorser, on a petition which asks execution against the indorser only, in the alternative, it is error to render judgment directing execution against the property of both, jointly.
    
      4. Judgment foreclosing lien.—When judgment is rendered foreclosing a lien on an undivided interest in land, situate in several counties, the proper practice is to direct the order of sale to the sheriff of neither county as such, but to a commissioner appointed to sell.
    Error from Aransas. Tried below before the Hon. T. 0. Barden.
    Suit by Dennis against appellants, Lewis et al., in the district court of Aransas county, on a promissory note dated the 15th day of December, 1853, for $500 in coin, payable six months after date to Lyman B. Bussell or order, and signed by H. A. Lewis; the same upon its face purports to have been given in payment of an undivided one-ninth interest of a grant of five leagues of land to James Power and James Hewitson, situated on St. Joseph’s Island and Matagorda Island, in Aransas and Calhoun counties, and therein retaining a vendor’s lien on the interest as security for the payment of the note. The note was indorsed as follows: “August 4, 1874. Beceived on the within note one hundred dollars ($100) gold. Signed, Lyman B. Bussell.” Also as follows: “Pay to the order of 0. A. Bussell without recourse upon me. Signed, Lyman B. Bussell.” Also, “Pay to Thomas M. Dennis, or order. Signed, 0. A. Bussell.” Plaintiff in his original petition gave a general and insufficient description of the land, and prayed a foreclosure of the vendor’s hen. Appellants acknowledged notice and accepted service of the original petition. Subsequently the plaintiff filed an amended petition giving a more certain and particular description of the land. This amended petition was not served upon the defendants. On the 11th day of February, 18Y5, the same day upon which the amended petition was filed, the case was called for trial, and there being-no appearance or answer filed by defendants, a judgment by default was rendered against them for the amount due upon the note, which was assessed by the clerk. And also a decree foreclosing the lien on the one-ninth interest in the land described in the plaintiff’s petition, and directing an order of sale" to issue to the sheriff of Aransas comity, directing him to seize and sell the land, and apply the proceeds to the payment of the judgment. And in the event of a balance remaining unpaid, an execution was directed to be issued against the defendants.
    The following errors assigned, viz.:
    
      First The original petition did not give sufficient description of the land, and the amended petition was not served; therefore it was error to foreclose the hen upon the land.
    
      Second. The note sued on was not such an instrument in writing as authorized the assessment of damages by the clerk; and there was no proof offered of the identity of the land, etc., except the note.
    
      Third. The petition shows the land to be situated in Aransas and Calhoun comities, and the order of sale is directed to be issued to the sheriff of Aransas county only.
    
      Fourth. The decree directs the whole interest to be sold, and does not direct the same to be partitioned and then sold.
    
      Fifth. The decree directs said interest to be sold as an entirety, and not in lots of not more than forty nor less than ten acres.
    
      Sixth. The petition shows that Lewis was principal, and A. C. Russell indorser, on said «note. The decree directs execution to issue against defendants without reference to the indorser.
    
      Seventh. The land is not sufficiently described to identify the same.
    
      C. A. Bussell, for plaintiff in error.
    
      W. W. Dunlap, for defendants in error.
   Watts, Commissioner.

The amended petition did not set üp.a new cause of action, nor did it contain such new or additional matter as would require service thereof to be made upon appellants. The original petition contained a general description of the land, by giving the names of the original grantees, the number of leagues, the name of the islands upon which the same is located, the counties in which the same is situated, and the interest therein sought to be subjected to the lien. The amended petition contains only a more particular description of the land. Ward v. Lathrop, 11 Tex., 287; Spencer v. McCarty, 46 Tex., 213.

The statute provides that where process has been served according to law, and the defendant fails to answer on or before the fourth day of the term, the plaintiff may at any time thereafter have a final judgment by default against the defendant; and if the cause of action is liquidated and proved by an instrument in writing, the clerk shall, unless a jury is asked for by one or the other of the parties, assess the damages of the plaintiff. Pasch. Dig., art. 1508.

In this case the cause of action was liquidated and proved by an instrument in writing, to wit, a negotiable promissory note, and as neither party asked for a jury, the statute imperatively required the damages to be assessed by the clerk.

The supreme court, in the case of Niblett v. Shelton, 28 Tex., 548, which was a suit to recover the amount due upon a note and to foreclose the vendor’s lien upon the land for which it was given, held that the default was an admission by the defendants of the averments contained in the petition; and the averments so admitted being sufficient to entitle the plaintiff to a judgment for the amount of the note and a foreclosure of the vendor’s lien, it was not error to render the judgment and direct an order of sale to issue without other evidence than the note sued on. The note in that case, like the one in the present, retained upon its face a lien upon the land.

It is contended by appellants that there should have been a partition of the whole lands decreed, and after the ninth interest was segregated, that the hen should have been foreclosed thereon and the same ordered to be sold in lots of not less than ten and not more than forty acres. Such a partition was not essential to a valid decree of foreclosure upon, and a sale of that interest. The provision of the constitution of • 1869, relied upon by appellants, had no application to a case like the present. It is obvious that to enforce it in such case would be impracticable. And without further considering the scope and meaning of that provision, it is a cause of congratulation to know that it is no longer a part of the organic law.

The judgment is erroneous in directing execution to be issued against Lewis and Bussell jointly, oras a principal. The petition shows that Lewis was principal and Bussell indorser, and the judgment should have followed the prayer contained in the petition, by directing the execution to be first levied upon the property of Lewis, and in the event that was exhausted, then upon the property of Bussell.

The judgment is also irregular in adjudging the order of sale to be directed to the sheriff of Aransas county as such. The land decreed to be sold is situated in Aransas and Calhoun counties; it would have been the better practice to have appointed the sheriff, or some other person, a commissioner, to make the'sale of the entire one-ninth interest in the land.

For these errors and irregularities in the judgment, we are of the opinion the same ought to be reversed and reformed as indicated in this opinion, and the costs of this appeal should.be adjudged against appellee.

Beversed and reformed.

[Opinion delivered March 14, 1881.]  