Miller v. Alexander

• Decision Date: 01 January 1852
• Citation: 8 Tex. 36
• Parties: MILLER v. ALEXANDER.
• Court: Texas Supreme Court

8 Tex. 36

MILLER

v.ALEXANDER.

Supreme Court of Texas.

1852.

The action of trespass to try title may be maintained upon a merely equitable title. (Note 8.)

The bid and payment of the purchase-money at an execution sale constitute the purchaser's right, and the deed is merely evidence of that right. If the deed be defective, for example, if it have neither seal nor scroll, it is nevertheless admissible in evidence, even in a collateral proceeding, as conducing to show that the purchaser at the sale had acquired the equitable title to the land. (Note 9.)

A contract concerning lands, although not under seal, was authorized by the 7th section of the act of 1840 (Hart. Dig., art. 2770) to be recorded; and it was held that a sheriff's deed, without a seal or scroll, was such a contract. (Note 10.)

Where a petition alleges a cause of action and prayed process against two, but only one was cited, and there was no answer, but the judgment recited that the parties appeared by attorney and confessed judgment, and then proceeded to render judgment against “the aforesaid defendants:” Held, That the presumption was (before the act of 1846) prima facie that the attorney had authority from both defendants; but that if the one served with process had appeared and pleaded, as in the case of Ward v. Latimer, (2 Tex. R., 245,) the presumption might have been that the word “defendants” was a clerical mistake for “defendant,” and that it had reference to the defendant who appeared and answered. (Note 11.)

Appeal from Colorado. This suit was brought by Miller to recover of Alexander a tract of land to which the former claimed title and of which the latter was in possession. The defendant claimed as tenant of R. & D. G. Mills, who were admitted as defendants and pleaded title in themselves derived from Lewis, through Brewster, to them by two conveyances, the former bearing date on the 19th day of February, 1845, and the latter on the 6th of March of the same year.

On the trial the plaintiff offered in evidence a judgment rendered by the District Court of Colorado county in September, 1843, in a suit wherein E. W. Perry, administrator, &c., was plaintiff, and Ira R. Lewis and George W. Thatcher were defendants. The defendants objected to the introduction of the judgment, and thereupon offered in evidence the record of the proceedings in that suit, from which it appeared that a citation was issued and served on the defendant Thatcher, but no citation was issued to the defendant Lewis. Neither defendant answered. But the judgment, after stating the names of the parties, plaintiff and defendants, states that “The parties appeared by attorneys and the defendants confessed judgment,” &c., and proceeded: It is therefore considered by the court that the aforesaid plaintiff recover of the aforesaid defendants,” &c.

It was objected to the introduction of the judgment in evidence that there was no service upon the defendant Lewis, and that an attorney-at-law cannot confess a judgment against his client without a special power of attorney for that purpose. The court overruled the objection and admitted the record in evidence. The plaintiff then gave in evidence the execution issued on the judgment and the return thereon; which showed a levy on the land on the 10th day of May, 1844, a postponement of the sale by order of the plaintiff's attorney until the 1st Tuesday in August thereafter, and a sale on that day by the sheriff and a purchase of the land by the plaintiff in this suit, and the execution satisfied. The plaintiff then offered to read in evidence an instrument purporting to be the sheriff's deed made in pursuance of the sale, dated on the seventh day of August, 1844, and recorded in the proper office on the tenth day of September following; to the introduction of which the defendant objected, because there was no scrawl affixed to the signature of the sheriff. The court sustained the objection and excluded the evidence. The instrument recited the judgment, execution, levy, and sale, and purported to be under the hand and seal of the officer “using a scrawl for a seal,” but the scrawl was omitted. The plaintiff then offered to read in evidence a letter from the defendant in execution, Lewis, to the attorney of the plaintiff, by which, in consideration that the latter had postponed the sale, he agreed to waive all exceptions to the proceedings under the execution. He also offered to prove by a witness the sale by the sheriff and the purchase and payment of the purchase-money by the plaintiff, but the court rejected the evidence.

The defendant then read in evidence a deed of conveyance of the land by Lewis to Brewster, dated on the 19th day of February, 1845, and another of a later date from Brewster to the defendants, R. & D. G. Mills.

