Geo. B. Zimpelman v. R. M. Keating et al., 72 Tex. 318

Collard, Judge. It was not contended in the court below on the-part of defendants that Kerber was authorized to make the deed to Keating as Zimpelman’s agent. The question was, had Zimpelman ratified the-act of Kerber, who assumed without authority to make the deed ? Kerber was the agent of Zimpelman to collect his rents at El Paso, to report purchases, and to make sales of lands, but he had no power to-make deeds as the agent of Zimpelman. What authority Kerber had was verbal only.

Kerber might under parol authority only negotiate sales of Zimpelman’s lands, but he could not consummate a trade deed without authority in writing. Huffman v. Cartwright, 44 Texas, 399. Kerber had on one occasion prior to the transaction in this case, made a deed to land belonging to Zimpelman which he afterwards accepted and ratified in writing. Where an agent makes a deed to land of his principal without authority to do so the ratification must generally be by deed of the principal. A mere assent, or such acquiesence as will only amount to evidence of assent, will not be a ratification.

The acquiesence by parol to bind the principal must be by such acts as will operate an estoppel in.pais. Reese v. Medlock, 37 Texas, 134-5. If the principal adopt the sale and receive the purchase money, with full knowledge of the facts, it would be a- ratification by estoppel. Was Zimpelman so estopped ? Kerber made the deed under the following circumstances: Upon the death of Judge Howard, Zimpelman’s son-in-law, Zimpelman procured Kerber to administer upon the estate of deceased, so as to have the estate applied to payment of debts and properly closed. The estate was insolvent.

Zimpelman instructed Kerber to pay all the just debts against the Howard estate out of his, Zimpelman’s, funds. Most of the debts were so paid out of Zimpelman’s money. ■ i. Keating had a suit pending against the Howard estate for $l337’.35’, brought before Howard’s death, and there was a suit pending against Keating brought by Howard for the land in controversy in this case. In order to settle the suits it was agreed by Keating and Kerber that both suits should be dismissed and that Kerber should make the deed, and it was done. After the dismissal Keating’s suit was barred by limitation.

Kerber informed Keating and his attorney that he had no authority from Zimpelman to execute the deed. The parties knowing this took the risk that Zimpelman would ratify the conveyance, as Kerber said he believed he would. Keating’s debt may have been a valid claim against the Howard estate. Some time afterwards when Zimpelman was notified of the conveyance by Kerber he made no objection. When Kerber saw him again, nearly two years afterwards, Zimpelman said: “ You’ve played thunder making a deed to my land. What’s done is done.” Keating knew Kerber was authorized to pay Howard’s debts by Zimpelman.

This circumstance will not amount to an affirmance of the acts of Kerber on the part of Zimpelman. He was in nowise benefited by the transaction. He was under no legal obligation to pay the debts of Howard’s estate. His instructions to his agent to pay them were voluntary and gave no right to creditors to compel him to do it; besides the power to use funds to pay debts did not authorize Kerber to deed land for that purpose. Keating knew his deed was worthless unless it was ratified by Zimpelman, and he knew he could not enforce a ratification.

He was not deceived, and had nothing to rely upon but the generosity of Zimpelman and his anxiety to have Howard’s debts paid. ¡Nothing short ■ of a ratification in writing would have been binding upon him. The, court should have instructed the jury, there being no such ratification, to find for the plaintiff, and such being the case the judgment of the court below should be reversed and rendered for plaintiff. Reversed and rendered. Adopted December 18, 1888.