Stayton, Associate Justice.
The plaintiff sought to deraign title to the lot in controversy through a deed from the administrators of the estate of M. T. Johnson, executed April 1, 1870.
[125]*125This deed recited the different steps taken in the probate court and by the administrators to make a valid sale of property belonging to the estate of a deceased person, but there was no proof whatever of the application for an order to sell, of the order to sell, of the report of sale, or of a decree confirming the sale.
The deed was objected to, when offered, because no proof had been made that the administrators had authority to make the sale and deed, and this objection was overruled.
It is contended by the appellee that the deed itself, containing, as it did, recitals of the facts necessary to a valid sale, was prima facie evidence that all the requisites to a valid sale existed.
This view of the question is based upon the language of the statute then in force, which is substantially the same as now found in the Ee vised Statutes. Pasch. Dig., 1237; R. S., 2091, 2092.
The statute declared that, “after any such decree of confirmation shall have been made, upon the purchaser complying with the terms of sale, the executor or administrator shall execute and deliver to him a conveyance of the property so sold, if it were either land or slaves, reciting therein the decree confirming the sale and ordering the conveyance to be made, which conveyance of land or slaves so made shall vest the right and title that the testator or intestate had, in the purchaser, and shall be prima fade evidence that all the requisites of the law have been complied with in making the sale.”
It will be observed that the declaration is, that a deed when made under given circumstances, and reciting certain facts, shall pass to the purchaser the right and title which the testator or intestate had; but it is not declared that such a deed shall be prima facie evidence that everything had been done which the law makes requisite to the validity of such sales, including those things which alone can confer upon an administrator the authority to sell.
The effect of such deeds, as prima facie evidence, is by the terms of the statute restricted to the act of making the sale; time, place, manner and notice being included in this.
The effect of a similar statute has been considered in several cases.
The act of March 20, 1848 (Hart. Dig., 3145), provided that a tax collector’s deed, “ when recorded according to law, shall be prima facie evidence that all the requisites of the law have been complied with in making such sale.” This language is identical almost with that used in the statute under consideration; and in considering its effect, in Robson v. Osborn, 13 Tex., 307, it was said: “In the case of Yenda v. Wheeler, 9 Tex., 408, the distinction was recognized between the power to sell and the regularity of the sale. And we [126]*126have no hesitation in holding with the authorities there cited, that though the statute makes the assessor’s deed prima fade evidence that the requirements of the law have been complied with in making the sale, it is not thereby made evidence of a compliance with the prerequisites to the acquisition and exercise of the power to sell; and that the statute applies only to the proceedings to be had after the right and power to sell are acquired.”
Such has been the uniform construction. Devine v. McCulloch, 15 Tex., 491; Kelly v. Medlin, 26 Tex., 56; Taylor v. Boyd, 5 Tex. Law Review, 202.
In the absence of proof of the facts which conferred on the administrators the power to sell, the deed was not evidence of title, and should have been excluded.
The deed from Schwing and wife to Belding was not void for uncertainty in the description of the lot, and was properly admitted.
The defendant claimed title by limitation, and offered a deed made to A. M. Carter by Joe M. Henderson, sheriff of Tarrant county, acting through his deputy, Mr. Steele, which was objected to on the ground that it did not contain a sufficient description of the property, and upon the further ground that it had not been,properly acknowledged for record, the defendant relying upon it as a basis for his plea of limitation of five years under a duly recorded deed. The land sued for is thus described in the petition: “ Situated in the city of Fort Worth, in Tarrant county, Texas, and known and designated on the map of said city as lot No. three (3), in block No. twenty-nine (29), bounded as follows: Beginning at a point in west line of Elm street, one hundred feet northward from the southeast corner of said block No. 29, thence northward with Elm street fifty feet, thence westward parallel with Second street one hundred feet, thence southward parallel with Elm street fifty feet, thence eastward parallel with Second street one hundred feet to place of beginning.”
The description in the deed to Carter was as follows: “Lot 3, in block No. 29, being fifty feet by one hundred feet, bounded as follows: Beginning one hundred feet north of the southeast corner of said block, thence west one hundred feet, thence north fifty feet, thence east one hundred feet, thence south fifty feet to the place of beginning, being lot 3, in block No. 29, in the city of Fort Worth, Tarrant county, Texas.”
We are of the opinion that the description of the lot contained in the deed to Carter sufficiently identifies the property intended to be conveyed by it.
