Benjamin Gooch v. Christian Scheidler and Others, 20 Tex. 443

Wheeler, J. As respects the validity of the deed of the 23d of December, 1834, the present cannot be distinguished from the case of Lee v. Wharton. (11 Tex. R. 61, 75.) The deed is not, like a Sheriff’s deed at Common Law, the mere act of the ministerial officer of the Court, It was executed before the Judge upon whose judgment the execution issued. It was executed with the sanction and authority of the Judge.

It was as much a judicial act as the judgment it recites; and being such, there was not the same necessity that the judgment should be produced as in the case of a Sheriff’s deed, which is the act of a merely ministerial officer, and consequently is of no validity unless the judgment and execution from which the officer derived his power is produced.

It appears that the deed in question was filed in the office of the Judge of the First Instance in De Witt’s colony, and, upon the change of Government, transferred to the office of the County Clerk of the proper county, where it has remained of record, unimpeached, for nearly a quarter of a century.

The purchaser was more immediately interested in its preservation, and it has been preserved; while it is not improbable that the docket of the Primary Judge may have been lost or destroyed, or placed beyond the reach of parties interested in his judgment, by some of the casualties consequent upon the revolution and change of Government and officers to whom the law confided its custody.

To require the production of the judgment at this day, when the act of sale under it has remained thus long of record, unimpeached, and title has been claimed under it, would be to defeat the rights of purchasers, justly acquired, without any legal necessity, and in favor of those who, if they ever had rights, have been so slow in asserting them, as not to entitle them to be regarded with any degree of favor.

The deed being a judicial act, and having remained of record as evidence of title claimed under it, since before the change of Government, we are of opinion the Court did not err in admitting it in evidence without the production of the judgment, and holding it valid and effectual to divest the title of the plaintiff’s vendor. And the judgment is affirmed. Judgment affirmed.