PARDEE, Circuit Judge
(after stating the facts as above). The plaintiffs in error, plaintiffs below, were entitled to recover the land in controversy as against the Houston Oil Company, unless said company established its title; and the question before us is whether on the trial the Houston Oil Company proved by undisputed evidence its title to the land in controversy through mesne conveyances from the heirs of George Brown.
The basis of the claimed title is a sheriff’s deed dated September 4, 1878, in support of which no record evidence of judgment and execution thereon were produced; but, the court records having been admittedly destroyed, evidence was offered and admitted tending to prove a judgment and execution.
It is undisputed in Texas that, for a sheriff’s deed to convey title, it must be supported by a valid judgment of a court of competent jurisdiction and a valid execution thereunder. Ordinarily, this proof is made by duly certified copies from the records of the courts wherein the judgment was rendered. Where, as in this case, such records have been so lost or destroyed that certified copies of the proceedings cannot be produced, the proof may be made by other legal evidence. Where the records are destroyed and considerable time has. elapsed, the decisions in Texas- are that, where possession is shown under the sheriff’s deed, a judgment such as recited in the execution' produced may be found by the jury (Walker v. Emerson, 20 Tex. 707, 73 Am. Dec. 207) and, where 30 years have elapsed, the existence of the judgment and execution recited in the sheriff’s deed ought to be presumed (Giddings v. Day, 84 Tex. 605, 19 S. W. 682).
In Tucker v. Murphy, 66 Tex. 355, 359, 1 S. W. 76, 78, Mr. Justice Stayton, for the Supreme Court, says:
“It is true that, ordinarily, after the lapse of 30 years, tbe power of a person who assumes to bave executed a deed under power of another or in a fiduciary capacity will be presumed. This, however, is but a presumption of fact, which is indulged upon the idea that time has made it impracticable to make such proof of the actual existence of the power, as may be made in regard to matters recently transpiring. Whether such a presumption will or may be indulged in a given ease must depend on the facts presented. In one case the facts in relation to a deed, purporting to have been executed under a power, may be such as to preclude the idea that there still exists means, other than such as the deed itself affords, and the acts of the parties claiming under or adversely to it long continued present, whereby to prove the actual existence of the power, and in such a case the power will be often presumed. In another case the deed may be shown by itself to have been executed under a power, but under such circumstances that the primary proof of the existence of the power must be presumed to exist. In such case the failure to produce such primary proof, or to show that it cannot be produced, would seem to require the holding that the evidence of the existence of the power, which arises from the ancient character of the instrument, and [865]*865the action of those interested under or adversely to it, is not sufficient proof. In the case before ns the deed which it is claimed is sufficient evidence of the power of the persons who executed it to pass the title which it purports to convey shows, if it spealis the truth, that the probate court for Goliad county granted letters of administration on the estate of Jacob Aaron, that by an order entered on its minutes it directed the administrator of that estate to sell the land certificate in question, and that by an order subsequently entered, in a similar manner, the sale, after being properly reported, was confirmed.”
The above-cited and other Texas cases we have examined do not provide for the presumption of any other judgment or execution than according to the recitals or descriptions thereof found in the sheriff’s deed, and we know of no reason supported by the text-books or adjudged cases holding that, where a sheriff’s deed is produced, any judgment can be presumed that varies from the execution if 1hat is produced, or from the recitals in the sheriff’s deed if neither the judgment nor execution can be produced.
In French v. Edwards, 13 Wall. 515, 20 L. Ed. 702, Mr. Justice Field, for the Supreme Court, says:
“It Is also contended that the recitals in the deed were not required, and therefore do not vitiate the deed; but the cases cited fail to support the position as broadly as here stated. They only show that a defective or erroneous recital of the execution, under which a sheriff has acted, will not vitiate his deed if the execution be sufficiently Identified. Every deed executed under a power must refer to the power. As an independent instrument of the holder of the power, it would not convey the interest intended. The deed of a sheriff forms no exception to the rule. But it is not essential that the execution, or judgment under which he acted, should be set out in full, or that his proceedings on the sale should be detailed at length. It Is sufficient if they be referred to with convenient certainty, and any misdescription not actually misleading the grantee would undoubtedly bo considered immaterial. But if the manner in which the power is exercised is recited, it being a proper matter for recital, then the recital is evidence, not against strangers, but against the grantee and parties claiming under him. Thus, if a sheriff should refer in Ms deed to an execution issued to Mm, and recite that, in obedience to it and the statute in such case provided, he had sold the property to the highest bidder, it would be presumed that he had done his duty in the premises, given the proper advertisement, and made the sale at public auction in the proper manner. But if he should go farther and recite that he had sold the property, not at public auction, but at a private sale, the deed would be void on its face; the sale by auction being essential to a valid execution of the authority of the sheriff. The vendee, by accepting the conveyance with this solemn declaration of the officer as to the manner in which his power was exercised, would be estopped from denying that the fact was as recited.”
