Walker, J.
In 1841, on the twenty-third day of February, William Lawrence confessed a judgment before James McGee, a justice of the peace for Harris county, for the sum of $24, in favor of S. G. Powell. Daniel Busby was a constable, elected for one of the military beats of Harris county.
On the same day Lawrence pointed out a league and labor of land, described as the headright of Jolm W. Baker, assigned to Á. Wynns. Lawrence gave directions to Busby to sell the land without appraisement, on twenty days notice, for cash. On the same paper given by Lawrence to Busby, and of the same 'date, Wynns signed an agreement which reads thus: “I agree that the above property may be made use of for the purpose of the above advertisement.” This is signed by A. Wynns, and witnessed by D. Busby.
Upon the validity of these proceedings the appellees count for title, and offer a deed from Daniel Busby, constable of Harris county, to Peter Wilson their ancestor.
It was in evidence that the records of justices’ courts, and particularly those of McGee and Babcock, were carelessly kept; that their papers and dockets were scattered and destroyed.
The recitals in the deed from Busby to Wilson call for certain judgments and executions, which should have been found upon the dockets of these justices, but, after diligent search, could not be found. It was proved that one hundred dollars, 'the consideration named in the deed, was a fair price for the land at the time it was sold.
It was also in evidence that Daniel Busby held and exercised [90]*90the office of constable in the city of Houston, where he resided ah the time of the sale.
The deed, with all its recitals, was admitted in evidence. The defendants introduced a patent for the land to A. Wynns ; also a deed from A. Wynns to John Levi, and also a deed from Levi to Charles Leland, and receipts for taxes paid upon the land.
■ The records of the County Court of Harris county were introduced to show that in 1839 the county was divided into military districts, and that the land in controversy did not lie within the district .where Busby lived and exercised his office of constable.
It is said in Miller v. Alexander, 8 Texas, 36, “that the hid and payment of the purchase money at an execution sale constitute the purchaser’s right, and the deed is merely evidence of that right.”
If the deed be defective—if it have neither seal nor scroll—it is nevertheless admissibledn evidence, even in a collateral proceeding, as conducing to show that the purchaser at the sale had acquired the equitable title to the land.;
But the deed in this case is not defective in its execution ; hut the difficult question for solution here arises, did it convey the land in question ? Though the land sold did lie without the ministerial territory, the parties interested, Lawrence, Powell, and Wynns, might have authorized him to sell it, or any other auctioneer or agent; they might have gone further and Wynns might have authorized him to convey it'to the purchaser. But the question is, did he do it ?—and we think the question can be answered only in the negative. The law did not authorize Bushy to seize property on execution beyond his ministerial territory; it did not authorize him to sell property so seized. Three things were necessary to support his deed; a valid judgment, a valid execution, and a valid sale.
Following the authority in Waters and others v. McGrew and others, 16 Texas, 506, and Stroud v. Springfield, 28 Texas, 649, [91]*91we might presume much in favor of this deed on account of its antiquity ; perhaps we are bound to presume the judgments- and the executions recited in the deed. But we can go no further in face of the facts proven in this case; for, upon the presumption that the parties did agree that he should sell the land, he could only sell it as any private individual could have done, if duly authorized by Wynns so to do. But he could go no further ; and to have made-the transaction complete, Wynns should himself have deeded the land to Wilson, the purchaser. We have said we might, perhaps, in favor of an ancient deed, presume that there was a valid judgment and a valid execution; but we think, at the same time, it Would be going too far to allow a plaintiff in ejectment to recover, who counts upon a sheriff’s deed, and is unable to produce either judgment or execution.
