(273 S.W.) right to choose the county to which it should be transferred. In event he declines to make such selection, his suit should be dismissed. The judgment of the trial court is reversed, and judgment here rendered as above indicated. Reversed. BLAIR v. CITY OF HOUSTON. (No. 1226.) 1. Municipal corporations ~485 (2)—Improvement certificate, referring to extrinsic evidence by which land can be identified, not void for uncertainty. A municipal improvement certificate was not void for uncertainty of description, where it furnishes means by which property on which lien is sought, by use of extrinsic evidence, can be identified; the description in certificate together with references therein being sufficient. 2. Municipal corporations 567 (6)-Description of land in petition to foreclose lien held not at fatal variance with improvement certificate. Description of land in petition to foreclose lien was not at fatal variance with description in municipal improvement certificate on which it was based, merely because reference to extrinsic evidence was necessary to complete description in latter, and hence deed and testimony of surveyor in aid of description therein were admissible. 3. Municipal corporations 485 (2)-Improvement certificate held not void for uncertainty as to land. Where a municipal improvement certificate recited that land was portion of lot 6 in block 32, S. S. B. B. addition to city of Houston, described fully in Deed Records of Harris County, Texas, and that J. M. B. was owner thereof, the description was not void, as so indefinite or uncertain on its face that it could not by aid of extrinsic evidence be made to apply to any definite land. 4. Municipal corporations 407 (2)-Requirement of uniform taxation not violated by assessments for local improvement. Const. art. 8, § 1, requiring uniform taxation of property, is an ad valorem tax provision only, within which city assessments for local improvements do not come. Sewall Myer, Claude Pollard, and Vinson, Elkins, Wood & Sweeton, all of Houston, for appellee. O'QUINN, J. Suit by the city of Houston, as plaintiff, in the district court of Harris county, against J. M. Blair, as defendant, to recover, for the use and benefit of the Creosoted Wood Block Paving Company, a personal judgment for money alleged to be due and owing by Blair to the said paving company, and also for the foreclosure of a lien claimed in favor of the paving company on a portion of a certain lot owned by Blair in the city of Houston. The suit was based upon what is commonly called an improvement certificate, which was executed and delivered by the city of Houston to the Creosoted Wood Block Paving Company under provision of the city charter, in consideration of labor and material furnished to the city by the paving company in paving one of the city's streets. This is the second appeal in this case. For opinion on first appeal, see 252 S. W. 882. After the case was there reversed and remanded, appellees filed an amended petition, upon which the case was tried. Blair answered by general demurrer, special exceptions, and numerous special pleas that we do not deem it necessary to mention, general denial, and specially that the provisions of the city charter, in virtue of which the city sought to charge him and his property for the labor performed and material furnished by the paving company, as shown by the certificate upon which the suit was based, are unconstitutional and void, in that such provisions are in violation of section 1, article 8, of the Constitution, which requires that taxation shall be equal and uniform. The case was tried before the court without a jury, and judgment rendered for appellee for the use and benefit of the paving company for $619.49, the full amount sued for, and for the foreclosure of a lien on the property of Blair described in appellant's amended petition. From this judgment, Blair brings this appeal. [1] Appellant's first proposition is: "A municipal improvement certificate, which describes the property upon which it seeks to fix a lien, as follows: 'Property situated in said city, in Harris county, state of Texas, fronting 65.4 feet on the north side of Lamar avenue, being lot No. part of 6 in block B No. 132, S. being fully described in Vol. the Deed Records of said county'-is insufficient to establish a lien upon any particular tract of land, and is void for uncertainty of description." Appeal from District Court, Harris Coun- S. B. B. addition to city of Houston, Texas, and ty; Chas. E. Ashe, Judge. Action by the City of Houston against J. M. Blair. From a judgment for plaintiff, defendant appeals. Affirmed. Tharp & Tharp and Stevens & Stevens, all of Houston, for appellant. , p. of The assignment is overruled. The description, as shown by the certificate, is: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Property situated in said city, in Harris county, state of Texas, fronting 65.4 feet on the north side of Lamar avenue, being lot No. part of 6 in block No. 132, S. S. B. B. addition to city of Houston, Texas, and being fully described in Vol. -, p. -, of the Deed Records of said county, and against J. M. Blair, the owner of said property." of a fence on the south side of Jones' line; thence north 54 