Seemuller v. Thornton , 77 Tex. 156 ( 1890 )

STAYTON, Chief Justice.

is conceded that appellants were entitled to recover the land in controversy, unless appellee Thornton had acquired title through adverse possession.

Ho question is made as to the sufficiency of the evidence to show facts necessary to the acquisition of title to land under the five years statute of limitation.

It is claimed, however, that the court erred in admitting in evidence a tax deed under which appellee claims, and admitting some tax receipts, as well as in a charge given. -

Appellee offered in evidence a tax deed under which he claimed, executed by the tax collector of the county in which the land was situated.

The deed on its face professes to convey the 320 acres of land sued for, which constitutes the entire grant, and no objection is taken to its form, but it is claimed that the deed had been altered since its execution by the addition of the terminal letter to the name of the original grantee.

The land was patented to B. L. Goles, and it was insisted in the court below, as is it here, that the name of the grantee was written in the deed at the time of its execution without the final letter, and that this has been since inserted without authority.

To show that fact the original deed was sent up, and from an inspection of it we see no reason even to suspect that the deed has been in any manner altered since its execution, or that it is not in every respect just as it was first written.

The admission of the tax deed was objected to on following grounds: That it did not appear from the face of the deed that the land had been assessed as property of an unknown owner before advertisement and sale; that it did not appear, except from a statement in the deed, that time for payment of taxes had expired when sale was' made; that it did not show that taxes had been demanded of the owner, except through a recital in the deed; that the deed did not show how the levy was made; that the deed did not show how long the land was advertised for sale; and because it was not shown that the person who executed it was authorized to exercise the powers of tax collector—he signing the deed in that capacity and being shown to have been sheriff of the county.

The deed was admitted solely as a basis for limitation pleaded, and the charge of the court carefully required the jury to consider it for no other purpose.

The instrument offered in evidence was, within the meaning of the statute, a "deed.”

Whether the land had been properly assessed, the time for making sales for unpaid taxes had arrived, the land advertised for the proper time, or the officers legally empowered to make the sale and deed, would be important inquiries if the deed had been offered as evidence within itself of title; but it was not offered for that purpose, and though it may not have been effective to pass title, it was nevertheless a “deed.”

As said in Wofford v. McKinna, 33 Texas, 43, “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; * * * 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 land; but it must have all the constituent parts, tested by itself, of a good and perfect deed.”

The instrument may not have passed title, for any of the reasons which would have deprived the officer making it of power to sell and make a deed; yet it was in form a deed professing to convey the land in controversy, executed by a person having power under given facts to make a deed that would pass title. The court properly admitted it for the single purpose.

It is urged that the court erred in admitting in evidence tax receipts for the years 1884 and 1886. The objection made was that the receipts did not evidence payment of taxes on the land in controversy. These receipts showed that the taxes were paid on lands granted to B. L. Cole, while the land in controversy was granted to B. L. Coles; but the receipts identified the land by the correct abstract number, and if the names were not idem sonans the court properly admitted the receipts and left the question of payment of taxes on the land in controversy to the jury. The charge of the court as to the purpose for which the deed offered in evidence might be used was strictly correct.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Delivered April 25,1890.