In the present case, taking it that 30 years had elapsed since the sheriff’s deed, it was permissible for the court to have presumed the judgment and execution thereunder of the description given thereof in the deed; but it was not permissible to presume any judgment substantially varying therefrom.
This would dispose of the case were it not for the fact that the judgment recited in the sheriff’s deed would be void on its face because the judgment recited is a personal judgment, and a personal judgment rendered against unknown heirs for a specific sum of money and costs is void on its face as not in accordance with due process of law.
[866]*866It therefore appears that, to sustain the court below in directing a verdict, we must find that the oil company was not estopped by the sheriff’s deed, although it offered the same in evidence and claimed title thereunder from showing a valid judgment and execution under which the sheriff had power to and did sell; and, further, that the evidence establishing such other judgment and execution was undisputed and conclusive.
As a general proposition based on reason and authority, a claimant under a deed is estopped from denjdng the material recitals contained in such deed, and recitals of the power to convey asserted by the grantor are material. Bigelow on Estoppel (4th Ed.) 354; French v.
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PARDEE, Circuit Judge
(after stating the facts as above). The plaintiffs in error, plaintiffs below, were entitled to recover the land in controversy as against the Houston Oil Company, unless said company established its title; and the question before us is whether on the trial the Houston Oil Company proved by undisputed evidence its title to the land in controversy through mesne conveyances from the heirs of George Brown.
The basis of the claimed title is a sheriff’s deed dated September 4, 1878, in support of which no record evidence of judgment and execution thereon were produced; but, the court records having been admittedly destroyed, evidence was offered and admitted tending to prove a judgment and execution.
It is undisputed in Texas that, for a sheriff’s deed to convey title, it must be supported by a valid judgment of a court of competent jurisdiction and a valid execution thereunder. Ordinarily, this proof is made by duly certified copies from the records of the courts wherein the judgment was rendered. Where, as in this case, such records have been so lost or destroyed that certified copies of the proceedings cannot be produced, the proof may be made by other legal evidence. Where the records are destroyed and considerable time has. elapsed, the decisions in Texas- are that, where possession is shown under the sheriff’s deed, a judgment such as recited in the execution' produced may be found by the jury (Walker v. Emerson, 20 Tex. 707, 73 Am. Dec. 207) and, where 30 years have elapsed, the existence of the judgment and execution recited in the sheriff’s deed ought to be presumed (Giddings v. Day, 84 Tex. 605, 19 S. W. 682).
In Tucker v. Murphy, 66 Tex. 355, 359, 1 S. W. 76, 78, Mr. Justice Stayton, for the Supreme Court, says:
“It is true that, ordinarily, after the lapse of 30 years, tbe power of a person who assumes to bave executed a deed under power of another or in a fiduciary capacity will be presumed. This, however, is but a presumption of fact, which is indulged upon the idea that time has made it impracticable to make such proof of the actual existence of the power, as may be made in regard to matters recently transpiring. Whether such a presumption will or may be indulged in a given ease must depend on the facts presented. In one case the facts in relation to a deed, purporting to have been executed under a power, may be such as to preclude the idea that there still exists means, other than such as the deed itself affords, and the acts of the parties claiming under or adversely to it long continued present, whereby to prove the actual existence of the power, and in such a case the power will be often presumed. In another case the deed may be shown by itself to have been executed under a power, but under such circumstances that the primary proof of the existence of the power must be presumed to exist. In such case the failure to produce such primary proof, or to show that it cannot be produced, would seem to require the holding that the evidence of the existence of the power, which arises from the ancient character of the instrument, and [865]*865the action of those interested under or adversely to it, is not sufficient proof. In the case before ns the deed which it is claimed is sufficient evidence of the power of the persons who executed it to pass the title which it purports to convey shows, if it spealis the truth, that the probate court for Goliad county granted letters of administration on the estate of Jacob Aaron, that by an order entered on its minutes it directed the administrator of that estate to sell the land certificate in question, and that by an order subsequently entered, in a similar manner, the sale, after being properly reported, was confirmed.”
The above-cited and other Texas cases we have examined do not provide for the presumption of any other judgment or execution than according to the recitals or descriptions thereof found in the sheriff’s deed, and we know of no reason supported by the text-books or adjudged cases holding that, where a sheriff’s deed is produced, any judgment can be presumed that varies from the execution if 1hat is produced, or from the recitals in the sheriff’s deed if neither the judgment nor execution can be produced.
In French v. Edwards, 13 Wall. 515, 20 L. Ed. 702, Mr. Justice Field, for the Supreme Court, says:
“It Is also contended that the recitals in the deed were not required, and therefore do not vitiate the deed; but the cases cited fail to support the position as broadly as here stated. They only show that a defective or erroneous recital of the execution, under which a sheriff has acted, will not vitiate his deed if the execution be sufficiently Identified. Every deed executed under a power must refer to the power. As an independent instrument of the holder of the power, it would not convey the interest intended. The deed of a sheriff forms no exception to the rule. But it is not essential that the execution, or judgment under which he acted, should be set out in full, or that his proceedings on the sale should be detailed at length. It Is sufficient if they be referred to with convenient certainty, and any misdescription not actually misleading the grantee would undoubtedly bo considered immaterial. But if the manner in which the power is exercised is recited, it being a proper matter for recital, then the recital is evidence, not against strangers, but against the grantee and parties claiming under him. Thus, if a sheriff should refer in Ms deed to an execution issued to Mm, and recite that, in obedience to it and the statute in such case provided, he had sold the property to the highest bidder, it would be presumed that he had done his duty in the premises, given the proper advertisement, and made the sale at public auction in the proper manner. But if he should go farther and recite that he had sold the property, not at public auction, but at a private sale, the deed would be void on its face; the sale by auction being essential to a valid execution of the authority of the sheriff. The vendee, by accepting the conveyance with this solemn declaration of the officer as to the manner in which his power was exercised, would be estopped from denying that the fact was as recited.”
In the present case, taking it that 30 years had elapsed since the sheriff’s deed, it was permissible for the court to have presumed the judgment and execution thereunder of the description given thereof in the deed; but it was not permissible to presume any judgment substantially varying therefrom.
This would dispose of the case were it not for the fact that the judgment recited in the sheriff’s deed would be void on its face because the judgment recited is a personal judgment, and a personal judgment rendered against unknown heirs for a specific sum of money and costs is void on its face as not in accordance with due process of law.
[866]*866It therefore appears that, to sustain the court below in directing a verdict, we must find that the oil company was not estopped by the sheriff’s deed, although it offered the same in evidence and claimed title thereunder from showing a valid judgment and execution under which the sheriff had power to and did sell; and, further, that the evidence establishing such other judgment and execution was undisputed and conclusive.
As a general proposition based on reason and authority, a claimant under a deed is estopped from denjdng the material recitals contained in such deed, and recitals of the power to convey asserted by the grantor are material. Bigelow on Estoppel (4th Ed.) 354; French v. Edwards, supra; Den v. Morse, 12 N. J. Law, 331; Jackson v. Roberts, Ex’rs, 11 Wend. (N. Y.) 422; Eustis v. City of Henrietta, 91 Tex. 325, 43 S. W. 259.
The rule in Texas, however, as declared in Howard v. North, 5 Tex. 290, 311, 51 Am. Dec. 769 (apparently followed and not since questioned), is different, and to the effect that the misrecital of the judgment in the sheriff’s deed is not material, if it in fact appear that the sale was under a subsisting judgment and execution, the main reason given being that a recital of the judgment and execution in a sheriff’s deed is not prescribed by the statutes of the state.
' Howard v. North controls as to the law of Texas and in the present case; but the question remains as to the sufficiency and conclusiveness of the evidence offered to show a valid judgment and execution to support the sheriff’s deed. This evidence has been substantially given in the statement herein, and consists of the recitals in the sheriff’s deed which to establish fact are admissible, although not conclusive, the testimony of Col. Work, an appointed attorney by the court to represent the unknown Brown heirs, and of Mr. N. C. Cravens, also an appointed attorney, and some documentary evidence, and need not be recapitulated nor analyzed. An inspection of it shows that while it may have tended to prove a valid judgment and execution under which the sheriff’s sale of the lands of the unknown heirs of George Brown to John Work, September 4, 1878, could have been made, it does not conclusively, as a matter of law, prove such judgment and execution; and, further, that, from the interest of the witnesses, the long time elapsing, and the indefinite, confused, and conflicting nature of the evidence itself, taken a.s a whole, the facts involved were for the jury, and not for the court, to determine.
