M. Watson, Administrator, v. R. M. Hopkins, 27 Tex. 637

Moore, J. The power of attorney from A. H. McKenzie to John W. P. McKenzie was properly excluded by the court from the jury. There was not even an offer to prove its execution when offered in evidence, nor was it admissible as a duly recorded instrument, because the proof upon which it was admitted to record, did not conform to the statute. Nor was the contents of the power of attorney pertinent to any issue in this case.

It did not authorize the sale by the attorney of the land of his principal, or otherwise sanction his divesting him of title to it; it could therefore have had no significance in this case, and should for this reason, also, have been withheld from the jury. We are of the opinion, however, that the ruling of the court excluding the judgment of the District Court of Bed Biver county, in the case of McKenzie v. Hamilton, was improper. It was the decree of a court of general jurisdiction, fully authorized to take cognizance of and adjudicate upon such matters as are disposed of by the judgment in question.

As the present suit is a collateral proceeding to that in which said judgment was rendered, it is not necessary for us to inquire, whether it was a correct and proper judgment to have been given in that case; unless it is made affirmatively to appear that the court had no jurisdiction over the parties or its subject matter, it must he held conclusive upon the point to which it speaks. We suppose it was excluded from the jury upon the ground that the appeal which had been previously taken to the Supreme Court, had withdrawn the subject matter from the jurisdiction of the District Court.

If it were admitted thatthe District Court improperly permitted the parties to enter the judgment after the appeal had been taken from the first judgment, we do not see that its action •can be said to be an absolute nullity. The court may have acted in an improper case, or at an improper time; but still the subject .matter of its judgment was within its jurisdiction. It is believed, however, not to be an unusual practice to amend or correct the record of proceedings had in the District Court pending an appeal upon them to this court.

There is no peculiar sanctity in the judgment of a court, or a matter pending here on appeal, beyond .what attaches to any other vested right, which prevents parties from dealing with it as may comport with their interest. Certainly the parties by

an act in peras, might have released or conveyed any interest adjudged in their favor, whether an appeal was pending or not. Why then could they not do the same thing upon consent, in the more solemn form of a judgment of the court in which the original decree was rendered? We may also add, however, that there was nothing before the court to show that the appeal which had been taken from the first judgment, had been prosecuted or was still pending, when the action of the court was subsequently invoked by the consent of the parties.

The only other objection which seems apparent to the judgment,, is, that the- plaintiff A. H. McKenzie, pur-ports to have appeared and consented to it by an attorney in fact, and not in. person; and that the authority of the attorney to appear and bind him by the judgment, is not shown by the record or otherwise. This would unquestionably be a fatal objection to the judgment, if the case was under review in an appellate tribunal; but furnishes no ground to attack a domestic judgment when brought collaterally in question.

In such cases, it has been often held, that the judgment cannot be attacked by a direct traverse of the truth of the record, alleging the appearance of the party against whom it is rendered,. and that it is equally inadmissible to do so by denying the authority of the attorney who purports to have made an appearance for him. (Holbert v. Montgomery’s ex’rs, 5 Dana, 11; St. Alban’s v. Bush, 4 Verm., 58; Field v. Gibbs, 1 Pet., C. C. R., 155; Tichout v. Cilley, 4 Verm., 415; Pillsbury v.

Dugan, 9 Ohio, 117.) The instruction of the court in respect to the payment of taxes', for the purpose of sustaining appellant’s claim of title by limitation, was, we think, more stringent than required by law. The payment of the taxes is an essential ingredient in a title of this kind. But the law prescribes no stringent rule requiring its proof by more certain or conclusive evidence than is necessary for the establishing of the other facts- in the- case. It may be shown by either direct or circumstantial testimony of a legitimate character.

There was testimony in the case tending to prove that the appellee had been in possession of the land under appellant’s title: for more than five years, and that he was bound to pay the taxes during that time. Would it be unreasonable for the jury to infer that he had complied with his stipulations, and had done what he had undertaken to do ? Does it rest with him to say that the other party has not proved that he has complied with his contract ?

It might perhaps be said that he was estopped, from asserting the contrary, but whether this is so or not, we are of the opinion the evidence before them should have been left to the jury with liberty to draw such conclusions as to the fact as all the circumstances of the case might justly warrant. The judgment is reversed and the cause remanded. Eeversed and remanded.