Wofford v. McKinna

23 Tex. 36 | Tex. | 1859

Wheeler, C. J.

The decision of this case, depends on the question, whether the tax title on which the defendant relied to support his plea of the statute of limitations, is a “ deed,” within the meaning of the sixteenth section of the statute. (Hart. Dig. Art. 2392.) We agree with the counsel for the appellee that the statute intends an instrument which is really and in fact a deed, possessing all the essential legal requisites to constitute it such in law: as it is very well expressed in the brief of counsel, it must be “ am 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.”

But we do not concur in the opinion, that because it is the deed of the assessor and collector of taxes, it is necessarily wanting in these requisites. Such a deed may be as valid and effectual to vest a title in the grantee, as a patent from the government. If all the requirements of the law necessary to confer on the officer the power to sell, have been strictly complied with, the sale and conveyance, if regularly made in pursuance of the power, will vest in the purchaser a good title. The difficulty, in this class of titles, is, in proving the regularity of the proceedings necessary to confer the power, which are conditions precedent to its exercise. But it does not follow that the conveyance is not a deed, because the power of the agent is not produced; the production of the power is necessary to give effect to the deed, and render it operative to pass the title, but not to constitute it a deed. A sheriff’s deed is inoperative without proof of his power to sell; it is no evidence of title, with out the production of the judgment and execution. And so of every conveyance executed by an agent or attorney in fact; the production of the power is necessary to complete the evidence of title. But it cannot be said that the conveyance is not a deed until the power is produced. If the power must be shown, then a defendant must not only have a deed, but a title good in itself, before he can claim the protection of the statute. Such manifestly was not the intention of the law. It will scarcely be denied that a party holding under a sheriff’s deed' might claim the protection of the sixteenth section of the statute; and it is not perceived that, as respects this question, there is any difference between such a deed, and that of the tax collector. The validity of -each depends equally on the power of the officer. (Robson v. Osborn, 13 Texas Rep. 298.) But it cannot be said, that the deed is void on its face, or that it is not a deed, until the power is produced.

But it is insisted, that the present deed is void upon its face, because it contains no sufficient description of the land conveyed. This is certainly a grave objection to the deed; and it appears to be well taken. The land conveyed is not described by metes and bounds, and by any certain matter of description or identity. It is to be taken out of the two-thirds of a league granted to William Arrington, “ to commence at the beginning corner, and taken in a square if it will admit of it.” Is it to be surveyed in a square ? That depends bn the form of the survey of the grant; and by reference to the field notes of the survey, as set forth in the petition and judgment, it seems, that the twenty-five hundred acres, which the deed purports to convey, cannot be obtained in a square.

To what boundaries, then, is the defendant entitled to claim^ by virtue of his five years possession under the deed ? But the description is uncertain in itself. From its terms it is uncertain in what form the land is to be taken. Neither the owner of the land, the party in possession, nor the court, can know from the face of the deed, what are the boundaries of the claim. The deed manifestly is void for uncertainty in the description of the premises, unless it cam be aided by matter extrinsic of itself. If it were a contract or conveyance between individuals, this unquestionably might be done, and effect given to the contract or conveyance. In a contract between individuals, if a latent ambiguity exists in the description11 of the land, parol evidence is resorted to for the purpose of explaining it, and giving effect to the intention of the parties; and where the estate intended to be conveyed, is sufficiently described in the instrument, the addition of a circumstance, false or mistaken, will be rejected as surplusage in order to carry the intention into effect. But the law in respect to the class of titles to which the present belongs, is settled otherwise by the whole current of decisions, both in the federal and state courts. (Blackwell on Tax Titles, 450, 151 et seq., and numerous cases cited in the text.) “A description sufficiently certain to convey land between man and man, and which, if contained in an agreement to convey, would authorize a court of equity to decree a specific execution, will not answer in the proceedings to enforce the collection of a tax.” (Blackwell, 152.)

A grant by the owner of a certain number of acres in a particular tract, would confer a right of election upon the grantee, and authorize him to locate the quantity in any part of the tract he saw proper to elect, upon the principle that a conveyance must be held to pass some interest, if such effect may be given to it, consistently with the rules of law, and that, if uncertain or ambiguous, it must be construed most strongly against the grantor. But in this respect, it is said, there is a wide difference between the conveyance of the owner and a public officer. The former may sell upon his own terms, and may confer a right of election upon his grantee. But power to grant such a right is not conferred upon the officer of the law. He is the mere instrument to pass the title. He acts under a special and limited authority, conferred by the law, and not by the owner of the estate. In this proceeding the owner “ has nothing to do—he intends nothing: the government is acting through its agents in hostility to him.” The proceeding is construed strictly; and parol evidence is not admitted to explain a latent ambiguity in the description, or to locate the land. If the description by the officer be not so certain and complete as not to require the aid of extrinsic evidence, his deed is held to be void. (Blackwell, 156; 2 Ham. Rep. 287; Ewing v. Helm, 13 Serg. & Rawle, 151; 13 How. 23.)

Such is the strictness of construction which has been applied to the proceedings in the sale of land for taxes: upon which Mr. Blackwell in his treatise upon the law of Tax Titles, observes, “As things now stand, a tax title is no title at all. Out of the numerous sales made under the acts of Congress, between the years 1800 and 1818, not a single one has been sustained; and not exceeding ten, under the laws of the several states, out of at least twelve hundred which have found their way to the superior courts of the country. (Blackwell, 345.) Such has been the course of decision in the federal and state courts ; and whatever may be thought of the reasons upon which the doctrine of the decisions is founded, it is too firmly established to be now overthrown.

Upon the principles which have been uniformly applied to titles like the present, it is manifest, the deed in question must be held void for the want of a sufficiently certain description of the land it purports to convey. Being Void upon its face, we think it is not such an instrument as was contemplated by the sixteenth section of the act of limitations. A deed which is void upon its face is a nullity. It is not a deed in fact and in law, in a legal, or any just sense of the term. It is not such a deed as we suppose the legislature meant when they employed that term in the statute.

It is to be observed, the question in this case is, not whether a void deed may constitute color of title under the plea of limitation of ten years, so as to enable the party in possession claiming under it to hold by limitation to the extent of the boundary described in the deed. That question is settled in the affirmative by the case of Charle v. Saffold, 13 Texas Rep. 94. (And see Whitehead v. Foley, lately decided at Austin; Pillow v. Roberts, 13 How. 472.)

The question we are here considering relates exclusively to the meaning of the sixteenth section of the act of limitations; it is, whether a deed which is void on its face for uncertainty, will protect a possession of five years, under this section of the statute. We are of opinion that it will not; and consequently that there is no error in the judgment. It is therefore affirmed.

Judgment affirmed.