Henry Berry v. John G. Harnage et al., 39 Tex. 638

McAdoo, J. This suit is brought in the court below by the appellant, as plaintiff, against the appellees, as defendants, setting up that he is. the owner, jointly with defendants, of a portion of the D. Reed headright league of land; that he owns the west quarter of said league, and prays for a partition of the land according to his rights. He alleges that he is and has been in possession of the land claimed by him since about the year 1857, and those under whom he claims were in possession since 1855.

The defendants deny that the plaintiff has title to any of the land claimed by him, but claim the whole land as their own. This trial presents a curious form of proceeding. In addition to claims of title, both parties rely on possession, and both are in possession, of a portion of the land in .dispute.

The appellant exhibited a complete chain of title from Reed down to himself—unless one link in the chain be defective, in that the sale purports to have been made by one Pearce, as attorney in fact, when the power of attorney is challenged for sufficiency—a question which will be noticed in another part of this opinion. The appellees do not present a complete chain of title, but seem to rely, on the appellant’s admission of their title in the original petition.

The court submitted to the jury certain special issues, eleven in number, none of which were matters to be inquired of by the jury, as they embraced nothing but matters of construction of certain deeds and written instruments, the construction of which was the peculiar province of the court—all of which seemed to amount to nothing, as the court ignored the findings of the jury entirely in rendering the judgment. The only questions of fact which properly could have gone to the jury—those affecting possession and the statute of limitations—were entirely ignored, both by the court and the jury.

Owing to this fact, we think the case was not, by any means, tried on its merits; and so believing we shall reverse the judgment and remand the cause. But, as the case must be tried again, we deem it proper to pass on the power of attorney before alluded to. On the seventeenth of April, 1853, Hiram W. Moss, at his then place of residence in Van Burén, State of Arkansas, reciting that he was about to remove to California, made James M.

Pearce his attorney in fact, for him and in his name “to ask, demand, sue for, recover and receive all such sum and sums of money, debts, goods,, wares, dues, accounts and other demands whatever, which are or may be due, owing, payable and belonging tome, or detained from me by any manner of ways and means whatever, in whose hands soever the same may be-found; giving and granting unto my said attorney, by these presents, my whole and full power, strength and authority, in and about the premises, to have, use, and take all lawful ways and means, in my name and for the-purposes aforesaid, upon the receipt of any such debts, dues or issues of money, acquittances or other sufficient-, discharge, for me, and in my name, to make, seal, execute deeds of conveyance and deliver, and generally all and every act or acts, thing or things, device or devices,, in the law whatsoever needful and necessary to be done-in and about the premises, for me and in my name to do- and execute and perform,” etc.

We think this instrument falls short of a power to sell-land and execute title thereto. It is rather a power to take than to bind. (Atwood v. Manning, 7 B. & C., 278.) That its authority was ample to execute deeds, if necessary in the collection of debts existing, is clear. If the evidence showed that there was already a contract for the • sale of the land by Moss to Wordsworth & Smith, then, on the payment of the purchase money to Pearce, he had, under the instrument, power to execute the deed. In the absence of such proof, in a naked case of sale, we think his power was incomplete.

There was some showing that Wordsworth & Smith were possibly in possession before the sale to them by Pearce, but the record discloses no-previous contract of sale to them. Judgment reversed and the cause remanded. Reversed and remanded.