
    Miller v. Alexander.
    Tlie action of trespass to try title may be maintained upon a merely equitable title. (Note 8.)-
    The bid and payment of the purobaso-money at an execution salo constitute the pm-ehasor’s right, and the deed is merely evidence of that right. If the deed be defective, for oxam-pie. if it huvo neither seal nor scroll, it is nevertheless admissible in evidence, even in a collateral proceeding, as conducing to show that uhe purchaser at the sale had acquired the equitable title to tlie land. (Note 9.)
    A contract concerning lands, although not under seal, was authorized by the 7th section of the act of 1840 (Hart. Dig., art. 2770) to be recorded ; and it was held that a sheriff’s deed, without a seal or scroll, was such a contract. (Note 10.)
    
      where a petition alleges a cause of action and prayed process against two, hut only one was cited, and there was no answer, but the judgment recited that the parties appeared by attorney and confessed judgment, and then proceeded to render judgment against “the aforesaid defendants:” Held, That the presumption was (before the act of 18R5) prima fa-cie that the attorney had authority from both defendants; but that if the one served with process had appeared and pleaded, as in the case of Ward v. [Sil Latimer, (2 Tex. R., 245,) the presumption might have been that tlie word “ defendants ” was a clerical mistake for “defendant,” and that it had reference to the defendant who appeared and answered. (Note 11)
    Appeal from Colorado. This suit was brought by Miller to recover of Alexander ti tract of hand to which the former claimed title and of which the latter was in possession. The defendant claimed as tenant of R. & D. G. Mills, who-were admitted as defendants and pleaded title in themselves derived from Lewis, through Brewster, to them by two conveyances, the former bearing date on the 19th day of February, 1S45, and the latter on the 6th of March of the same year.
    On the trial the plaintiff offered in evidence a judgment rendered by the District Court of Colorado county in September, 1813, in a suit wherein 15. W. Ferry, administrator, &c., was plaintiff, and Ira R. Lewis and George W. Thatcher were defendants. The defendants objected to the introduction oi the judgment, and thereupon offered in evidence the record of the proceedings in that suit, from which it appeared that a citation was issued and served on the defendant Thatcher, but no citation was issued to the defendant Lewis. Neither defendant answered. But the judgment, after stating the names of the parties, plaintiff and defendants, states that “ The parties appeared by attorneys and the defendants confessed judgment,” &c., and proceeded: It is therefore considered by the court that tlie aforesaid plaintiff recover of the aforesaid defendants,” &c.
    It was objected to flic introduction of tlie judgment in evidence that there was no service upon tlie defendant Lewis, and tiiat an attorney-at-law cannot confess a judgment against his client without a special power of attorney for that purpose. Tlie court overruled tlie objection and admitted the record in evidence. Tlie plaintiff then gat e in evidence the execution issued on the judgment and the return thereon; which showed a levy on the land on tlie 10th day of May, 1844, a postponement of tlie sale by order of the plaintiff’s attorney until tlie 1st Tuesday in August thereafter, and a sale on that day by the sheriff and a purchase of tlie land by the plaintiff in this suit, and the execution satisfied. The plaintiff then offered to read in evidence an instrument purporting to be tlie sheriff’s deed made in pursuanci; of the sale, dated-on the seventh clay of August, 1S44, and recorded in the proper oflice on the tenth day of September following; to the introduction of which tlie defendant objected, because there was no scrawl affixed to the signature of the sheriff. The court sustained the objection and excluded the evidence. The instrument recited the judgment, execution, levy, and sale, and purported to he under the hand ami seal of the officer “using a scrawl for a seal,” but tlie scrawl was omitted. The plaintiff then offered to read in evidence, a letter from the defendant in execution, Lewis, to the attorney of the plaintiff, by which, in consideration that the latter had postponed the sale, lie agreed to waive all exceptions to tlie proceedings under the execution. He also offered to prove by a witness the sale by the sheriff and the purchase and payment of tlie purchase-money by the plaintiff, but the court rejected tlie evidence.
    Tlie defendant then read in evidence a deed of conveyance of the land by Lewis to Brewster, dated on the 19th day of February, IS-lii, ami another of a later date from Brewster to the defendants, R. & D. G. Mills.
    The court instructed the jury (hat “unless the plaintiff had shown that lie has a perfect legal title by deed lie cannot recover; and that an equitable title would not bo sufficient; ” and refused to instruct that proof of llie judgment, execution, lev}-, sale, and payment of tlie purchase-money by the plaintiff gave a title sufficient to maintain the action. There was a verdict and judgment for tlie defendants, and tlie plaintiff appealed.
    