The court instructed the jury that “unless the plaintiff had shown that he has a perfect legal title by deed he cannot recover; and that an equitable title would not be sufficient;” and refused to instruct that proof of the judgment, execution, levy, sale, and payment of the purchase-money by the plaintiff gave a title sufficient to maintain the action. There was a verdict and judgment for the defendants, and the plaintiff appealed.

J. B. Jones, for appellant.

I. The principal question presented in this case is whether a suit for the recovery of land can be maintained on any other than a strict technical legal title.

II. The court below erred in ruling out the deed offered in evidence by the plaintiff. The testimony tended to prove the issue on the part of the plaintiff. The court can only inquire into and decide upon the admissibility of the proof, and if the proof offered tends in any way to prove the issue the court cannot reject it. The sufficiency of the proof must be determined by the jury. If, under any circumstances, this deed could be made available, it should have been admitted.

The deed, though without a seal, is evidence of right, and as such, by the law, is permitted to be recorded, and the recording was notice to all subsequent purchasers. (Hart. Dig., art. 2770; Yales v. Houston, decided in this court.)

III. The return of the sheriff would be competent evidence to establish the sale and take the transaction out of the statute of frauds. It is the sale by the sheriff and the payment of the purchase-money that confers the right. (Harden v. Barnes, 3 Gill & Johns., 359-368; Barney v. Patterson, 6 Harr. & Johns., 204-5; Fleming v. Powell, 2 Tex. R., 225.)

Harris and Pease, for appellee.

I. The plaintiff's bill of exception shows that the defendants objected to the reading of the paper purporting to be a deed for the premises in controversy from the sheriff of Colorado county because there was no seal or scrawl affixed thereto. The court below for this reason refused to permit this paper to be read as evidence.

The correctness of this ruling of the court depends upon the fact whether a deed from the sheriff is necessary to vest title to real estate in a purchaser under execution.

The 22d section of the executive law of 1842 (Hart. Dig., art. 1345) provides, “That when a sale has been made and the terms thereof complied with, the sheriff, coroner, or constable shall execute and deliver to the purchaser a conveyance of all the right, title, interest, and claim which the defendant in execution had in and to the property sold.”

The 17th section of the act of 1840, concerning conveyances, (Hart. Dig., art. 171,) provides, “That all conveyances by commissioners, sheriffs, or other officers legally authorized to sell land, hereafter to be made, for lands sold in virtue of any decree or judgment of any court of this Republic, shall be, and they are hereby declared to be, good and effectual for passing the absolute title to such lands to the purchasers thereof,” &c.

If the levy and sale give title to the purchaser, why the necessity of these statutes? And why the necessity for a conveyance from the sheriff to the purchaser? The levy and sale under a judgment and execution are but the inducement and consideration that authorize the sheriff to make the conveyance that divests the title of the defendant in execution and vests it in the purchaser.

In those States in which the sheriff sells the land, instead of extending it to the creditor he executes a deed to the purchaser. (4 Kent's Com.)

A purchaser under a sale by execution must show a judgment, execution, levy, and sheriff's deed. (2 Ala. R., 676; 1 Mon. R., 154; 3 Mon. R., 272 and 99; 9 Ohio R., 19; 4 Wheat. R., 503.)

In Indiana when a deed is executed to a purchaser he is deemed vested with the legal title from the day of sale. (Gwynne on Shffs., 353.)

When the deed is executed and delivered, it, by relation, takes effect as of the day the levy was made; and passes to the purchaser all the interest the judgment debtor then had. (11 Ohio R., 235, 252.)

The title of a purchaser under a fi. fa. does not depend upon the return of the officer; it is enough for him that the officer had authority to sell and did sell to him and executed a deed. (4 Wheat., 503, 506;12 Johns. R., 213.)

A purchaser of land at a sheriff's sale acquires no right of entry until he obtains a deed. (9 Da. R., 165; see also 8 Johns. R., 520, 333, 361.)

At common law lands could not be sold under execution. It is only by statute that such sales are authorized; and the mode pointed out by statute must be strictly followed.

II. If we are right in the position that a conveyance from the sheriff is necessary to vest the title to real estate in a purchaser under execution, then it becomes necessary to examine and see whether the paper purporting to be a conveyance that was rejected by the court below can be considered a conveyance under the laws of this State.

The 6th section of the act of 1840, concerning conveyances, (Hart. Dig., art. 167,) provides, “That no estate of inheritance or freehold, or for a term of more than five years, in lands and tenements shall be...