McDonough v. Jefferson County

HENRY, Associate Justice.

This was an action of trespass to try-title.

The plaintiffs are the heirs of Adalissa McDonough, who was the wife of B. F. McDonough, and died in 1886 while under coverture. The land was sold under execution in the year 1868 as the property of Cave Johnson, and the sheriff’s deed was made to J. W. McDonough, who conveyed it in 1881 to Adalissa McDonough. B. F. McDonough claimed to have been the real purchaser at the sheriff’s sale, and that he paid the purchase money.

In 1870 B. F. McDonough conveyed the land to William Allison by a deed that only described the land by a reference to the sheriff’s deed, which contained a full description of it, but which was not recorded until 1881. The deed to Allison was recorded in 1875.

William Allison conveyed the land to Daniel Lewis by a deed containing a full description of the land, which was duly recorded in the month of October, 1875.

Plaintiffs had judgment against Jefferson County.

The other defendants held under the deed to Daniel Lewis and pleaded the five years statute of limitation. They proved possession and payment of taxes for five consecutive years, and judgment was rendered in their favor.

Appellants assign the following error: “The plaintiffs having shown title in their mother as her separate property from the sovereignty of the soil, and then having proved their heirship from their said mother, Ada *539 lissa McDonough, the court erred in permitting defendants to read in evidence a certain deed from B. F. McDonough, plaintiffs’ father, in which their said mother did not join, dated May 18, 1870, the error consisting . in this: 1. Said deed reciting on its face that the grantor purchased the land at sheriff’s sale as the property of Cave Johnson, and referring to the sheriff’s deed for description of the land, such recitals charged defendants with the duty of investigating such sheriff’s sale, and their claim under said deed is inconsistent with good faith in their subsequent purchase thereof. 3. Said deed gave no metes and bounds and otherwise failed to identify the land, so as to make it a deed therefor duly registered as required by the statute of limitations of five years. And the court further erred in permitting G-. W. O’Brien, Higgins, and others to testify, substantially, to the effect that B. F. McDonough, the grantor in said deed, claimed the land as his own and that he purchased it at sheriff’s sale, in that the sheriff’s deed, being a matter of public record, was the best evidence as-to who purchased it, and.could not be changed or varied by parol; and in that such claim by McDonough could not affect the legal title of Mrs. Adalissa McDonough as to her separate property in the land.”

The fact that his wife held the title to the land did not prevent B. F. McDonough or any other person without any title to it making a deed for it which would become a basis for title under the five years statute of limitations. When the requirements of the law are fulfilled knowledge that the superior title is in another does not affect the right of the occupant of the land to acquire title under that statute.

The fact that the deed to Allison contained no description of the land except by reference to the sheriff’s deed, which itself was not upon record, was such a defect as to prevent the acquisition of title by limitation under that deed.

There was no error in overruling the objections to the statements of B. F. McDonough to the effect that he was the real purchaser of the land at sheriff’s sale, and that he paid the purchase, money. The evidence was proper to show an equitable title in the land. If the evidence had been objected to on the ground that it was hearsay the objection should have been sustained.

Questions about the deed to Allison and about where either the legal or the equitable title was vested become altogether immaterial in view of the fact that the deed from Allison to Lewis is the one under which defendants held possession of and claimed the land.

That deed is in form a quitclaim deed, and it is contended that it is not for that reason a deed under which title can be acquired by limitation.

We think that under the facts of this case the objection to its introduction as evidence was properly overruled.

There was no error committed in permitting the payment of taxes to be *540 proved by oral evidence over the objection that the tax receipts or record evidence should be produced, nor over the objection that the evidence was general and did not show the amount paid for any particular year. The judgment is affirmed.

Delivered February 10, 1891.

Affirmed.