      
      J. B. Jones, for appellant.
    I. The principal question presented in this ease is whether a snit for the recovery of land can bo maintained on any oilier than a strict technical legal title.
    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 lie recorded, and the recording was notice to all subsequent purchasers. (Hart. Dig-., art. 2770; Yales v. Ilouston, 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 r. Barnes, 3 Gill & Johns., 359-3GS; Barney v. Patterson, G Harr. & Johns., 204-5; Fleming v. Powell, 2 Tex. B., 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 sheriff 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.”
    The 17th section of the act of 18-10, 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 purchase]-? 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 laud, instead of extending it to the creditor he executes a deed to the purchaser. (4 Kent’s Com.)
    A purchaser under a sale by execution must show a judgment, execution, levy, and sheriff’s deed. (2 Ala. It., G7G; 1 Mon. R., 154; 3 Mon. It., 272 and 99; 9 OhioR., 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.)
    Wlien the, deed is executed and delivered, it, by relation, takes effect as of the day the 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 sell and did sell to him and executed a deed. (4 Wheat., 503, 50G; 12 Johns. B., 213.)
    A purchaser of land at a sheriff’s sale acquires no right of entry until he obtains a deed. (9 Da. R., 1G5; see also S Johns. R., 529, 333, 3G1.)
    
      At common law lands could not be sold under execution. It is only by statute that such sales are authorized; and the mode pointed out by statute must be strictly followed.
    II. If we are right in the position that a conveyance from the sheriff is necessary to vest the title to real estate in a purchaser under execution, then it becomes necessary to examine and see whether the paper purporting to be a conveyance that was rejected by the court below can be considered a conveyance under the laws of this State.
    The Clh section of the act of 1810, concerning conveyances, (Hart. Dig., art. 167,) provides, “That no estate of inheritance or freehold, or for a term of more than live years, in lands and tenements shall be conveyed from one to another, unless the conveyance be declared by writing, sealed and delivered.” The above section also provides that a scrawl may be used for a seal. Ar( .171, quoted above, is a part of this act, and when it speaks of conveyances by sheriffs, &c., it must be held to meau a conveyance as defined in the 1 st section Art. 1315, before quoted, was passed subsequently, and when the legislature directed that after a sale had been made the sheriff should execute a conveyance, it must be presumed that they meaut a conveyance as defined by our laws. We therefore conclude that this instrument, having no seal or scrawl, was properly rejected by the court below.
    III. The fourth error assigned is the only other one that we deem it material to notice.
    “It was error to charge and instruct the jury that unless the plaintiff had shown that he has a perfect legal title by deed he cannot recover, and that an equitable title would not be sufficient to enable plaintiff to recover.”
    It will be recollected that the defendants pleaded that the}' and their vendee are innocent purchasers for a valuable consideration without notice of the plaintiff’s claim.
    The deed from Lewis to Brewster, and the deed from Brewster to defendants, prove that they were purchasers for a valuable consideration ; and the record does not show that any attempt was made to prove that they had any notice of the plaintiff’s claim to the premises sued for before their purchase ; and unless there is something in the record to show that they had constructive notice it must he considered that they were purchasers without notice.
    The recording of the pretended conveyance from the sheriff cannot be. considered as constructive notice to these defendants, for a conveyance, must be sealed and acknowledged, or proved for record and recorded, to operate as a constructive notice. (Hart. Dig., art. 167.)
    IV. In addition to the above it, will be noticed that the defendants objected to the introduction, as evidence by plaintiff, of the record and judgment against Lewis upon which the execution was issued, and also to the execution and return thereon, because the said Lewis was never cited, never appeared therein, and no citation ever issued to him; and because an attorney at law had no right to confess a judgment against his client without a special power oE attorney for that purpose, because the record does not show what attorney appeared and confessed said judgment, and because said return was illegal.'indefinite, and insufficient; which objection was overruled and defendant excepted. It may be important for the court to notice this matter in ease the judgment of the court below shall he reversed.
   Wheeler, J.

