Wofford v. McKinna

• Decision Date: 01 January 1859
• Citation: 23 Tex. 36
• Parties: R. B. WOFFORD AND OTHERS v. H. F. MCKINNA.
• Court: Texas Supreme Court

23 Tex. 36

R. B. WOFFORD AND OTHERS

v.H. F. MCKINNA.

Supreme Court of Texas.

1859.

The deed of an assessor and collector, for land sold by him for taxes, is a “deed” within the meaning of the sixteenth section of the statute(O. & W. Dig. C. S. art. 1329); and will support the plea of limitation of five years under it, without proof of his authority to sell.13 Tex. 298;24 Tex. 366.

This section of the statute requires, that the instrument relied upon should, by its own terms, or with such aid as the law requires, assume and purport to operate as a conveyance; and it must have tested by itself, all the constituent parts of a good and perfect title.If, however, it be made by an agent, though the production of his power is necessary to render the conveyance operative to pass the title, it is not to constitute it a deed.

A deed for a certain number of acres of land, to be taken out of a larger tract, which describes the land sold as commencing at the beginning corner of the original tract, and to be taken in a square, if it will admit of it, leaves it uncertain, from its terms, in what form the land is to be taken, and is void for uncertainty in the description, unless it can be aided by matter extrinsic of itself.

In a contract between individuals, if a latent ambiguity exist in the description of the land, parol evidence may be resorted to, to explain it, and give effect to the intention of the parties.

A grant by the owner, of a certain number of acres in a particular tract, will authorize the grantee to locate it in any part of the tract, because the conveyance must be held to pass some interest, if such effect may be given it, consistently with the rules of law; and if uncertain or ambiguous, it must be construed most strongly against the grantor.

But these principles are not applicable to conveyances by the assessor, and parol evidence is not admissible to explain a latent ambiguity in such conveyance, or to locate the land.If the description by the officer, be so uncertain and incomplete as to require the aid of extrinsic evidence, his deed is void.26 Tex. 296.

A deed of an assessor, void upon its face for want of sufficient certainty in the description of the land it purports to convey, will not support the plea of five years' limitations, under the sixteenth section of the statute.Ante, 30;post, 135.

A void deed may constitute color of title under the plea of limitations of ten years, so as to enable the party in possession, claiming under it, to hold by limitation to the extent of the boundaries described in the deed.1 Tex. 771;11 Tex. 579;13 Tex. 94;27 Tex. 359;post, 114.

APPEAL from De Witt.Tried below before the Hon. Fielding Jones.

This was a suit by the appellee to recover from the appellants 3,321 acres of land, described in his petition, and in the judgment, as follows: “Beginning at the southwest corner of survey No. 18, class No. 2, of one league of land granted to R. H. Chisholm; thence west, with the north line of a third of a league survey, 135 varas, to a stake, the northwest corner of said survey, from which a post oak bears south 40° west, 15 varas, and a black jack bears north 4° east, 6 varas; thence, south, with said survey 620 varas, to a stake, from which a black jack bears south 45°>>> west, 11 varas, and another bears north 23° west, 12.3 varas; thence, west 2,725 varas, to a stake, from which a black jack bears north 12° east, 63 varas, and another bears north 40° west, 77 varas; thence, north, 7,420 varas, to the southwest corner of one league granted to Andrew Lockhart; thence, east, with the south line of said league, 1,940 varas, to the northwest corner of a survey of one-fourth of a league granted to W. Lock-hart; thence, south, with the west line of said fourth of a league, 2,984 varas, to its southwest corner; thence with the south line of said survey, north 70°> east, 1,000 varas, to the northwest corner of survey No. 18, class No. 2; thence, with the west line of said survey, south, 4,240 varas, to the place of beginning.”

The appellants disclaimed, except as to twenty-five hundred acres, as described in a deed from the assessor and collector of taxes for De Witt county.And as to said twenty-five hundred acres, they pleaded limitation of five years under the sixteenth section of the act of 1841.This tract was described in the assessor's deed as follows, to wit: “Twenty-five hundred acres of land, being out of three-fourths leagues of land granted to William Arrington, on the west side of the Guadalupe river, and adjoining the Chisholm league of land, and also a survey made for W. Lockhart; the said tract of land to commence at the beginning corner and taken in a square, if it will admit of it, out of said three-fourths of a league granted to William Arrington.”

Upon the trial, the appellants offered in evidence, to sustain their plea of limitations, the deed from the assessor and collector, which was excluded by the court, upon the ground, as stated in the bill of exceptions, that the said deed, being on its face a tax title, could not be introduced in evidence for any purpose, unless it were first shown that all the prerequisites of the tax sale had been complied with.

A. H. Phillips, for the appellants.Were it admitted for the sake of argument, that the sixteenth section of the act, could not be invoked to sustain a deed, void on its face, yet there is nothing in the act itself, much less in the reason of it, that will justify a distinction between a tax deed and any other.If any is to be made, it would seem most reasonable, that the advantage should be in favor of the one executed by an officer of the government.This, at least, should be presumed to be derived from under the sovereignty of the soil.

However this may be, the principle involved in the ruling, is believed to have been decided in the case of Pillow v. Roberts, 13 How. U. S. 472.In that case, the two pleas setting up the five and ten years' limitation were overruled, on special demurrer, as insufficient and informal.Under the general issue, evidence was subsequently offered, tending to establish the facts set up in the limitation pleas that had been overruled.The court rejected the evidence, and exception was taken to the ruling.In reviewing the decision, the supreme court say: “The case presents two questions: 1st.Whether by the law of Arkansas, the deeds offered in evidence (and which were regularly acknowledged and recorded according to law), should have been permitted to go to the jury as evidence of a regular sale of the land mentioned therein for taxes? 2d.Whether without regard to their validity, as elements of title per se,they should not have been received for the purpose of showing color of title, in connection with possession by the persons claiming under them, sufficient by law to bar the entry of plaintiff?”

The court decided both questions in the affirmative; and after adverting particularly to the Arkansas statute, upon the second question, made the following remarks as general principles, applicable to this class of cases: “Statutes of limitation are founded in sound policy.They are statutes of repose, and should not be evaded by a forced construction.The possession which is protected by them, must be adverse and hostile to that of the true owner.It is not necessary that he who claims their protection should have a good title, or any title but possession.A wrongful possession obtained by a forcible ouster of the lawful owner, will amount to a disseizin, and the statute will protect the disseizor.One who enters upon a vacant possession, claiming for himself, upon any pretense or color of title, is equally protected with the forcible disseizor.Statutes of limitation would be of little use, if they protected those only who could otherwise show an indefeasible title to the land.Hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims for himself, and of course adversely to all the world….Color of title is received in evidence for the purpose of showing the possession to be adverse.”

Possession, then, with claim of ownership, constitutes the title, under the statute of limitation, and not the deed.The latter is but evidence of an adverse holding.This purpose is accomplished by the deed, whether it be complete or defective; and the same doctrine is substantially held by this court, in the case of Charle v. Saffold, 13 Tex. 94.

Ballinger & Jack, and W. S. Glass, for the appellee.Will any sealed writing, under which a party for five years may hold possession of lands, give full title precluding all claims?Will a mortgage, a bond for title, a deed for a term of years, etc.?Clearly not.The law does not speak in its broadest legal sense.It signifies a deed, in common acceptation--a deed between man and man, purporting to convey title to the land in controversy; and as to conveyances standing on exceptional grounds, it uses a general term, leaving their character as deeds to be tested and proved by the usual rules of construction and evidence.It further requires a valid deed, ex facie; an actual deed; an instrument by its own terms, or with such aid as the law requires, assuming and purporting to operate as a conveyance.Not that it shall proceed from a party having title, or must actually convey title to the land; but it must have all the constituent parts, tested by itself, of a good and perfect deed.No instrument which demonstrates internally that it is not a deed can conform to the statute, nor can any which demonstrates that it depends on extrinsic facts, unless those facts are proved, and thereby it is established as a deed.

The instrument offered in this case is not a conveyance by the maker; assumes to convey no title or interest possessed by him; is made solely in an official character, by virtue of a special power conferred by law and the existence of...