SUTTON, Justice.
The suit in trespass to try title was brought by Nowery J. Smith against the appellant, John Martin, and numerous other defendants to recover six surveys of land situated in Terrell County. Martin filed a cross-action against Nowery J. Smith and 1C. T. Smith for specific performance of a contract of sale based upon the provisions of a lease contract between Martin and C. T. Smith, which contract was alleged to háve been made between Martin and Smith, acting through his agent A. E. Creigh, Jr.
Martin and another defendant were personally served with citation; some six or eight others, non-residents, were served with notice to serve non-residents, and the remaining defendants were served by publication.
' At the .conclusion of the evidence the trial court instructed a verdict agáinst Martin on his -cross-action. The court also [876]*876instructed a verdict in favor of Nowery J. Smith for the title and possession of a two-thirds interest in one section sued for, and submitted an issue oí limitation on the part of Nowery J. Smith under the ten-year statute, Vernon’s Ann.Civ.St. art. 5,510, as to a 23/24ths interest in the other five sections. The verdict was favorable to Smith and upon the instructions and verdict judgment was rendered in favor of Nowery J. Smith for the interests indicated. From that judgment John A. Martin alone has appealed.
The lands were described in plaintiff’s petition by abstract, certificate, survey and block numbers, Original grantee County and ás containing ■ 640 acres each. Each survey was further described by field notes, giving to each side 1900.8 varas.
In the issue submitting plaintiff’s claim of title by limitation and in the judgment the lands were described by Abstract, Certificate, Survey, Original Grantee, County of Terrell and as containing 628, 589, 628, 580 and 109 acres respectively.
The lands in Martin’s lease and his cross-action were described as in the special issue and judgment.
Martin has twenty-one points of error and his position in the cáse might be easily overlooked and misunderstood. As we have already noted he took possession of the lands as the tenant of C. T. Smith under a written lease between himself and Smith, which lease he introduced in evidence. C. T. Smith is the predecessor in title of Nowery J. Smith. Martin attorned to Nowery J. Smith. Martin did not deny nor dispute the title of Nowery J. Smith which he might not do as the tenant of Smith, but sought only to acquire his title by virtue of a claimed contract to purchase the same. The court determined that issue against Martin and instructed a verdict against him on his cross-action. The verdict was instructed on the theory Martin had failed to establish any memorandum in writing sufficiently definite and certain in its terms to constitute under the statute of frauds a contract for the sale of real estate susceptible of being specifically enforced. In this conclusion we concur. A series of letters passing between the parties are relied upon as constituting the memorandum, but a careful search of the letters fails to disclose any description of the lands involved, or any reference to any other writing by which the lands may be identified. This is essential to comply with the statute, Art. 3995, Sec. 4, Vernon’s Civil Stats.
“Written memorandum must contain the essential terms of a contract expressed with certainty, and no part of such contract is more essential than the description by which the subject matter thereof is to be identified.” Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064, 1066(T).
“The writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152(T); Osborne v. Moore, 112 Tex. 361, 247 S.W. 498(T).
As has already been noted the relationship of landlord and tenant existed between Martin and Smith. When this relationship was shown to exist, as against Martin, plaintiff was entitled to recover unless Martin could prove a superior title with'which he was connected. McKie v. Anderson, 78 Tex. 207, 14 S.W. 576, loc. cit. 577. Martin did not claim title, but as we have pointed out, only sought to acquire the title-Smith had.
When plaintiff rested his casé Martin read to the jury his lease contracts, concerning which he had just been questioned, and then orally moved as follows: “We desire to move at this time for judgment on the Plaintiff’s case and the lease contracts which have been offered in evidence.” The motion was denied and Martin predicates a- point on that action of the -court and argues it is elementary in a case oí trespass to try title that a plaintiff must recover on the strength of his own title and cannot rely upon the weakness of the defendant’s title. This is conceded to be elementary but the rule -applicable to Martin, is not that rule but- another ele[877]*877mentary rule announced in McKie v. Anderson, supra.