The principal question in tiffs case arises upon the ruling of the court on the admissibility of evidence and in instructions to the jury to the effect that the plaintiff could not maintain the action on an equitable title.

We have frequently ruled in effect, if not expressly, that an action t.o recover the possession of laud may he maintained on an equitable as well as on a legal title. (Browning v. Estis, 3 Tex. R., 462; Neill v. Reese, 5 Id.; Howard and Wife v. Perry, decided at the last term at Austin.) Of the propriety and, indeed, the necessity of maintaining this doctrine we entertain no doubt. Unless we were prepared to hold that one who lias the equitable hut not the legal 'title, either has not the ability to enforce his rights or mast do so by two suits .instead of one, we must maintain his right to recover on his equitable title. 'That a party may recover on such title necessarily results from the rejection from our law of procedure of the distinctions between legal and equitable remedios, and from the doctrine, as well established as anything in our jurisprudence can be by the uniform adjudications of the court from its organization to the present time, that the rights of parties, whatever they may. be and in whatever court cognizable in those countries where legal and equitable rights are administered in separate jurisdictions, may here be adjudicated and determined in every action wherein they are drawn in question, without regard to their distinctions or to the form of the action.

AVc have heretofore taken occasion to notice that in Pennsylvania, where they liave no separate Court of Chancery, ejectment may be maintained upon an equitable title. (Neill v. Reese, 5 Tex. R., —.) And this upon the principle, as it is stated, that having no Couit of Equity they are “compelled to consider that as already done which chancery would enforce the performance of.” (4 Serg. & R., 208, 301.) Consequently, whenever chancery would' decree a conveyance, ejectment may ho maintained. (Id.; 8 Id., 485.)

In Pennsylvania ejectment is an equitable action. (Id.) And so with us, from necessity, is every action to which an injured party maybe compelled to resort for the enforcement of ills rights.

The. instrument executed by the sheriff, intended as a conveyance, was complete in every particular except the scrawl, which was omitted. It is to be regretted that it should have been thought necessary at this day to make a circumstance so trifling as a mere flourish of tiio pen at the name of the signer-essential to render the conveyance effectual to pass the legal title. But though the instrument be not good and effectual to pass tire legal title, yet it was admissible in evidence as conducing to show that the purchaser at the sale had acquired the equitable title to the land.

In Fleming v. Powell this court treated tiro making of the. deed hv the sheriff as a mere ministerial act. The deed, it was said, did not give the right. “Tile hid and payment of the purchase-money constituted the purchaser’s right, and the sheriff's deed was only evidence of right.” (2 Tex. R., 225, 230-1.)