deg. 15 min. west 66 feet and 6 inches to Jones' S. W. corner at a pipe in fence; and thence with San Jacinto St. south 35 deg. west 55 feet 9 inches to the beginning." L. J. Moskowitz, admitted to be a competent surveyor, testified for plaintiff that he had surveyed the Blair property in quesIt will be noted that the description of tion in block 132, city of Houston; that in the property set out in appellant's proposi-making the survey he had the description tion does not contain the words "and against as shown in the Weiss deed to Blair, and J. M. Blair, the owner of said property." that he located and made a plat of same, In plaintiff's amended petition, upon which which plat was in evidence, and which showthe case was tried, the property was described the land as described in appellee's petied as follows: tion and the portion of lot 6 described in the judgment. "A part of lot six (6) in block 132 on the south side of Buffalo Bayou, an addition to the city of Houston, fronting 65.4 feet on the north side of Lamar avenue and being all that part of lot 6 in block 132 lying within the following described boundaries: Beginning at an iron pipe on the present line of San Jacinto street at the S. W. corner of said block, and which is 232 feet from the curb of Lamar avenue, and then running with the N. line of Lamar avenue S. 55 deg. E. 66 ft., to a gas pipe in the center of the partition fence; thence N. 35 deg. E. with said fence 54 ft. and 2 inches to a pipe in the angle of a fence on the S. side of Jones line; thence N. 54 deg. 15 min. W. 66 ft. 6 inches to Jones' S. W. corner at a pipe in fence; thence N. 54 deg. 15 min. W. 66 ft. 6 inches to Jones S. W. corner at a pipe fence; and thence with San Jacinto St. S. 35 deg. W. 55 ft. 9 inches to the beginning and being all of said lot six (6) owned by the defendant J. M. Blair in said block, and being that part of said lot acquired by the defendant by deed from Mark Weiss of date April 1, 1904, which deed is recorded in vol. 205, p. 258, of the Deed Records of Harris County, Texas, to which deed and the record thereof reference is here made for all purposes, and being the identical premises described and intended to be described in special assessment certificate, and the other proceedings incidental and leading up to the issuance of said certificate and being the same property abutting on Lamar avenue, in front of which was paved by the Creosoted Wood Block Paving Company under and by virtue and in accordance with said contract with said city of Houston." Appellee introduced in evidence a deed from Mark Weiss to J. M. Blair, dated April 1, 1904, conveying a part of lots 6 and 7 in block 132, on the south side of Buffalo Bayou, the description being: "Parts of lots six (6) and seven (7) in block one hundred thirty-two (132) on the south side of Buffalo Bayou in the city of Houston, Harris county, Texas, bounded and described as follows: Beginning at an iron pipe on the present line of San Jacinto St., at the S. W. corner of said block, and which is 232 feet from the curb of Lamar avenue, and thence running with the north line of Lamar avenue south 55 deg. east 66 feet to a gas pipe in the center of a partition ience; thence north 35 deg. east with said It is seen that, in addition to the specific description of the land in question given in the certificate, the certificate stated that the land was fully described in the Deed Records of Harris County, and that J. M. Blair, appellant, was the owner of the property. By reference to the Deed Records mentioned, the deed from Weiss to Blair can be found recorded in volume 163, p. 214, with description as alleged in appellee's amended petition. Also reference to said records shows vendor's release from Weiss to Blair recorded in volume 205, p. 258, with same description as alleged in appellee's amended petition. The witness Moskowitz testified that he took the description of the Blair land as contained in the Weiss deed and located the particular land called for in the certificate. The description in the certificate, together with the references mentioned therein, is sufficient. It furnishes means by which the property, by the use of extrinsic evidence, can be identified. Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Eustis v. City of Henrietta, 90 Tex. 468, 39 S. W. 567; Pierson v. Sanger, 93 Tex. 160, 53 S. W. 1012; Taffinder v. Merrell, 95 Tex. 98, 65 S. W. 177, 93 Am. St. Rep. 814; Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48; Grace v. City of Bonham, 26 Tex. Civ. App. 161, 63 S. W. 158 (writ denied); Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631. erred in admitting in evidence the deed from [2] But appellant insists that the court Weiss to Blair and the evidence of the witness Moskowitz that he took the description in the Weiss deed and located the particular land in question, for the reason that there was a fatal variance in the description of the land in appellee's petition and the certificate. The contention is without merit and is overruled. Appellant insists that this court, on former appeal of this case, reported in 252 S. W. 882, held that the description in the certificate was insufficient to warrant the foreclosure of a lien on any particular