Under this point and other points having to do with the offer of proof, the appellant, Martin, argues at considerable length the judgment of the trial court is fundamentally erroneous in that the description of the lands recovered fail to identify and locate them on the ground. This contention, as we understand it, is predicated on the proposition plaintiff sued to recover surveys containing 640 acres each, whereas the judgment permits a recovery of a less acreage in each survey as we noted in our earlier statement, by reason of which Martin says the description is indefinite and insufficient. We have also noted the description in Martin’s lease and cross-action is the same as that contained in the judgment. It is only in boundary cases the description contained in the judgment must with certainty identify the lands on the grounds and identify the boundaries. This is essential in order to dispose of the issue presented, otherwise the parties would be left where they were. In trespass to try title cases the description may be general and it is sufficient if it definitely identifies the land. Bitner v. New York & Texas Land Co., 67 Tex. 341, 3 S.W. 301; Harbinson v. Cottle County, Tex.Civ.App., 147 S.W. 719. Except for the variance between the acreage given in the petition and that contained in the judgment there would have been no argument. W'e think the variance between the acreage is not material, because the judgment does not, for example, purport to allow the recovery of 109 acres of land out of survey 59, Abstract 882, Certificate 70, MK&T Ry. Co. containing 640 acres, but it awards the recovery of Survey 59, etc., containing 109 acres, whereas the petition recites the -acreage to be 640. This situation is wholly different from a case and judgment which awards the recovery of a designated number of acres out of a larger tract. The same identical •tract of land is here described with only a difference in the number of -acres recited as contained therein. The .description would have been altogether sufficient had the acreage been omitted entirely. In other words, the number of acres recited is not an essential part of the description of the tract. This is -clear from the Harbin-son case, supra.
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SUTTON, Justice.
The suit in trespass to try title was brought by Nowery J. Smith against the appellant, John Martin, and numerous other defendants to recover six surveys of land situated in Terrell County. Martin filed a cross-action against Nowery J. Smith and 1C. T. Smith for specific performance of a contract of sale based upon the provisions of a lease contract between Martin and C. T. Smith, which contract was alleged to háve been made between Martin and Smith, acting through his agent A. E. Creigh, Jr.
Martin and another defendant were personally served with citation; some six or eight others, non-residents, were served with notice to serve non-residents, and the remaining defendants were served by publication.
' At the .conclusion of the evidence the trial court instructed a verdict agáinst Martin on his -cross-action. The court also [876]*876instructed a verdict in favor of Nowery J. Smith for the title and possession of a two-thirds interest in one section sued for, and submitted an issue oí limitation on the part of Nowery J. Smith under the ten-year statute, Vernon’s Ann.Civ.St. art. 5,510, as to a 23/24ths interest in the other five sections. The verdict was favorable to Smith and upon the instructions and verdict judgment was rendered in favor of Nowery J. Smith for the interests indicated. From that judgment John A. Martin alone has appealed.
The lands were described in plaintiff’s petition by abstract, certificate, survey and block numbers, Original grantee County and ás containing ■ 640 acres each. Each survey was further described by field notes, giving to each side 1900.8 varas.
In the issue submitting plaintiff’s claim of title by limitation and in the judgment the lands were described by Abstract, Certificate, Survey, Original Grantee, County of Terrell and as containing 628, 589, 628, 580 and 109 acres respectively.
The lands in Martin’s lease and his cross-action were described as in the special issue and judgment.
Martin has twenty-one points of error and his position in the cáse might be easily overlooked and misunderstood. As we have already noted he took possession of the lands as the tenant of C. T. Smith under a written lease between himself and Smith, which lease he introduced in evidence. C. T. Smith is the predecessor in title of Nowery J. Smith. Martin attorned to Nowery J. Smith. Martin did not deny nor dispute the title of Nowery J. Smith which he might not do as the tenant of Smith, but sought only to acquire his title by virtue of a claimed contract to purchase the same. The court determined that issue against Martin and instructed a verdict against him on his cross-action. The verdict was instructed on the theory Martin had failed to establish any memorandum in writing sufficiently definite and certain in its terms to constitute under the statute of frauds a contract for the sale of real estate susceptible of being specifically enforced. In this conclusion we concur. A series of letters passing between the parties are relied upon as constituting the memorandum, but a careful search of the letters fails to disclose any description of the lands involved, or any reference to any other writing by which the lands may be identified. This is essential to comply with the statute, Art. 3995, Sec. 4, Vernon’s Civil Stats.
“Written memorandum must contain the essential terms of a contract expressed with certainty, and no part of such contract is more essential than the description by which the subject matter thereof is to be identified.” Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064, 1066(T).
“The writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152(T); Osborne v. Moore, 112 Tex. 361, 247 S.W. 498(T).
