HORST et al. v. LIGHTFOOT et al., 132 S.W. 761

WILLIAM'S, J. The plaintiff in error Horst was the defendant and the defendants in error were the plaintiffs below, and the other plaintiffs in error were impleaded by Horst as his warrantors. The defendant's in error will be referred to as plaintiffs and the plaintiffs in error as defendants. The action was one of trespass to try title to recover 1,280 acres of land in Grimes county, patented to Valentine 'Schneider October 1, 1841, and conveyed by him to Abraham McMillan by deed executed September 7, 1842, but not recorded until July 11,1853.

The plaintiffs claim as heirs of George Resley, to whom McMillan conveyed November 7, 1854. The defendant Horst claims 812 acres of the tract, disclaiming as to the rest (1) under the pat-entee, Schneider, by execution sale of the land as his made 'during the interval between the date and the registration of the deed from him to McMillan; and (2) under a conveyance made by an attorney in fact for Resley after the conveyance to ■ him by McMillan.

The execution sale was made July 5, 1853, in pursuance of a levy made May 30, 1853, the writ having issued May 5, 1853, on a judgment against Valentine Schneider, the same person as the patentee, rendered September 6, 1850, in favor of Conrad Meuly, who purchased at such sale. The judgment recited that the defendant failed to appear, and was silent as-to service on the defendant.

The petition on which it was based claimed only an indebtedness from the defendant to the plaintiff, alleging that the defendant was “absent from the state so that the ordinary process of law cannot be served on him,” and praying for service by publication. The affidavit for service by publication was that “the facts set forth in the foregoing petition are correct and true, and, further, that said Schneider is not a resident of the state.” The citation issued and published recited that Schneider was a nonresident. A further statement of its contents is unnecessary.

The facts as to the other claim of title of the defendants are as follows: They produced from the records of Montgomery county a copy of a power of attorney from George Resley, of the county of Milam, to Lemuel G.

Clepper, of the county of Montgomery, of date August 4, 1855, empowering him “to sell and dispose of absolutely in fee or otherwise the above-described land (that in controversy) at not less than one dollar per acre in such quantities and to such persons as nay said attorney shall think proper, and also for me and in my name and as my act and deed to sign, seal, execute and deliver such deeds for the absolute sale of the same or otherwise as my said attorney shall deem proper; hereby ratifying and confirming all such conveyances, deeds, bargains and sales which shall at any time hereafter be made by my said attorney touching the premises.” They also produced the records of Grimes county, showing a deed from George Resley of the county of Milam, by his attorney in fact Lem G.

Olepper of the county of Montgomery, to James Mitchell, reciting the consideration to be $615 paid and $615 secured to be paid. The statement of facts does not give the description of the land conveyed, but recites that it is that described in the plaintiffs’ petition, which is the entire 1,280 acres. It is stated in the findings of the trial judge that the deed conveys that tract less 50 acres and this was admitted to be correct in the argument in this court; so that we may assume that the attempt was to sell and convey 1,230 acres at $1 per acre, half cash and half on credit.

The plaintiffs, in rebuttal, produced the recor.d in Grimes county of a power of attorney from George Resley to Samuel G. Olepper, which otherwise, with the exception that it' fixes the minimum price of sale at $3 per acre, is in the exact language, of same date, witnessed by the same persons and acknowledged before the same officer on the same day (August 4, 1855) as that first stated.

The first appears to have been filed for record in Montgomery county August 20, 1855, and the latter to have been filed in Grimes county at 10 o’clock a. m. of October 20, 1855, which was also the day and hour of filing the deed executed by the attorney in fact to Mitchell. The evidence shows no effort of either party to explain whether there were, first, really two Cieppers with a power to each; or, second, only one with two powers with conflicting provisions as to the minimum price, or, third, only one attorney and one instrument, changed in recording, or otherwise.

The trial court found that there was a power to Lemuel G. Clepper and another to Samuel G. Clepper, and that. the deed to Mitchell was executed by the former under the first-named power, and that the title passed by such deed.

It further appears that on March 23, 1860, Conrad Meuly recovered ‘ judgment against James Mitchell for the land in controversy, with writ of restitution and possession, the verdict of the jury, recited in the judgment, allowing' Mitchell $500 as the valué of improvements and Meuly the same amount for use and occupation of the land, and that on appeal this judgment was affirmed by the Supreme Court, in March, 1870.

The first contention of counsel for the defendants is that Meuly, by the levy of his execution on the land secured a lien as creditor superior to the unrecorded deed to McMillan, and that, therefore, the title acquired by his purchase at the execution sale was also superior, whether the facts existed to make him also an innocent purchaser or not. We think, and the opposing counsel concede, that this would be true if the judgment under which the levy was made were valid.

But we must sustain the contention that the judgment was void because the record in that cause shows that the court never acquired jurisdiction over the person of Schneider. The judgment itself being silent as to jurisdictional facts, other parts of the record supplying them may be consulted, and they show that Schneider was a nonresident of the state, and therefore not to be brought within the jurisdiction of the court by any process it could issue. Treadway v. East-burn, 57 Tex. 209.

