Miller v. Alexander, 13 Tex. 497

Miller v. Alexander

13 Tex. 497 | Tex. | 1855

Wheeler, J.

There can be no question that the Sheriff’s *503deed, though incomplete, (wanting a seal,) and the return upon the execution, evidenced a sale of the land under the execution, and a purchase by the plaintiff. But the former and a part of the entry of the levy were excluded on account of the apparent repugnancy in the entry of the levy. And the question is whether they were rightly excluded. The first entry of ■the levy upon the execution showed a levy upon the NorthWest corner of the league. But the entry immediately below, evidently made afterwards, stated that it was the North-East corner that was to be sold; and the instrument delivered by •the Sheriff to the purchaser as a conveyance evidenced a sale ■of the North-East corner. It was the right of the officer to amend and correct his entry of the levy. But it is objected that the last entry is in a different handwriting, with different ink and is without date. The signature to the entry appears to be in the same handwriting as that which precedes it. The difference in the ink renders it probable merely that it was made at a different time; and it is evident from the manner of the entry that it was made subsequent to the first entry; as it is natural to suppose it would be if intended as an amendment of it. There is, therefore, nothing of a suspicious character in these circumstances. But the entry is without date. If an amendment merely of the previous entry, as it appears •to have been, it was not necessary that it should have been, dated. In the case of Howard v. North, (5 Tex. R. 290,) it was said the Act (of 1842) “ does not direct the manner in whieh-the return of the officer shall be made, or what facts shall be statedand it was held that the levy need not be separately signed. It was sufficient that the return, of which it was a part, was signed by the officer. “ Nor does the 46 statute (it was said) impose upon the purchaser the necessity “ of proving by the return, in writing, or by parol evidence, 66 that the officer has not deviated in his acts, from the mode “ prescribed by the statute, for the execution of his authority.” (Id. 307.) The entry in question was the act of a public officer, in the performance of his duty, and the presumption, un*504til the contrary appears, must be that it was made in proper • time. To require the plaintiff to prove that it was so made, would be to require him to prove that the officer had not deviated from the line of his duty; which the law presumes, without proof. And to reject this portion of the return, on the assumption that it was an interpolation, made after the-advertisement of a different part of the league, and the date of the letter of the defendant in execution, recognizing the levy, and giving his assent to the sale of the land previously advertised for sale, would be to suppose the officer to have been guilty of a gross fraud upon the defendant in execution ; and this too, when the fairness of his conduct in the levy and sale had not been impeached. If fraud will not be presumed but must be proved, even to affect a party whose interest would be promoted' by it, much less will it be presumed of the acts of a public officer, who had no interest to subserve by a departure from the line of his duty. It is material to observe, that, though the defendants had pleaded specially their grounds, of defence to the action, there was no averment in the answer, in any manner impeaching the plaintiff’s title for fraud or otherwise; nor was it impeached by any attempt or offer t'o-prove that the levy, advertisement and sale were not consistent, open and fair in every particular. Had the plaintiff’s title been impeached as fraudulent in these particulars, and had there been evidence tending to cast suspicion upon it, explanation might have been required. Some evidence might have been required to prove that the land sold, was the same referred to in the letter of the defendant in execution, as having been advertised for sale. But there was nothing in the pleadings to apprise the plaintiff of the necessity of coming prepared with such evidence, and nothing in the proof to cast suspicion on the fairness of the sale. And the mere omission-, of a date to an amendment of the entry of the levy, which,, there was no reason to suppose was not made in proper time, was not sufficient to warrant its rejection on the assumption-that it was fraudulently made. If a fraud had been intended,. *505it is not unlikely that an alteration would have been made in the first entry by obliterating the evidence of the levy, if in truth it was upon different land from that sold. But the execution with its indorsements had been matter of record in the county for years. The fairness of the sale had never been questioned by motion to quash the return upon the execution, or otherwise. It had been in no way impeached. And we think the objection to the return first raised upon the trial, should not have been favorably entertained. It is a very different case from the alteration of a private instrument by a party to it.

If on the production of such an instrument, it appears to have been altered, it is incumbent on the party offering it in evidence to explain this appearance. For the instrument is supposed to have been intended to express the agreement of the parties, solemnly adopted as such, and attested by the signature of the party engaging to perform it. Any alteration, therefore, which makes it speak a language different in effect from that which it originally spoke, destroys its identity, and its legal virtue, for it is no longer the agreement which the party undertook to perform.

An agreement to be binding must have the assent of both the contracting parties ; and, consequently, cannot have legal validity if altered by one party without the concurrence of the other. Hence, every alteration on the face of the instrument which evidences the agreement, renders it suspicious; and this suspicion the party claiming under it, is ordinarily held bound to remove. (1 Greenl. Ev. Sec. 564, 568.) It was probably upon this principle that the evidence in this case was excluded; not adverting to the distinction between the alteration of a private instrument by one of the parties to it, and the alteration by a Sheriff or other officer of his entries made to evidence his official acts, which it is every day’s practice to admit, by way of amendment of his returns; and which cast no suspicion upon the fairness and truthfulness of the returns themselves.

It is further objected to the entry in question, that it was *506not signed officially; that is, that the deputy did not sign the name of his principal. It was signed by the same officer, as Deputy Sheriff, who made the sale, and who signed the return officially. He was an officer known to the law, (1 Stat. Republic, p. 181, Sec. 6, 9 et seq., Act of 20th Dec. 1836,) and it was not indispensable to the validity of his official acts that they should be attested in the name of the Sheriff. Where the office of Deputy Sheriff is recognized by the statute, it has been held that their acts should be certified in their own name) and notin that of the Sheriff. (4 Verm. 616.) There was no statute, as there is in some of the States (1 Wash. 159,) requiring the deputy to add the name of his principal; and the signing of his own name with the addition of his proper official designation, was sufficient. Besides, as we have seen, it was not necessary that the levy should have been separately signed by the officer. It was sufficient that the return was signed officially. (5 Tex. R. 307.)

It is not necessary to discuss the other objections urged to the regularity of the sale. The letter offered in evidence, admitted to have been written by defendant in execution, contained an express authority to sell the land previously levied on and advertised for sale, without appraisement. And this was sufficient to cure the alleged irregularity of the sale. A parol authority by the defendant in execution, to the Sheriff to sell designated lands, though the sale would not have been otherwise regular, will cure the irregularity. (1 B. Munroe, 237.) We are of opinion that the Court erred in excluding the proposed evidence; and that the judgment be reversed and the cause remanded.

Reversed and remanded.