property. Chief Justice Hightower, in the opin (273 S.W.) cussing appellant's third assignment of error, was discussing the description of the land in the judgment, not the description of the land in the certificate. We there held that the description in the judgment was not sufficient, and that the petition, if referred to in aid of the description in the judgment, would not aid same. The description of the land in the judgment and petition on the former appeal did not contain the words, "and being fully described in Vol. p. [3] Appellant's proposition under his third, fourth, and fifth assignments of error is that: [4] Lastly, appellant complains: "Under the Constitution of the state of Texas, taxation must be equal and uniform; hence, where a property owner has been subjected to general taxation, and out of this general taxation he has paid his pro rata of taxes levied for street improvements remote from his property, he cannot be lawfully assessed and be required to pay a special assessment for improving his individual property." In support of this contention appellant cites us to article 8, § 1, of the Constitution of this state. In the former appeal of this case appellant presented this identical question, and we overruled same; Chief Justice Hightower saying: "Assessments by municipalities under special charter granted by the Legislature of this state for local improvements are not inhibited or governed by the provision of the Constitution here invoked by appellant. That provision, as many of the courts of this state have construed it, has reference only to ad valorem taxation, and assessments for local improvements by municipalities, such as that in question here, do not come under that head," "A conveyance of land or an incumbrance on the same is void for uncertainty, unless the-citing many authorities. See Blair v. City writing itself identifies the land, or unless such of Houston (Tex. Civ. App.) 252 S. W. 885. writing upon its face expressly or by implica- The assignment is overruled. tion refers to some instrument, document, map, plat, record, or outside fact by which the land can, with reasonable certainty, be identified, and unless such means of identification are supplied in the description, the description cannot be aided by parol testimony." No error being shown, the judgment is affirmed. CRY v. J. W. BASS HARDWARE. (No. 3077.) May 7, 1925.) Appeal and error 1013-Finding of fact by trial court, supported by evidence, not set aside. Where there was evidence to support court's finding of amount of special damages allowable, Court of Civil Appeals is unauthorized, on conflicting evidence, to set finding aside. 2. Homestead 186-Special damages to crops held not subject to set-off in action on note. We take it that appellant's proposition is (Court of Civil Appeals of Texas. Texarkana. based upon the idea that the description of the land in the certificate in question is void upon its face—that is, that the description is. such that it cannot be aided by extrinsic evidence, and that this appears from a mere inspection of the certificate; otherwise the proposition is not a sound statement of the law. A deed or description of a parcel of land cannot be said to be void for uncertainty of description, unless from an inspection of the deed or instrument containing the description it appears that the description is so indefinite and uncertain that it cannot by the aid of extrinsic evidence be made to apply to any definite land. Pierson v. Sanger, 93 Tex. 160, 53 S. W. 1012. Certainly the certificate in question cannot be pronounced void upon mere inspection, for it cannot be said that it appears upon the face of the certificate that the land cannot be identified by the aid of extrinsic evidence. The certificate recites that the land is a A tenant may claim homestead right in portion of lot 6 in block 132, S. S. B. B. addi-premises let for a certain term under agreetion to the city of Houston, that it is de- ment evidencing intention to lease land. scribed fully in the Deed Records of Harris County, Texas, and that J. M. Blair is the owner of the land. These recitations furnish ample means of reference by which the land can be located. Where defendant pleaded that ungathered crops attached were exempt, as raised on homestead, and sought to recover their value, and special damage to crop from taking possession thereof, such special damages, being value of exempt property, was not subject to be set off, against plaintiff's judgment on note. 3. Homestead 83-Tenant may claim homestead in leased premises. 4. Homestead 74-Generally ungathered crops raised on homestead, although ma. tured, are exempt. Generally without exception, crops raised on homestead, and not gathered or severed from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the ground, although matured, are exempt from execution. "I find that the plaintiff levied a writ of attachment upon all of the corn and cotton grown 5. Landlord and tenant 5(1)-Agreement by the defendant for the year 1923; that said held to create "landlord and tenant rela tion." In view of Rev. St. art. 5475, agreement for leasing land for share of crops held to create relationship of landlord and tenant, supporting claim of homestead by tenant. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Landlord and Tenant.] 6. Landlord and tenant writ was levied on the 12th day of September, 1923. I also find that at the time of the levy there was 1381 pounds of said cotton that had been picked and was piled in the field. I find that none of the other cotton levied upon had been picked at said time, and I also find that the corn levied upon was in the field and had not been gathered. "I find that at the time of the levy there was 300 bushels of corn and 8 bales of unpicked cot323-Relation may ton in the field; that all of said corn and said exist, although rent payable in share of crop, 8 bales of cotton were ungathered, and were if cultivator had exclusive possession for fix-standing in the field at the time of the levy. ed time. Relation of landlord and tenant may exist, although rent is payable in share of crop, in case cultivator had exclusive possession of premises, with owner's assent for some fixed time. 7. Homestead 83-Distinction between "tenant" and mere "cropper," as entitling tenant to homestead, stated. The distinction between mere "cropper" and "tenant," entitling tenant to homestead rights in premises, is that tenant has possession of premises for fixed time, exclusive of landlord, and mere cropper has not; latter's status being that of employee, and possession being in owner. "I find that the defendant, D. O. Cry. was a married man, and at the time of the levy he was living upon the farm where the levy was made with his wife and one child; that said farm contained about 80 acres of land in the place upon which he was living. "I find that the defendant, D. O. Cry, was a farmer, that he owned no other homestead, that he owned no land at the time of the levy. and that he had planted and cultivated the crop levied upon, and that besides making said Crop he did no other work during the year 1923. which the defendant raised the crop which was "I find that John Rivers owned the land upon levied upon, and that he was occupying the same under an agreement with the owner by the terms of which the owner was to furnish the land, teams, tools, and feed, and the de [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Crop-fendant was to cultivate the land, and the crop per; Tenant.] 8. Homestead ~74-Crops severed ground not exempt. from Crops severed from ground, though raised on homestead, are not exempt from attach ment. was to be equally divided between the defendant and the said John Rivers. "I find that the defendant moved with his wife and child upon this place on the 3d day of January, 1923, and continued to reside upon said place until after the levy was made, and that during said time he did not occupy any Appeal from Rains County Court; J. S. other place as a homestead. Smiley, Judge. "I find that, by the terms of the agreement between Rivers and the defendant, the place Suit by J. W. Bass Hardware against D. was to be planted in corn and cotton for the O. Cry. Judgment for plaintiff, and defend-year 1923, but there were no limitations placant appeals. Reversed and rendered. ed upon the defendant as to how many acres should be planted in corn or how many should The appellee brought the suit against the appellant on a promissory note and to foreclose a chattel mortgage on a certain cow. At the time of filing the suit on September 12, 1923, the appellee sued out a writ of attachment and caused it to be levied on the following: "Eight acres ungathered corn in the field worked in 1923 by D. O. Cry. and 40 acres of ungathered cotton in the field of the said D. O. Cry raised during the year 1923." The defendant pleaded that the cotton and corn were grown on his homestead, and were exempt from attachment, and in reconvention sought to recover special damages for the levy of the attachment. be planted in cotton. "I find that, by reason of the levy of the writ of attachment the defendant was prevented from gathering his crop; that, by reason of said writ being levied, the defendant was stopped from gathering any part of his crop; that, soon after the writ was levied, an overflow ant's crops to the extent of $200; that if the spread out over the field and damaged defendwrit had not been served, the defendant could have and would have gathered part of his crops before said overflow came; that he could and would have gathered 3 bales of cotton before said overflow. "I find that neither the corn nor cotton levied upon with said writ of attachment was exempt to the defendant, but I find that both said corn and cotton was subject to be levied upon with said writ of attachment." Conclusions of Law. It was admitted that the defendant executed the note sued on and that it was unpaid. The chattel mortgage on the cow was admitted. The court's findings of fact are "I conclude as a matter of law that the plainas follows: tiff is entitled to a judgment for the amount (273 S.W.) of his note, principal, interest and attorney's | by the court, between the owner of the land fees, together with a foreclosure of his mort- and the appellant, the owner of the land was gage upon one cow and calf, described in said to furnish the land, teams, and tools, and feed mortgage, together with a foreclosure of his for the teams, and the appellant