Pressley v. Testard , 29 Tex. 199 ( 1867 )

Willie, J.

This was a suit in the court below upon a

promissory note, and also to foreclose the vendor’s lien upon certain town lots in the town of Brenham, for a part of the purchase money for which the note was given.. The petition refers to the note, made part thereof, for a description of the property upon which the lien is sought to be foreclosed, and it is there described as lot No. 43, and a part of lot No. 90, in said town, sold and conveyed to plaintiff in error by William A. Browning, by deed of the same date with said note. This deed was not introduced in evidence, and does not appear among the papers of the case. To this petition a general demurrer and general denial were pleaded, and they were both afterwards withdrawn, and judgment rendered, by nihil dicit, against plaintiff in error. This judgment was for the principal and interest on the note, and it was ordered that the said lot No. 43, and part of lot No. 90, be sold as under execution, and the proceeds applied towards the satisfaction of the judgment. Pressley brings the case to this court by writ of error, and it is alleged by him that the judgment, so far as it forecloses the lien upon a part of lot No. 90, is too vague and uncertain. We think this objection well taken. It is impossible to ascertain from the pleadings or the judgment how much of this lot was intended to be described, or how much was to be sold in satisfaction of the judgment. The judgment is certainly very vague, and there is nothing in the record by which it can be rendered more certain. The deed referred to in the note was not before the court below, and there was no means of ascertaining how much of lot bTo. 90 was conveyed by Browning to the plaintiff" in error. The judgment conformed strictly to the pleadings, but the pleadings were themselves so indefinite, that no proper or valid judgment of foreclosure could he rendered upon them. The plaintiff' should have set out in his petition a definite description of the portion of lot ¡No. 90 upon which the lien was reserved, or have made the deed from Browning to Pressley a part of the petition.

A judgment could then have been rendered upon the ’ pleadings which would have been sufficiently certain to notify the sheriff as to what particular property he was to sell in satisfaction of it. But the present one is entirely too vague and indefinite for that purpose.

The judgment must be reversed, and the cause

¡Remanded.