Not deeming this question, however, material to the decision of the case, we nevertheless fortify our opinion by the authorities, which we find to be carefully cited in the appellants’ brief. (Blackwell on Tax Titles, second edition, 76; Hamilton v. Adams, 2 Murphey, 162; Jackson v. Roberts, 11 Wend., 425 to 440; Natches v. Minor, 4 Smedes & Mar., 602, 631; 10 Smedes & Mar., 246; Smith v. Morrman, 1 Monroe, 154; Dun v. Merriwether, 1 A. K. Marsh., 158; Terry v. Bleight, 3 Monroe, 270; Stevens v. Robertson, Id., 97; Weyand v. Tipton, 5 Serg. & Rawle, 332; Bowen v. Bell, 20 John., 338; Hinman v. Pope, 1 Gilman, 131; Smith v. State, 13 Smedes & Mar., 140; Dufor v. Comfrane, 11 Mart., 607; Wheaton v. Sexton, 4 Wheaton, 503; Ware v. Bradford, 2 Ala., 676; McEntyre v. Durham, 7 Iredell, 151.)
The making of a deed by a sheriff is but a ministerial act; and if the judgment and execution be valid and regular, the deed itself may be omitted in the evidence, if it be shown that the party claiming under the deed purchased under the execution, (See Fleming v. Powell, 2 Texas, 231.) A sheriff’s deed must [92]*92he treated as a nullity without proof of his power 'to sell; and unless it is supported by the judgment and execution it will convey no title. (See Wofford v. McKinna, 23 Texas, 43.) This -case appears to be decisive of the one at bar. Wheeler, 0. J., in deciding the case, says : “ 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,'hut not .to constitute it a deed. A sheriff’s deed inoperative without proof of his power to sell; it is no evidence of title without 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.”
A sheriff, by the recitals in his deed, óannot bind a party whose land he may have improperly sold; the recitals are to be regarded only as inducement. (Howard v. North, 5 Texas, 290; Jackson v. Pratt, 10 Johnson, 381.) The maxim omnia ‘prcesumuntur recte is only applicable to the record of judicial proceedings, and is not to be applied to the exercise of ministerial functions. In the case of Jackson v. Roberts’ executors, 11 Wend., 433, the court say: “We may well inquire whether a sheriff has power to, make evidence in favor of his own acts against others, which shall be conclusive against their rights. If it is evidence against a stranger, of what is it evidence ? Of all the facts necessaly to máke out the grantee’s title, or part only ? If the former, it must be evidence of judgment and execution, and of the debtor’s title to the premises; yet it is well settled that it is not evidence of these things, but they must be proved aliunde.
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Walker, J.
In 1841, on the twenty-third day of February, William Lawrence confessed a judgment before James McGee, a justice of the peace for Harris county, for the sum of $24, in favor of S. G. Powell. Daniel Busby was a constable, elected for one of the military beats of Harris county.
On the same day Lawrence pointed out a league and labor of land, described as the headright of Jolm W. Baker, assigned to Á. Wynns. Lawrence gave directions to Busby to sell the land without appraisement, on twenty days notice, for cash. On the same paper given by Lawrence to Busby, and of the same 'date, Wynns signed an agreement which reads thus: “I agree that the above property may be made use of for the purpose of the above advertisement.” This is signed by A. Wynns, and witnessed by D. Busby.
Upon the validity of these proceedings the appellees count for title, and offer a deed from Daniel Busby, constable of Harris county, to Peter Wilson their ancestor.
It was in evidence that the records of justices’ courts, and particularly those of McGee and Babcock, were carelessly kept; that their papers and dockets were scattered and destroyed.
The recitals in the deed from Busby to Wilson call for certain judgments and executions, which should have been found upon the dockets of these justices, but, after diligent search, could not be found. It was proved that one hundred dollars, 'the consideration named in the deed, was a fair price for the land at the time it was sold.
It was also in evidence that Daniel Busby held and exercised [90]*90the office of constable in the city of Houston, where he resided ah the time of the sale.
The deed, with all its recitals, was admitted in evidence. The defendants introduced a patent for the land to A. Wynns ; also a deed from A. Wynns to John Levi, and also a deed from Levi to Charles Leland, and receipts for taxes paid upon the land.
