Beverly Hunter et al. v. Mrs. Delha Eastham et al., 95 Tex. 648

WILLIAMS, Associate Justice. The plaintiffs in error brought this suit to recover of defendants in error a tract of 250 acres of land. Plaintiff’s title was derived by inheritance from their father and mother, Beverly and Caroline Hunter, deceased. Defendants claimed under conveyances purporting to proceed from the same persons, as follows: On the 26th day of November, 1879, Beverly and Caroline, being about to remove from Texas to Kansas, executed to their son, Robert Hunter, a power authorizing him to “sell” the land in controversy, the instrument expressing no other power.

Soon afterwards the makers of the power moved to Kansas, where Caroline died in 1892 or 1893, and Beverly in 1899 or 1900, neither having ever returned to Texas. On the 5th day of January, 1880, Robert Hunter, by virtue of the power of attorney, executed a deed to the land to W. R. Pace, reciting payment' of $112.50 as the consideration. Pace, on December 1, 1880, conveyed the land to B. Eastham by the following instrument: “State of Texas, County of Walker.—Know all men by these presents that I, W. R. Pace, in consideration of one hundred and forty-five and 25-100 to me in hand paid by B.

Eastham, the receipt is hereby acknowledged, have bargained, sold, and by these presents do grant, bargain, sell, convey and release unto the said B. Eastham, all my right, title and interest in and to the following described tract of land, situated in Walker County, in the David Thompson H. R. or L.; for a full description see Walker County records, Book O, pages 73, 74, 75 and 76, from Gibbs to Silas Morgan, and from Morgan to Beverly Hunter.

Then in Book I of the records of power of attorney, pages 9 and 10 for Robert Hunter power attorney, and then from deed from Robert Hunter to me, see in Walker Co. records, Book V, pages 418 and 419. See also Sheriff Harrison’s deed for 170 acres of the above tract to me, for taxes for 1879, •dated May 24th, 1880, said to contain 250 acres. All the conveyances, ihat is, power of attorney from Beverly Hunter and Caroline Hunter to Robert Hunter, & deed from Robert Hunter to • J. S. Harrison, sheriff tax •deed, are made part of this conveyance.

Together with all and singular the rights, members, hereditaments and appurtances to the same belonging or in anywise incident or appertaining. To have and to hold, all .and singular, the premises above mentioned, unto the said B. Eastham, his heirs and assigns forever. And I do hereby bind myself, my heirs ■and assigns, to warrant and forever defend all and singular the said premises unto the said B. Eastham, his heirs and assigns, against every person whomsoever lawfully claiming of to claim the same or any part thereof, by or through me. “Huntsville, Texas, Dec. 1st, 1880. “W. R.

Pace.” Defendants in error have Eastham’s title. The Court of Civil Appeals found that the consideration recited in the deed from Robert Hunter io Pace was not paid, but .that the true consideration was the cancellation of a debt due by the former to the latter, and that nothing was ever paid to Beverly and Caroline Hunter. Both courts below found that the consideration recited in the deed from Pace to Eastham was paid by the latter.

Of this fact there was no ■evidence, except the recital in the deed and such as was afforded by the •circumstances of the case, which were that all of these instruments were in due time placed of record; that Eastham and his representative, since bis purchase, have paid taxes upon, claimed and used the land, and that plaintiffs and their ancestors have not in any way asserted a claim until “the bringing of this action, September 7, 1901.

The Court of Civil Appeals also found that there was no evidence that Eastham had notice of the character of the transaction, but treated the •case as one in which there, was no evidence either way upon the point. The court held that the legal title passed by the conveyances stated, and that the burden was on plaintiffs to prove notice to Eastham of the infirmity. We are of the opinion that this conclusion is based upon a misconception of the character of the titles of the parties.

We agree with the Court of Civil Appeals that the power to sell included a power in the agent, in selling, to execute the conveyance necessary to complete abale,— there being nothing in the instrument or in the nature of the transaction to exclude this construction; and that the deed from the attorney in fact to Pace, on its face, appears to be a sufficient execution of such power. But the power was a naked one, unaccompanied by any interest of the agent in the land.

The agent, having no title of his own, could only pass that of his principal by an exercise of the power granted:'that is, by selling the land and executing a conveyance in effecting a sale. Ho power was given to convey without consideration, or upon a consideration inuring to the agent, and the attempt of the agent to do this was, by itself, inoperative upon the title and passed nothing. Meade v. Brothers,. 28 Wis., 689; Campbell v. Campbell, 15 N. W. Rep., 138; Dupont v. Wertheman, 10 Cal., 368; Randall v. Duff, 19 Pac. Rep., 533; Jeffrey v. Hursh, 12 N. W. Rep., 898; Duputron v. Young, 134 U. S., 241; Mott v.

Smith, 16 Cal., 534. These authorities all hold that'such a transaction does not pass the-legal title out of the principal, .but leaves it in him unaffected by the mere deed of the agent. It necessarily follows that one holding under-such a transaction can not rest upon the deed from the agent alone, since it has not divested the title out of the principal, but must bring to its support other facts establishing grounds, for his protection in equity. This he can do by showing facts which constitute him an innocent purchaser.

While such a purchaser has not acquired the legal title,, he has acted upon evidence of a regular title which the owner of the property, through the power intrusted to his agent, has enabled the agent to-create, and may have paid out his money in reliance upon it, with no-notice of its infirmity. It would be a fraud upon him to allow a recovery by the party whose trust in his own agent has enabled him to,practice the-deception. But such a case is not made by the mere production of the-title papers, nor by proof that the purchaser has paid for the property; but to its completeness good faith on his

part is essential, and must be shown by him in order to establish an equitable right superior to the-legal title. Until such a case has been made, the legal title must prevail. Therefore, treating the ease upon the facts, as the Court of Civil Appeals treated it, as one on which there was no evidence upon the question of notice, we are of the opinion that defendants failed to sustain, the defense of innocent purchaser.

Whether or not there is in the-record any legal evidence to support the finding that Eastham paid the consideration, is a question which we need not decide, as the judgment-must be reversed for the error of law committed by the Court of Civil Appeals in holding that he could be protected as an innocent purchaser without proof that he bought without notice. We are also of the opinion that the deed from Pace to Eastham on its face shows, prima facie at least, that the latter bought only such title-as his grantor had. Harrison v. Boring, 44 Texas, 262, 263.

Ho proof was offered of the circumstances attending it and as to the adequacy of consideration to give a different character to the transaction. The opinion in the ease referred to will sufficiently direct another trial of this-question, and it is unnecessary for us to further discuss a subject which would not probably be made clearer by anything we could say than it has-already been made by the decisions. Most of the propositions of the defendants in error proceed upon the misconception which we have endeavored to point out, as to the character of plaintiffs’ title, and need not be further noticed.

The contention that the evidence warranted the court below in finding that Pace in fact paid Robert Hunter for the land the money consideration recited in the deed, presents a question of fact upon which the Court of Civil Appeals found against the defendants. There was evidence tending to support the last finding, and it is therefore binding on this court, but not upon the District Court upon another trial. Railway v. Echols, 87 Texas, 345, 346. Other contentions present questions of fact not passed on in the courts below, and which this court can not resolve.

For the reasons indicated, the judgments will be reversed and the ■cause remanded. Reversed and remanded.