As has already been noted the relationship of landlord and tenant existed between Martin and Smith. When this relationship was shown to exist, as against Martin, plaintiff was entitled to recover unless Martin could prove a superior title with'which he was connected. McKie v. Anderson, 78 Tex. 207, 14 S.W. 576, loc. cit. 577. Martin did not claim title, but as we have pointed out, only sought to acquire the title-Smith had.
When plaintiff rested his casé Martin read to the jury his lease contracts, concerning which he had just been questioned, and then orally moved as follows: “We desire to move at this time for judgment on the Plaintiff’s case and the lease contracts which have been offered in evidence.” The motion was denied and Martin predicates a- point on that action of the -court and argues it is elementary in a case oí trespass to try title that a plaintiff must recover on the strength of his own title and cannot rely upon the weakness of the defendant’s title. This is conceded to be elementary but the rule -applicable to Martin, is not that rule but- another ele[877]*877mentary rule announced in McKie v. Anderson, supra.
Under this point and other points having to do with the offer of proof, the appellant, Martin, argues at considerable length the judgment of the trial court is fundamentally erroneous in that the description of the lands recovered fail to identify and locate them on the ground. This contention, as we understand it, is predicated on the proposition plaintiff sued to recover surveys containing 640 acres each, whereas the judgment permits a recovery of a less acreage in each survey as we noted in our earlier statement, by reason of which Martin says the description is indefinite and insufficient. We have also noted the description in Martin’s lease and cross-action is the same as that contained in the judgment. It is only in boundary cases the description contained in the judgment must with certainty identify the lands on the grounds and identify the boundaries. This is essential in order to dispose of the issue presented, otherwise the parties would be left where they were. In trespass to try title cases the description may be general and it is sufficient if it definitely identifies the land. Bitner v. New York & Texas Land Co., 67 Tex. 341, 3 S.W. 301; Harbinson v. Cottle County, Tex.Civ.App., 147 S.W. 719. Except for the variance between the acreage given in the petition and that contained in the judgment there would have been no argument. W'e think the variance between the acreage is not material, because the judgment does not, for example, purport to allow the recovery of 109 acres of land out of survey 59, Abstract 882, Certificate 70, MK&T Ry. Co. containing 640 acres, but it awards the recovery of Survey 59, etc., containing 109 acres, whereas the petition recites the -acreage to be 640. This situation is wholly different from a case and judgment which awards the recovery of a designated number of acres out of a larger tract. The same identical •tract of land is here described with only a difference in the number of -acres recited as contained therein. The .description would have been altogether sufficient had the acreage been omitted entirely. In other words, the number of acres recited is not an essential part of the description of the tract. This is -clear from the Harbin-son case, supra. The test is, can the land as described be located and identified by the officer executing a writ 'of possession without exercising judicial functions? As said in the Bitner case, supra, by reference to the records in the Surveyor’s office and the General Land Office the-lands described can be ascertained- and made certain. Any competent surveyor can take the descriptions of the surveys contained in the judgment and locate them regardless of the acreage contained therein.
Every right Martin asserted is determined 'by his tenancy and 'his failure to make good his cross-action. In the situation presented here in this case by Martin the inquiry made by Judge Gaines in Converse v. Langshaw, 81 Tex 275, 16 S.W. 1031, loc. cit. bottom of page 1033, is altogether apt, when paraphrased, “Ought Martin be allowed tb reverse this judgment on the ground the description is defective when if made sufficient it would preclude him?” He is not prejudiced in any respect by. the judgment. He has lost nothing he might have otherwise gained,
Martin says the judgment should be reversed because there is no showing plaintiff complied with the Soldiers’ and Sailors’ Relief Act 50 U.S.C.A.Appendix, § 520, but that contention has been decided against him, Mims Bros. v. N. A. James, Inc., Tex.Civ.App., 174 S.W.2d 276. He has other points based upon the failure of the court to sustain his motion to quash citations by publication. issued for other, parties defendants in the suit; to the admission and introduction of documentary evidence in an effort on the part of plaintiff to prove a chain of .title. These, we think, -are all harmless and immaterial so far as Martin is concerned, because as .we have already said he is precluded by the determination of the only issues with which he is concerned and the judgment, -as against him, is the only judgment that could have been rendered in the case.
It is our conclusion the appellant has demonstrated no error upon which the case [878]*878may be properly reversed and the judgment is affirmed.