The allegation of the petition that the defendant was absent from the state by itself would not be inconsistent with the existence of power in the court to reach him with its writ, since one may be absent from the state and yet be a citizen of and resident in it, and therefore amenable to the process of its courts. But his absence may be because of nonresidence, and this is what the petition and the affidavit for publication, construed together, show to have been true of Schneider, and it follows that jurisdiction over his person could not be obtained by constructive service. Northcraft v.

Oliver, 74 Tex. 169, 11 S. W. 1121. . It is true that the court in the appeal of Mitchell v. Meuly, 32 Tex. 460, expressly decided in accordance with previous holdings in this state that the judgment against Schneider was valid, but the law has been settled to be otherwise by many subsequent decisions of the Supreme Court of the United States and of this court. By that decision the question became res judicata between Meuly and his privies, on the.one hand, and Mitchell and his privies on the other.

But neither Schneider nor Resley nor any one with whom they or their heirs were in privity was a party to that suit. If the title did not pass out of Resley by the conveyance executed by Clepper to Mitchell, it could not be affected by the judgment against the latter. And this brings us to the question as to the effect of that conveyance. The Court of Civil Appeals, conceding for the sake of argument that the trial court was right in its holding that there were two powers of attorney, one to Lemuel G. Clepper and the other to Samuel G.

Clepper, and that the conveyance was made by the former under the power to him, held that the title did not pass for two reasons, viz.:

(1) The price was less than $1 per acre; and (2) the sale was partly on credit. Whether or not the first holding should be regarded *as erroneous in point of fact upon the record presented to that court we need not determine. Tlie other reason was good. What other disposition of the land than an absolute sale might come within the language of the power is a question not raised by the facts. That which the agent attempted was an absolute sale, and it is settled in this state at least that the grant of an authority to sell implies that the sale is to be for cash unless more extensive power is in some way expressed.

This instrument may give power to do other things than sell, but, in giving power to sell, it in no way expresses an intention that credit may be given for part of the price. It is contended by counsel for the plaintiffs that the sale was void for the further reason that it must have been made under the power of attorney filed for record in Grimes county at the same hour of the same day with the deed executed by the attorney in fact, but we cannot so hold. The statement made as to this shows a condition of things explicable only by further evidence than now appears.

Upon that in the record the least that can be said is that the trial judge was justified in finding that the conveyance was made by Lemuel G. Olepper under the power to him, its genuineness not being questioned, and not under another differing from it, not only in the name of the donee of the power, but in another material particular. All the objections to the conveyance by Olepper are met by counsel for defendants with the contention that it was ratified. The Court of Civil Appeals holds there was no evidence to justify an inference of ratification, and in this we think there was error.

All that was necessary to a ratification was that the proceeds of the sale should have been paid to Resley by Clep-per according to his duty and retained by the former. If he received only the money paid in cash and kept it, he must have known that the sale was made partly on credit and have elected to abide by it; and the same conclusion would result, for a stronger reason, from the receipt and retention of both the cash and the credit payments or of any obligation taken for the latter.

It is true that there is no direct evidence that any of these things took place; but, if the circumstances are such as to justify a reasonable conclusion that they probably did, the trial court would be authorized to find that the sale was ratified. It was made in less than two months after the execution of the power, and the deed was recorded less than a month later.

Five years after we find Mitchell in possession of the land asserting title under the deed against Meuly, who, so far as appears, was the only one that ever disputed that title until this suit was brought'nearly half a century after the deed was executed. We say that Mitchell was in possession of the land because the fact appears from the finding of the jury and the judgment in the action of Meuly against him. While that judgment is not binding on Resley and his heirs, it is a fact from which appear the claim asserted and actions taken by Mitchell in the most open manner.

Nor do we hold that the record of the deed was constructive notice to Resley. It is simply a fact further showing the open nature of the claim under it. There is testimony to the making of sales and conveyances of the land by the heirs of Meuly, to the cutting of timber by a purchaser, to the employment by the Meulys of agents in the county to look after it and of some payment of taxes by Horst since he bought. The evidence does not show whether or not there has been other payment of taxes.

Witnesses who have long known the land testified that it was known as the Meuly land and of their never having heard of a claim of Resley or his heirs until this suit was brought. From these circumstances we think the inference, or presumption, of ratification would be by no means unreasonable.

It was the province of the Court of Civil Appeals to determine the question of fact whether or not this evidence proved ratification, and their conclusion that it did not and their consequent reversal of the judgment cannot be reviewed by us; but the holding that there was no evidence was the only one which would sustain the rendition of final judgment by that court and it was one of law which it is our duty to revise. When we find that there is evidence to be passed, on by the trial court, it follows that the cause should be remanded for a new trial. Eastham v. Hunter, 98 Tex. 563, 86 S. W. 323.

Reversed and remanded.