[127]*127The certificate of acknowledgment to said deed is as follows:
“State of Texas, 5 County of Tarrant, y
“ Before the undersigned authority personally appeared J. M. Henderson, sheriff of Tarrant county, by W. T. Steele, deputy, to me well known, and acknowledged that he executed the foregoing deed for the purposes and consideration and in the capacity therein set forth and expressed.
“ Witness my hand and seal of office, this 10th day of August, 1878.
[seal.] “ J. J. Miller,
“ District Clerk of Tarrant County.”
The deed was executed by Steele, acting as deputy, in the name of the sheriff; and we are of the opinion that he was the proper person to acknowledge it, and that the certificate upon which it was admitted to record shows a substantial compliance with the law. Huey v. Van Wie, 23 Wis., 618; Bigelow v. Livingston, 28 Minn., 60.
We are therefore of the opinion that the court erred in excluding the deed.
That deed was duly recorded August 21, 1878.
On the 19th of August, 1878, Carter conveyed to the defendant an undivided half interest in the lot, by a deed which was filed for record the same day; and on the 4th of August, 1879, conveyed to the defendant the other half of the lot by a deed recorded on the 5th of August, 1879, and this action was brought March 12, 1884.
The last deed mentioned was excluded, upon an objection made by the plaintiff.
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Stayton, Associate Justice.
The plaintiff sought to deraign title to the lot in controversy through a deed from the administrators of the estate of M. T. Johnson, executed April 1, 1870.
[125]*125This deed recited the different steps taken in the probate court and by the administrators to make a valid sale of property belonging to the estate of a deceased person, but there was no proof whatever of the application for an order to sell, of the order to sell, of the report of sale, or of a decree confirming the sale.
The deed was objected to, when offered, because no proof had been made that the administrators had authority to make the sale and deed, and this objection was overruled.
It is contended by the appellee that the deed itself, containing, as it did, recitals of the facts necessary to a valid sale, was prima facie evidence that all the requisites to a valid sale existed.
This view of the question is based upon the language of the statute then in force, which is substantially the same as now found in the Ee vised Statutes. Pasch. Dig., 1237; R. S., 2091, 2092.
The statute declared that, “after any such decree of confirmation shall have been made, upon the purchaser complying with the terms of sale, the executor or administrator shall execute and deliver to him a conveyance of the property so sold, if it were either land or slaves, reciting therein the decree confirming the sale and ordering the conveyance to be made, which conveyance of land or slaves so made shall vest the right and title that the testator or intestate had, in the purchaser, and shall be prima fade evidence that all the requisites of the law have been complied with in making the sale.”
It will be observed that the declaration is, that a deed when made under given circumstances, and reciting certain facts, shall pass to the purchaser the right and title which the testator or intestate had; but it is not declared that such a deed shall be prima facie evidence that everything had been done which the law makes requisite to the validity of such sales, including those things which alone can confer upon an administrator the authority to sell.
The effect of such deeds, as prima facie evidence, is by the terms of the statute restricted to the act of making the sale; time, place, manner and notice being included in this.
The effect of a similar statute has been considered in several cases.
The act of March 20, 1848 (Hart. Dig., 3145), provided that a tax collector’s deed, “ when recorded according to law, shall be prima facie evidence that all the requisites of the law have been complied with in making such sale.” This language is identical almost with that used in the statute under consideration; and in considering its effect, in Robson v. Osborn, 13 Tex., 307, it was said: “In the case of Yenda v. Wheeler, 9 Tex., 408, the distinction was recognized between the power to sell and the regularity of the sale. And we [126]*126have no hesitation in holding with the authorities there cited, that though the statute makes the assessor’s deed prima fade evidence that the requirements of the law have been complied with in making the sale, it is not thereby made evidence of a compliance with the prerequisites to the acquisition and exercise of the power to sell; and that the statute applies only to the proceedings to be had after the right and power to sell are acquired.”
Such has been the uniform construction. Devine v. McCulloch, 15 Tex., 491; Kelly v. Medlin, 26 Tex., 56; Taylor v. Boyd, 5 Tex. Law Review, 202.
In the absence of proof of the facts which conferred on the administrators the power to sell, the deed was not evidence of title, and should have been excluded.
The deed from Schwing and wife to Belding was not void for uncertainty in the description of the lot, and was properly admitted.
