Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8. Page: 20
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39-40 SUPREME COURT.
Miller v. Alexander.
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.
[39] 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 sherif' 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."
[40] 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 Cor.)
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 tie 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 afi.fa. does not depend upon the return of
the officer; it is enough for him that the officer had authority to sen and did
sell to him and executed a deed. (4 Wheat., 503, 506; 12 Johns. B., 213.)
-A purchaser of land at a sheriff's sale acquires no right of entry until be
obtains a deed. (9 Da. R., 165; see also 8 Johns. R., 520, 333, 861)
20
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during part of Galveston term, 1852, and the whole of Tyler term, 1852. Volume 8., book, 1901; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28566/m1/28/: accessed May 6, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .