Flemming v. Powell

Mr. Justice Lipscomb delivered the opinion of the court. This was an action to recover real estate in the city of Houston, brought by the appellee against the appellant. The ap-pellee claimed title derived from a sheriff’s sale on an execution issued under a decree of foreclosure and order of sale of the mortgaged property. There has been no appearance for the appellant, and the cause has been submitted by the appellee on a written agreement. Under such circumstances, all that we can do is to look into the record and see if there is any apparent error, for which the judgment of the court below ought to be reversed. There is a statement of the facts and a bill of exceptions in the record; from the latter it would seem that the grounds of appeal are, 1st. To the charge of the court in permitting the sheriff’s deed to go to the jury after it had been amended by that person in the progress of the trial, when he was no longer sheriff. 2d. To the charge of the court that if the property decreed to be sold had sold for two-thirds of its appraised value, it was all that the law required. We shall take them up in the order here presented; as to the 1st. It will be seen that the sheriff’s deed in the attestation [229] clause, before the amendment objected to, read: “ In testimony whereof, I have hereunto set my hand and seal, in my official capacity of sheriff, at my office in the city of Houston, this the second day of September, A. I). eighteen hundred and forty-five. John Fitzgerald, [l. s.] sheriff Harris county.” The amendment complained of was the insertion of the words “ scroll ly way of a” between the word “ and ” and the word “ seal.” It will be necessary to consider whether this amendment was at all essential to the validity of the sheriff’s deed. The legal effect of the substitution of an ink scroll for the wax seal, anciently in use in England, has been productive of much discussion, and a considerable contrariety of decision; but by a reference to the reported cases, it has been held in almost all of the southern and western states, that the ink scroll is sufficient, and indeed so universal has been the practice, that now to subvert it would be productive of a great deal of mischief and trouble, if not of irreparable loss. And if we should feel ourselves bound to make such a decision, it will be by the force of the proviso in the first section of an act concerning conveyances, Acts Texas Congress, 1840, p. 153. It is in the words following: “provided, the person making the same shall, in the body of the instrument, recognize such scroll as having been affixed by way of a seal.” It will be seen that the proviso does not require this recognition to be in any specific term; if, then, it can be fairly inferred or collected from the body of the instrument, it will be sufficient to bring it within the proviso of the act. To take the whole context of the clause of attestation recited above clearly manifests the intention to make a seal, and would, when applied to the scroll so made, be a recognition of it as a substitute for the wax seal; this construction of the attestation clause of the deed will be strongly fortified by reference to adjudicated cases. The case of Lee v. Adkins, Minor, 187, was an action of debt in the usual form of debt, on a writing obligatory; the instrument offered in evidence was as follows: “ $150. Six months after date, I will pay John Baird or order one hundred and fifty dollars, for value received of him' this 15th of November, 1820. AlleN AdKTNS.” [Sealed.] 230231 The character of this instrument was discussed before the supreme court of Alabama, and it was held not to be a sealed instrument. It will be seen that it carried on its face no evidence that the party making it intended to make it a sealed instrument, but the word “ sealed ” written within the scroll, a majority of the court held that if the body of the instrument showed an intention to make a sealed instrument, the scroll after the maker’s name would be a sufficient seal, and that it was not material whether this intention should be in the usual attesting clause: In witness whereof, 1 have hereunto put my hand and seal, or in any other part of the instrument, before the maker’s name. But as this instrument conveys no such intention, that it could not be received as a sealed instrument, one of the judges dissenting on the ground that in his opinion the scroll with the word “ seal ” written in it was sufficient to make it a specialty; and such lias been the current of authority in all the courts where an ink seal has been sustained as a substitute for a seal of wax or some other adhesive substance, that the intention to make a sealed instrument of any kind could be collected from the instrument itself, it would be a sufficient adoption of the scroll. We believe that our statute was made in reference to those decisions, •and as the recognition is not required to be in any particular form of words, that it is sufficient, if the intention of the party can be gathered from the language of the body of the writing. It would seem, therefore, that it was a sufficient deed, with the scroll, without the words added by way of amendment. If, however, it had been otherwise, and the employment of the words inserted essential, it does not seem to have been objectionable to make the amendment at the time it was made. The ■making of the deed by the sheriff was a ministerial act, and it is not reasonable to hold the innocent purchaser answerable for an omission so made. Sheriffs are often permitted to amend returns long after they have been made, and when so made, the amendment relates back to the time when it should have been made, and we can perceive no reason why he should not be permitted to make an amendment to his deed to [232] tbe purchaser, the more especially es it gave no new right, but was only extending to the purchaser that evidence of his purchase that the law entitled him to receive; the bid and the payment of the purchase money constituted the purchaser’s right, and the sheriff’s deed was only evidence of right. This amendment, if necessary, could be made after the sheriff had gone out of his office, because as he is held answerable for the truth of his returns, he is permitted to correct them, not for the purpose of misrepresenting, but showing what in truth had been done. The other objection, that the purchaser ought to have given the full appraisement, because he pointed out the property, is not well sustained. The proceedings in this case sought satisfaction of a debt by the enforcement of a voluntary lien, given by the mortgagor on specific property. And the decree and the execution was for the sale of that property, and not against the general property of the defendant, and consequently the statute that secured to the defendant in execution the privilege of pointing out property first to be levied on does' not apply, or at least so much of it as gives the privilege of pointing out property. Let the judgment be affirmed.