The defendant claimed title by limitation, and offered a deed made to A. M. Carter by Joe M. Henderson, sheriff of Tarrant county, acting through his deputy, Mr. Steele, which was objected to on the ground that it did not contain a sufficient description of the property, and upon the further ground that it had not been,properly acknowledged for record, the defendant relying upon it as a basis for his plea of limitation of five years under a duly recorded deed. The land sued for is thus described in the petition: “ Situated in the city of Fort Worth, in Tarrant county, Texas, and known and designated on the map of said city as lot No. three (3), in block No. twenty-nine (29), bounded as follows: Beginning at a point in west line of Elm street, one hundred feet northward from the southeast corner of said block No. 29, thence northward with Elm street fifty feet, thence westward parallel with Second street one hundred feet, thence southward parallel with Elm street fifty feet, thence eastward parallel with Second street one hundred feet to place of beginning.”
The description in the deed to Carter was as follows: “Lot 3, in block No. 29, being fifty feet by one hundred feet, bounded as follows: Beginning one hundred feet north of the southeast corner of said block, thence west one hundred feet, thence north fifty feet, thence east one hundred feet, thence south fifty feet to the place of beginning, being lot 3, in block No. 29, in the city of Fort Worth, Tarrant county, Texas.”
We are of the opinion that the description of the lot contained in the deed to Carter sufficiently identifies the property intended to be conveyed by it.
[127]*127The certificate of acknowledgment to said deed is as follows:
“State of Texas, 5 County of Tarrant, y
“ Before the undersigned authority personally appeared J. M. Henderson, sheriff of Tarrant county, by W. T. Steele, deputy, to me well known, and acknowledged that he executed the foregoing deed for the purposes and consideration and in the capacity therein set forth and expressed.
“ Witness my hand and seal of office, this 10th day of August, 1878.
[seal.] “ J. J. Miller,
“ District Clerk of Tarrant County.”
The deed was executed by Steele, acting as deputy, in the name of the sheriff; and we are of the opinion that he was the proper person to acknowledge it, and that the certificate upon which it was admitted to record shows a substantial compliance with the law. Huey v. Van Wie, 23 Wis., 618; Bigelow v. Livingston, 28 Minn., 60.
We are therefore of the opinion that the court erred in excluding the deed.
That deed was duly recorded August 21, 1878.
On the 19th of August, 1878, Carter conveyed to the defendant an undivided half interest in the lot, by a deed which was filed for record the same day; and on the 4th of August, 1879, conveyed to the defendant the other half of the lot by a deed recorded on the 5th of August, 1879, and this action was brought March 12, 1884.
The last deed mentioned was excluded, upon an objection made by the plaintiff.
The ground of that objection was, that as five years had not elapsed between the time of the execution and registration of that deed and the filing of the petition in this case, and as the deed through which Carter claimed had been excluded and could not be considered, therefore the deed in question was irrelevant, it not appearing that Carter held valid title. This was error.
It appears that the defendant took possession of the lot through tenant in the latter part of August, 1878, and that continuously from that time until the trial he had held such possession adversely to all persons except A. M. Carter, whose right as a tenant in common he recognized, until he purchased his interest on August 4, 1879. It further appears that the defendant paid taxes on the entire lot for the years 1880, 1881, 1882 and 1883, and that he paid one-half of the taxes on the lot for the year 1879, and that he proposed to [128]*128prove that Carter paid the taxes on the other half of the lot for that year, which was rejected.
We are of opinion that the court erred in rejecting the deed made by Carter to the defendant August 4, 1879; and that it erred in refusing to permit the defendant to prove that Carter paid taxes on half the lot for the year 1879.
The possession which the appellant held from the time he purchased an undivided half of the lot until he purchased the other half, under the proof, was as much the possession of Carter as of himself, as against any person asserting an adverse title.
They were both claiming under the deed to Carter, and the possession of appellant of the whole lot was with a clear recognition of the right of Carter. In such case the possession of one co-tenant inures to the benefit of the other. Young v. Adams, 14 B. Mon., 127; Vaughn v. Bacon, 15 Maine, 457; Knox v. Silloway, 10 Maine, 211; Baker v. Whiting, 3 Sumn., 485; Colman v. Clements, 23 Cal., 247; Waring v. Crow, 11 Cal., 371.
Under the facts proved, the appellant is entitled to avail himself, under his plea of limitation, of the possession from the time he first entered, as fully as though he and Carter had both been actually in possession of the lot until Carter made the last conveyance to him; as is he entitled to the benefit of the payment of taxes on an undivided half of the lot by Carter, while the latter was the claimant of that interest under the deed through which they both claim. As between themselves, Carter and the appellant were for a time tenants in common, and, during that time, the effect of the actual possession of the one, not adverse to the other, in its effect upon third persons holding adverse or even superior title, must be the same as though title to the lot passed to Carter by the conveyance made to him by the sheriff.
On account of the rulings of the court which have been noticed, the judgment of the court below will be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.
[Opinion delivered May 5, 1885.]