Smith v. Crosby

• Decision Date: 15 June 1893
• Citation: 23 S.W. 10
• Parties: SMITH et al. v. CROSBY et al.
• Court: Texas Supreme Court

Page 10

23 S.W. 10

SMITH et al. v. CROSBY et al.

Supreme Court of Texas.

June 15, 1893.

Certificate of dissent from court of civil appeals, first supreme judicial district.

Trespass to try title by Mollie Terry Smith and others against Mildred M. Crosby and others. Judgment for defendants. Plaintiffs appeal. Affirmed by court of appeals, and certified to supreme court. Affirmed.

Robt. G. Street and Scott, Levi & Smith, for appellants. S. S. Hanscom and Willie, Campbell & Ballinger, for appellees.

STAYTON, C. J.

The adverse parties claim through J. Mayrant Smith, and, if the sheriff's sale passed his interest in the Bundick league, then appellant has no right, for she claims through a conveyance made by him since the sale by the sheriff was consummated. The ancestor of J. Mayrant Smith, defendant in execution, owned an undivided interest in the Samuel C. Bundick league, which was partitioned through a decree of the district court for Galveston county prior to the levy and sale under execution through which appellees claim, but the decree partitioning the land was not recorded until long after the sheriff's sale. By the partition decree, a particular part of the league was set apart by J. Mayrant Smith and coheir, and, under this state of facts, it is contended that the levy, sale, and sheriff's deed did not pass to the purchaser his interest in the league. The levy indorsed on the execution, in so far as it described the land, was as follows: "All the right, title, and interest of the defendant J. Mayrant Smith in and to league No. 6, Galveston county, originally granted to Samuel C. Bundick, and known as `Virginia Point League.'" The advertisement under which the sale was made was not produced, but the description of the land contained in the sheriff's deed, under which appellees claim, was the same the levy indorsed. It is not claimed that the description of the league was in any respect uncertain or inaccurate, but it is contended that the levy, sale, and deed, for want of more particular description of part sold, did not pass title to the purchaser to any part of the league owned by defendant in execution. In the absence of evidence to the contrary, it must be taken as true that the sheriff took the necessary steps required by law to make a valid sale, and did sell all he was authorized by the levy to sell.

