Brown v. McKee , 80 Tex. 594 ( 1891 )

HENRY, Associate Justice

This suit was brought by appellee to recover upon a promissory note against John Faubian and to foreclose a vendor’s lien against M. Brown.

The land against which the foreclosure was sought is described in plaintiff’s petition as follows:

“One hundred acres of land out of the John Beal eighteen labors survey,- situated about six miles southwest from the town of Belton, in Bell County, Texas, more particularly described as follows, to-wit: Beginning at the southwest corner of said Beal survey, stone mound; thence south 71 east 621 varas to a stone mound on the edge of a mountain; thence north 19 east 2331- varas to stone mound, from which two small live oaks bear south 71 east 241 varas; thence south 71 east 248! varas to a stone mound in a thicket, from which a gum elastic bears south 21 west T vara; thence north 19 east 483 varas to a stone mound in Wm. Miller’s south line; thence south 19 west 7163 varas to the place of beginning.”

It is complained that this description applies to no particular land and does not therefore support the judgment rendered.

The petition, in addition to the above description of the land, also referred to certain deeds by which it had been conveyed.

If the last call alleged in the petition is reversed from the beginning which is called for by it, it will be apparent from it and the other calls of the survey given in the petition that the fifth call was entirely omitted in the above description, and that the omitted call, connecting the fourth with the sixth call, so as to inclose a survey of one hundred acres, will be a line extending from the fourth corner north 71 west 869} varas.

The omission was'supplied in the judgment, which gives the last named call as the fifth, and completes a survey having the quantity of land alleged in the petition. We find nothing in the record to indicate that the judgment was not in this respect, warranted by the evidence.

If the imperfect description given in it was deemed material the petition should have been excepted to.

The attention of the District Court was not directed to the matter either by an exception to the petition or by the motion for a new trial.

We think the judgment should be affirmed.

Affirmed.

Delivered April 28, 1891.