■ The records of the County Court of Harris county were introduced to show that in 1839 the county was divided into military districts, and that the land in controversy did not lie within the district .where Busby lived and exercised his office of constable.
It is said in Miller v. Alexander, 8 Texas, 36, “that the hid and payment of the purchase money at an execution sale constitute the purchaser’s right, and the deed is merely evidence of that right.”
If the deed be defective—if it have neither seal nor scroll—it is nevertheless admissibledn evidence, even in a collateral proceeding, as conducing to show that the purchaser at the sale had acquired the equitable title to the land.;
But the deed in this case is not defective in its execution ; hut the difficult question for solution here arises, did it convey the land in question ? Though the land sold did lie without the ministerial territory, the parties interested, Lawrence, Powell, and Wynns, might have authorized him to sell it, or any other auctioneer or agent; they might have gone further and Wynns might have authorized him to convey it'to the purchaser. But the question is, did he do it ?—and we think the question can be answered only in the negative. The law did not authorize Bushy to seize property on execution beyond his ministerial territory; it did not authorize him to sell property so seized. Three things were necessary to support his deed; a valid judgment, a valid execution, and a valid sale.
Following the authority in Waters and others v. McGrew and others, 16 Texas, 506, and Stroud v. Springfield, 28 Texas, 649, [91]*91we might presume much in favor of this deed on account of its antiquity ; perhaps we are bound to presume the judgments- and the executions recited in the deed. But we can go no further in face of the facts proven in this case; for, upon the presumption that the parties did agree that he should sell the land, he could only sell it as any private individual could have done, if duly authorized by Wynns so to do. But he could go no further ; and to have made-the transaction complete, Wynns should himself have deeded the land to Wilson, the purchaser. We have said we might, perhaps, in favor of an ancient deed, presume that there was a valid judgment and a valid execution; but we think, at the same time, it Would be going too far to allow a plaintiff in ejectment to recover, who counts upon a sheriff’s deed, and is unable to produce either judgment or execution.
Not deeming this question, however, material to the decision of the case, we nevertheless fortify our opinion by the authorities, which we find to be carefully cited in the appellants’ brief. (Blackwell on Tax Titles, second edition, 76; Hamilton v. Adams, 2 Murphey, 162; Jackson v. Roberts, 11 Wend., 425 to 440; Natches v. Minor, 4 Smedes & Mar., 602, 631; 10 Smedes & Mar., 246; Smith v. Morrman, 1 Monroe, 154; Dun v. Merriwether, 1 A. K. Marsh., 158; Terry v. Bleight, 3 Monroe, 270; Stevens v. Robertson, Id., 97; Weyand v. Tipton, 5 Serg. & Rawle, 332; Bowen v. Bell, 20 John., 338; Hinman v. Pope, 1 Gilman, 131; Smith v. State, 13 Smedes & Mar., 140; Dufor v. Comfrane, 11 Mart., 607; Wheaton v. Sexton, 4 Wheaton, 503; Ware v. Bradford, 2 Ala., 676; McEntyre v. Durham, 7 Iredell, 151.)
The making of a deed by a sheriff is but a ministerial act; and if the judgment and execution be valid and regular, the deed itself may be omitted in the evidence, if it be shown that the party claiming under the deed purchased under the execution, (See Fleming v. Powell, 2 Texas, 231.) A sheriff’s deed must [92]*92he treated as a nullity without proof of his power 'to sell; and unless it is supported by the judgment and execution it will convey no title. (See Wofford v. McKinna, 23 Texas, 43.) This -case appears to be decisive of the one at bar. Wheeler, 0. J., in deciding the case, says : “ 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,'hut not .to constitute it a deed. A sheriff’s deed inoperative without proof of his power to sell; it is no evidence of title without 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.”
