George H. Judson, Adm'r and another v. M. A. Sierra, Guardian, &c. and husband, 22 Tex. 365

Bell, J. The petition was filed in the court below, by the appellee, Maria Antonia Garza y Sierra, as the guardian of two minors, Juan Garza and Adolpho Garza. The complaint of the petition was against Judson, as administrator of the estate of one George Y. Stebbins, and against John Torrey and Henry M. Lewis. The petition alleged that the minors were the owners, by inheritance, of the land in controversy ; that their father, Raphael O.

Garza, acting as the natural guardian of his children, in his lifetime, procured from the County Court of Bexar county, an order for the sale of the land, and died before the sale was made; that the appellee "was then appointed guardian of the minors, and executed to Henry M.

Lewis a power of attorney, authorizing him to act as her attorney in fact, in all matters pertaining to the guardianship of the said minors; that Lewis procured a renewal of the order of sale of the land; that said Lewis, acting as the attorney in fact of the said Maria Antonia Garza y Sierra, sold the said land, on the 5th day of August, 1851, and some time in the month of December, 1854, executed a deed for the land to Stebbins. The petition charges, that all the transactions between Raphael O.

Garza and Stebbins, and the subsequent acts of Lewis, in making sale of the land, and executing the deed, were fraudulent. The testimony discloses the fact, that Raphael O. Garza, on the 30th day of November, 1848, executed a title bond (as it was called by the parties) to George T. Stebbins, in which he recited that, in the capacity of guardian of the minor heirs of Josefa Verimendi y Garza, he was bound to make to said Stebbins a deed for one hundred and seventy seven acres of land, belonging to said heirs, for the consideration of five hundred and thirty dollars.

The pleadings show that the one hundred and seventy seven acres of land, mentioned in this bond, are the same land in controversy in this suit. The testimony shows further, that at the sale of the land by Lewis, as attorney in fact for the appellee, Stebbins bid for the land the sum of one thousand dollars. A report of the sale was made to the County Court, at the August Term, 1851, by Lewis, and the court made a decree confirming the sale. The deed from Lewis, as attorney in fact of the appellee, recites that Stebbins complied with the terms of the sale, and paid the whole of the purchase money.

The evidence shows that Stebbins did not comply with the terms of sale, but always insisted that the five hundred and thirty dollars, which he had advanced to Raphael O. Garza, in Ms lifetime, should be deducted from the one thousand dollars bid at the sale of the land, in August, 1851. The evidence shows that Mrs. Sierra, as guardian, refused to receive five hundred dollars, tendered by Stebbins through Lewis, as the balance due on the purchase money, after deducting the sum of five hundred and thirty dollars paid to Raphael O.

Garza, in his lifetime; and there is good reason to believe, from the evidence, that both Lewis and Stebbins knew, that Mrs. Sierra had declared, that she would revoke the power of attorney to Lewis, some time'before Lewis executed the deed. The testimony also discloses the fact, that Mrs. Sierra had become a married woman before, the deed was -executed by Lewis. Lewis was interrogated generally, concerning the whole business, from its inception to its conclusion. He stated, that lie had always understood, that the money advanced by Stebhins to Raphael C.

Garza, had been expended for the support and education of the minors, though upon this point he was not particularly interrogated. He stated, that he thought it was his duty, under all the circumstances, to execute the deed to Stebbins ; and that he had always been ready to’ pay over to the appellee, the five hundred dollars which had been paid to bim by Stebbins, whenever she was willing to receive it. Stebbins had been several years in possession of the land, and had made improvements. There was a verdict for the plaintiff, Mrs. Sierra, and judgment of the court below upon the verdict.

There was a motion for a new trial, which was overruled by the court. We are of opinion, that there was no error in the judgment of the court below. The defendant set up no title, except such as he derived from the guardian of the minors, through the deed of Lewis, the attorney of Mrs. Sierra. The bond from Raphael C. Garza to Stebbins, conveyed no right, because the contract was one which the laws then in force did not permit Raphael G. Garza to make. The subsequent proceedings in the County Court, vested no rights in Stebbins.

The terms of the sale, even admitting the regularity and legality of the sale itself, were not complied with by Stebbins, as required by law. (Hart. Dig. Ark 1176, 1181.) Under the circumstances of this case, Lewis had no capacity to make a valid conveyance of the land of the minors; even if Mrs. Sierra had not been a married woman, at the time of the execution of the deed to Stebbins.

But if his authority had otherwise been sufficient, to enable him to pass the title to the land, the marriage of his principal was a revocation of his authority. (2 Kent’s Com. 644, and cases cited ; Palev on Agency, p. 188, and note ; Story on Bailments, § 206.) The judgment of the' court below is affirmed. Judgment affirmed.