was to farm attachment lien upon the corn and cotton levied the land in cotton and corn. When matured ly divided between the parties. The "oneand gathered, "the crop was to be equalhalf of the crops" was to be paid "as rents" upon. "I conclude as a matter of law that the crops levied upon not being exempt property, that the plaintiff is entitled to offset the damages allowed defendant with the judgment which plain-to the owner of the land. It was further tiff recovered herein against the defendant." It is not shown by either the return of the officer or the evidence that the "1,381 pounds" of picked cotton was levied upon. T. R. Potts, of Emory, and Jones & Jones, of Mineola, for appellant. Rodes & Carter, of Emory, for appellee. agreed that the appellant was to have "full charge of the farm" and be free to determine "how many acres should be planted in cotton and how many should be planted in corn." The appellant was "to have the farm for the year 1923," beginning January 3, 1923. It appears that the particular farm consisted of "7940 acres of the N. G. Crittenden survey," and was inclosed with a fence. Fifteen acres was set off as a pasture, and the balance was all tillable land. There was a house on the land, and the appellant was to "live there with his family." LEVY, J. (after stating the facts as above). [1, 2] The appellant pleaded that the ungathered corn and cotton attached were exempt as raised on a homestead, and sought to have "the cotton and corn re-Appellant and his wife and one child ocstored to his possession," or, in the alterna- cupied the house. Appellant planted 15 tive, to recover their value. Appellant also acres in corn, and about 60 acres in cotton, sought to recover special damages occasioned and cultivated it without direction or suto the crop as resulting from wrongfully tak-pervision of any one. Appellant, it appears, ing possession thereof. The propositions pre- had exclusive possession of the farm, and sent, in effect, the two points in view: That (1) the special damages allowed by the court were inadequate; and (2) the crops being exempt from forced sale, the attachment should have been vacated and the possession of the corn and cotton restored to appellant, or judgment for their value allowed. there is evidence to support the court's finding of the amount of special damages allowable, this court would not be authorized, in view of the conflicting evidence, to set that finding aside. Such damages, being the value of exempt property, was not a subject of offset, and in this respect there was error in the judgment. As [3, 4] The next proposition, that the crops levied on were exempt, as raised upon homestead premises, should be sustained, we think, in view of the evidence. The attachment should have been vacated and a judgment entered for appellant for the specific property or its value. It is the settled law that a tenant, as appellant was, may claim a homestead right in premises let for a certain term under an agreement evidencing the intention to lease the land. Moore v. Graham, 29 Tex. Civ. App. 235, 69 S. W. 200; Phillips v. Warner, 4 Willson, Civ. Cas. Ct. App. § 147, 16 S. W. 423; Brewing Ass'n v. Smith (Tex. Civ. App.) 26 S. W. 94. And generally, without exception, the crops raised upon a homestead and not gathered or severed from the ground, although matured, are exempt from execution or attachment. Coats v. Caldwell, 71 Tex. 19, 8 S. W. 922, 10 Am. St. Rep. 725; Allen v. Ashburn, 27 Tex. Civ. App. 239, 65 S. W. 45; Speer on Marital Rights, § 402. the landowner was "not on this farm more than two or three times during the time, and before the levy was made." In the light of the agreement and the facts, all the elements appear necessary to constitute a lease or letting of the land itself for the entire period of the year 1923, and to create the relationship of landlord and tenant between the parties. The share of the crops, coming to the landowner, was to be delivered to him "as rents," and the appellant was to have "full charge" or exclusive possession of the farm, free of control of the owner, for the period of a year. The appellant's use of the land was not restricted, except to the extent that it should be planted in "corn and cotton" in such proportions and acreage as the appellant himself might determine. According to settled rules of law the relation of landlord and tenant may exist, although the rent is payable in a share of the crop, even to the extent of one-half, in case the cultivator of the land was to have and to hold the exclusive possession of the premises, with the assent of the owner, for some fixed time. 38 Cyc. 123; 24 Cyc. 1464; 36 C. J. p. 634; 16 R. C. L. § 58, p. 583. It seems to appear that the court was of the opinion that since the appellant was to have the farm on "halves," with teams and tools furnished him, the case came within and was ruled by the following cases: Webb v. Garrett, 30 Tex. Civ. App. 240, 70 S. W. 992; Ellis v. Bingham (Tex. Civ. App.) 150 S. W. 602; Watson v. Schultz (Tex. Civ. App.) 208 S. W. 958. There is a substantial difference between the situation in those cases and the situation in the present case. In [5, 6] By the terms of agreement, as found those cases the parties were each, as de |