A sheriff, by the recitals in his deed, óannot bind a party whose land he may have improperly sold; the recitals are to be regarded only as inducement. (Howard v. North, 5 Texas, 290; Jackson v. Pratt, 10 Johnson, 381.) The maxim omnia ‘prcesumuntur recte is only applicable to the record of judicial proceedings, and is not to be applied to the exercise of ministerial functions. In the case of Jackson v. Roberts’ executors, 11 Wend., 433, the court say: “We may well inquire whether a sheriff has power to, make evidence in favor of his own acts against others, which shall be conclusive against their rights. If it is evidence against a stranger, of what is it evidence ? Of all the facts necessaly to máke out the grantee’s title, or part only ? If the former, it must be evidence of judgment and execution, and of the debtor’s title to the premises; yet it is well settled that it is not evidence of these things, but they must be proved aliunde. The sheriff sets forth in his deed that he sold, by virtue of an execution, the property of the defendant in that suit. If his dictum, is con-[93]*93elusive evidence of this, I can conceive of no safeguard against sales on pretended or forged executions ”
But the appellees insist that Wynns's agreement, which we will here again quote—“I hereby agree that the above property may be made use of for the purpose of the above advertisement”—must be taken as a power authorizing the sale of the land, or it must operate as an estoppel against Wynns and all claiming in privity with him.
As a power, it uses no words of bargain, sale or conveyance ; it is without consideration and without a seal. (See Paschal's Digest, article 997.) The constable could net have regarded it as a power, for he acted in his official capacity, and in no way as the agent, auctioneer, attorney, broker, or proxy of Wynns.
The constable is an officer of the law, and the execution, if he had one, was the warrant for his ministerial act.
As an estoppel the. instrument was not good, for the simple reason that it was not good as a power or deed, nor was it matter of record in a court of justice.
But it is evident from the recitals in the deed that both the constable and the purchaser treated it as a power.
Another inquiry arises: Are Wynns and those in privity witli him chargeable with fraud, as one would be whe stands by in silence and sees his property sold to an innocent purchaser for a valuable consideration ?
We cannot see wherein there was any fraud intended or practiced. It does not indeed appear whether the property was sold as the property of Wynns or Lawrence. The constable, Busby, must have known that the land in fact belonged to Wynns, and this fact is conclusively brought home to Wilson, the purchaser, by the recitals in his deed. In fact the .deed purports to convey land belonging to Wynns and not to Lawrence. But it may be said that Wynns agreed that the land should be sold for Lawrence’s debt. -Suppose that we consider that he did thus agree, we will [94]*94only hold that he agreed to a legal sale, for, if he had even intended otherwise, he could not'have invested Busby with power to make an illegal sale, and the sale in this case was not legal. See the eighth section of an act to repeal and amend certain parts or portions of an act entitled, “ An act concerning executions,” approved December 22, 1840 :
“ Be it enacted, That a constable shall not have power to act in civil cases out of the beat to which he belongs, except in cases of attachment; provided, that the constable residing in incorporated towns shall be authorized to act within the limits of said- towns.”
This act restricts the constable, except in cases of attachment, when executing civil process, to the territorial limits of his beat, and this too is an act concerning executions. We admit that it is not necessary for the sheriff or constable to go upon the land upon which there was a judgment lien; but the judgments of the justices of the peace do not operate as a lien until they are taken up to a court of record.
The judgment binds the land, when rendered in a court of record, within the county where it is rendered. The land may be said to be in the custody of the law, and it is not necessary for the sheriff or constable to take actual pedal possession, but we believe it to be otherwise where the lands are not under judgment lien, and the officer must carry his execution to the premises, and by virtue of it alone he acquires a right under the law to sell. (See Wood v. Colvin, 5 Hill, N. Y., 230; Catlin v. Jackson, 8 Johnson, 546; Kent v. Roberts, 2 Story, 603.)
But the constable in this case had no power to go upon the land to take pedal possession and make his levy; and we therefore hold that all his acts, wherein he transcended his legal authority, are void, and conferred no title on Wilson, the purchaser. The judgment of the district court is reversed, and the cause remanded.
Reversed and remanded..