It seems to be contended that the words "all the right, title, and interest of the defendant" in and to the league of land described in the levy and sheriff's deed should not be given the same effect as would words declaring expressly that the land itself was levied upon, sold, and conveyed; but we cannot concur in this. The words, as descriptive of the estate and quantity of land levied upon, sold, and conveyed, must be given the same effect as would be given to them in a conveyance voluntarily executed by an owner or claimant of land. Nearly three centuries ago it was said: "If a man be seised of land in fee simple, or for life, or have an estate in it for years, by statute merchant, staple, elegit, or the like, and he grant all his estate, or all his right, or all his title, or all his interest of and in the land, by this grant all his estate, and as much as he is able to grant, doth pass." Shep. Touch. 98; Elph. Interp. Deeds, 205. This is one of the fixed rules regulating conveyances. When an owner of land, whatever his estate may be, conveys "all his right" therein, he passes to the person to whom the conveyance is made the same right he held as fully as he could by words which in terms purported to convey the land. Conveyance of right in and to property necessarily transfers the property in so far as owned by the person making the conveyance. When the owner of land conveys "all his title" in and to it, he necessarily brings about the same result. When he conveys his "interest" in and to land, he transfers whatever owner ship he has measured by estate and area of interest. For a long time past, from solicitude to use words that would embrace every conceivable interest in lands, it has been usual to convey "all the right, title, and interest in and to" land described in a deed; and when such words are used, without other words limiting their effect, they must be held to convey the land as fully as if it was owned by the maker of the deed. If he owned the entire tract described in the deed in fee simple, that passes to the vendee. If he owned a less estate in the entire tract, that passes. If he owned in fee simple or lesser estate only a part of the tract described, whatever he owned passes. If he owned an undivided interest in the whole tract described, or only in part of it, that which he owned will pass. The same rule applies to liens, sales, and conveyances made by sheriffs in obedience to executions, unless there be some rule of law making them exceptions. In Brown v. Smith, 7 B. Mon. 362, the rule was thus announced: "The objection made to the terms of the levy, as being upon the right, title, and interest of Johnson in the land, and not upon the land itself, is untenable. The distinction is but nominal, and has been too frequently disregarded in making levies and sales for it to be now questioned whether a levy and sale in either mode is not sufficient, with the sheriff's deed, to pass to the purchaser such title as the defendant had subject to execution." The same ruling was made in Humphrey's Ex'r v. Wade, 84 Ky. 400, 1 S. W. Rep. 648. In Woodward v. Sartwell, 129 Mass. 214, attachment was levied on "all the right, title, and interest" of the defendant in a tract of land, and it was held to be valid. The court said: "The land itself may be conveyed, or the right, title, and interest of the debtor in the same may be conveyed, and, if the latter form of deed is used by the officer, such estate as the debtor had in the premises at the time of the attachment would pass. * * * The deed to the purchaser recites the attachment, the seizure, the notices, and the sale, and conveys the right, title, and interest which the said Wales L. Egerton had at the time when the same was attached as aforesaid in and to the following described real estate. We are of opinion that this was a sufficient deed to the premises. It was sufficient to describe what was to be sold — the right, title, and interest of W. L. Egerton — on the day of the attachment, and the deed of the same conveyed that which was attached." In Vilas v. Reynolds, 6 Wis. 229, the levy of an execution on land was upon the "right and interest" of the defendant, which was held to be sufficient. The same ruling was made in Millett v. Blake, 81 Me. 531, 18 Atl. Rep. 293; Parks v. Watson, 29 Mo. 108; Lewis v. Chapman, 59 Mo. 381; McLaughlin v. Shields, 12 Pa. St. 287; Swan v. Parker, 7 Yerg. 490. The statute provides: "When a sale has been made, and the terms thereof complied with, the officer 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." Rev. St. art. 2316. The word "claim" does not add anything to the certainty or extent of a levy, or to a conveyance made in pursuance of a sale made under it. The rule that, in sales under execution and in like sales, the land sold must be designated with reasonable certainty, is as fully recognized in this state as elsewhere, but there may be a seeming conflict in the decisions made in the different states as to what amounts to a sufficient designation. It has been held that a sale by a sheriff of an undesignated part of a larger tract of land, there being no means of distinguishing the part sold from the remainder, is void. Among the cases so holding are the following: Wofford v. McKinna, 23 Tex. 36; Norris v. Hunt, 51 Tex. 609; Wooters v. Arledge, 54 Tex. 395; Pfeiffer v. Lindsay, 66 Tex. 123, 1 S. W. Rep. 264. In these and like cases no description of the land was given to which, with safety, might extrinsic evidence be applied for the purpose of locating it upon the ground. In that class of cases extrinsic evidence could not be received, simply because there is no general, yet accurate, designation of the land given in the levy and deed by which extrinsic evidence must be controlled. In such cases, to admit extrinsic evidence to show the unexpressed intention of the officer would be to make that operative as a conveyance, instead of the deed. In Wilson v. Smith, 50 Tex. 365, the levy and conveyance was on and of "one hundred and sixty acres of land, being a part of the homestead tract of said James Bankston, exclusive of two hundred acres exempt by law." The homestead tract embraced about 360 acres of land, but the exempt 200 acres had not been designated. The levy and conveyance were held not to be void. "It was not a sale of so many acres out of a larger tract, with no means of fixing or locating the land sold, then or afterwards, but was a sale of that part of the tract remaining after the homestead was laid off."

That extrinsic evidence may be introduced to clearly locate and identify land passing by a sheriff's deed, containing an accurate, but general, description, ought not to be controverted, and is not an open question in this court. Wilson v. Smith, 50 Tex. 370; Giddings v. Day, 84 Tex. 608, 19 S. W. Rep. 682. The rule in this respect is the same whether the deed be one executed by a sheriff after a sale under execution, or one voluntarily executed by the owner of the land. The sheriff's levy and deed are not ambiguous, in the sense that there is uncertainty as to the meaning of the language used in describing the land levied upon and sold; for that can have but one meaning, which is that the sheriff...