As this conclusion leads to a reversal and new trial, it is proper to consider the contention that the statute of Texas, approved November 9, 1866 (5 Gammell’s Laws of Texas, 125), warranted a judgment and execution thereunder in the case of McKinney et al. v. Unknown Heirs of George Brown, theretofore pending in the district court of Hardin county, Tex., which would support the sheriff’s sale and deed of the land in controversy.
This act should be construed to warrant in a proper case a judgment affecting the ownership and title of the land in controvers}r, with costs as in other cases (for which see Paschal’s Dig. art. 1483), and that, in; such cases, the court had power to allow the attorney appointed.to [867]*867represent the absent owners a reasonable compensation, and enter judgment therefor; the amount thereof to be taxed as the costs.
For such judgment the statute gives a lien on the lands in controversy. As a statutory lien for the foreclosure of which no special proceedings are provided by law, it would seem that, if the costs are not paid nor collected in due course, the lien may be foreclosed by suit, and, on due notice to the owners, the land affected ordered sold to pay the lien. At the same time, we are clear that the said statute does not warrant a personal judgment against absent parties for money or costs, nor such a foreclosing of the statutory lien which only comes into existence on rendition of the judgment as would permit the sale of the absent owners’ property without giving said owners some notice and opportunity to protect themselves.
A lien confers no power of sale without judicial process (Ency. Pl. & Pr. vol. 13, 123), and it is, elementary that judicial proceedings involve notice. The foreclosure of a lien is either a statutory or an equitable proceeding. See Mr. Justice Brewer’s opinion in Howe Machine Co. v. Miner, 28 Kan. 441. If a proceeding at law or in equity, the owner of the property to be affected must have ffotice either actual or constructive.
In Dunlap v. Southerlin, 63 Tex. 42, the court said:
“A judgment rendered against a person not before the eourt would be void, and it is not perceived that a judgment against a defendant in court at (lie suit of named plaintiffs, upon a cause of action accruing to them alone, in favor of a person in no manner a party to the action, can stand upon any higher ground. Courts have no more power, until tlieir action is called into exercise by some kind of pleading, to render a judgment in favor of any person than they have to render judgment against a person until he has been brought within the jurisdiction of the court in some method recognized by law as sufficient: .and it never will be presumed, in the face of a record which shows that certain named plaintiffs were seeking and entitled to a judgment, that the court, rendered a judgment in favor of some person not shown to he before it seeking relief.
See, also, Stephenson v. Bassett, 51 Tex. 544, 545, in which the court said:
“Possibly no injustice in fact may have been done the defendant, but, under the rules of pleading and practice, we cannot sanction such a departure from long-established principles of legal procedure, as to authorize a judgment upon a ease not made by the pleadings, and as to which Uie defendant has not had his day in court.”
That notice by publication of a suit claiming title to land can be taken to be also notice of a proceeding to foreclose a possible lien not then existing nor coming into existence until after judgment rendered ought not to be held. Such notice calls the absent owner to defend his property against an adverse claimant of title, and not against the possible incidental and subsequent demands of other persons. To hold that the statute in question authorized, on publication, the rendition of a judgment which shall be a lien on property of the absent owner within the jurisdiction of the court is correct; but therefrom it does not follow that such lie'n may be eo instanti and without further notice foreclosed, and the absent owner's property sold.
[868]*868Such proceeding would be tantamount to the rendition of a personal judgment without service.
An absent owner would have little protection for his landed property if, upon a notice in a local newspaper, he stands to lose his land, not only to an adverse claimant, but, failing that, to satisfy the demands of an attorney appointed to represent him. Such “due process of law” would be a farce, encouraging fraud, particularly if, as in this case, the appointed attorney should think that the absent owner was “mythical.”
We find nothing in Taliaferro v. Butler, 77 Tex. 578, 14 S. W. 191, nor in other cases cited inconsistent with these views.
The judgment of the circuit court is reversed, and the cause is remanded, with instructions to award a new trial.