But it is insisted for the appellee that the instrument in this case, not being a legal conveyance, though recorded, did not operate as constructive notice to the defendants. And we are referred to the 1st section of the act of 1840, concerning conveyances. (Hart. Dig., art. 167.) That section provides that a' conveyance “ declared by writing, sealed and delivered,” shall not he good as “against a purchaser for valuable consideration, not having notice thereof,” unless duly acknowledged or proved for recording and deposited with the clerk of the County Court for that purpose. It lias no reference to contracts for tlie sale of lands not under seal, nor does it prescribe what instruments may be recorded. But, by section 7 of the same act (Hart. Fig., art. 2770) it is provided that “every title bond or other written contract in relation to lands may lie proved, certified, or acknowledged, and recorded in the same manner as deeds for the conveyance of land; and such proof, acknowledgments, or certificates, and the delivery of such bond or contract to the clerk of the proper county to be recorded, shall he taken and held as notice to all subsequent purchasers of (.lie existence of such bond or contract.”

This instrument; though not, technically, a deed for the conveyance of land, is, nevertheless, a “contract in relation to lands,” within the meaning of the statute.

It i< further insisted for the, appellee that (ho judgment on which the execution issued was void its against the defendant Lewis, having been confessed, by an attorney, appearing voluntarily, without ci'ation to the defendant.

At present, the law requires that an attorney who appears for and confesses judgment against a defendant, not served with process shall file of record the' warrant, of attorney under which ho acts. (Hart. Dig., art. 770.) But' ■we are aware of no law which required this at the date of the rendition of the .judgment in this case. And we have heretofore decided, where an attorney appeared for a party against whom no writ had issued, that an authority would be presumed. ' (Merritt et al. v. Clow, 2 Tex. R., 582.)

Note 8. — Miller v. Alexander, 13 T., 497; Wright v. Thompson, 14 T., 558; Alexander v. Miller, 1ST., 893; Rogers r. Bracken, 15 T.. 504; Secrest v. Jones, 21 T., 121; Herrington v. Williams, 31 T., 418; Viser v. Rice, 33 T„ 139 ; Walker a. Howard, 31T., 478. One in the actual, peaceable, and lawful possession of lands may maintain an action against a mere trespasser by whom he has been dispossessed. (Lea v. Hernandez, lü T., 137; Wilson v. Palmer, 18 T., 592; Alexander v. Gilliam, 39 T., 227.)

Note 9. — McOowen t. Wheeler, 20 T., 372. Where an administrator’s sale has been regularly made and the purchase-money paid, (confirmation not being required by the.laws then in force.) a deed from the administrator to the purchaser is not essential to the defense of the latter or those claiming under him in a suit by the heirs for the recovery of the land. (Bartlett a. Cocke. 15471.)

Note 10. — Holman v. Criswell, 13 T., 38.

Note 11. — Thompson r. Griffis, 19 T., 115; Chester it. Walters, 30 T., 63; Smith v. Wood, 37 T., 616; Caldwell v. Brown, 43 T„ 216.

There were two defendants. Neither appeared in person, nor was there an answer filed by either. If the one served with process liad appeared and pleaded, as in the case of Ward et al. v. Latimer et al., (Id., 245, 247,) we might have been warranted in the supposition that the word “defendants,” in the plural, in the entry of the judgment was a clerical mistake, and that it had reference to the appearance by answer, which was only by the party on whom there was service. But the circumstances which led to the conclusion in that case are wanting in this.

We conclude that to entitle the plaintiff to recover it was not necessary for him to produce a technical legal conveyance from the sheriff, but lie might recover on proof that he was the equitable owner of the land; and that to constitute him such it would be sufficient to prove the judgment, execution, levy, and sale, and that he was the purchaser and paid the" purchase-money, that is, the facts which were necessary to entitle him to a conveyance; and that the sheriff executed, though defectively, and delivered an instrument pur» porting .to be a conveyance. These facts the plaintiff proposed to prove; and we entertain no doubt that if proved they amounted to evidence of title sufficient to maintain the action.

We are further of opinion that the mere omission of the scrawl did not authorize tlie rejection of the instrument offered in evidence, but that it was admissible to prove the plaintiff’s purchase, and when duly recorded was constructive notice of ills right.

We are of opinion that the judgment be reversed and the case remanded for further proceedings.

Judgment reversed.  