Douglas v. Baker

COLLARD, Judge.

This suit was brought by the appellee, J. T. Baker, in Denton County, against M. C. Douglas, appellant, a feme sole, widow of C. E. Douglas, to establish by decree a lost power of attorney alleged to have been executed by C. E. and Mary. C. Douglas, husband and wife, in 1879, to F. E. Finer and W. J. Austin, a firm of lawyers and land agents doing business under the firm name of Finer & Austin, in which power of attorney they and each of them jointly and severally were authorized to. sell and make deeds to the 200 acres of land described in the petition and other lands situated in Denton County.

It is alleged that the power was duly executed by Douglas and wife, *505 and duly acknowledged as required by statute; that it was lost in Denton (Jounty; that Austin, acting under the power, executed a deed to the 200 acres of land in controversy to II. P. Holmes on the 13tli April, 1880, who conveyed the same to plaintiff Baker, who during the pendency of the suit conveyed it by deed to S. F. Reynolds; that Holmes paid 8600 for the land to Finer & Austin, and that when Baker sold to Reynolds it was agreed that the former was to perfect the title. The prayer of the petition was for the substitution of the power, and nothing more.

Defendant specially excepted to the jurisdiction of the court, because her residence was alleged to be in Houston County and the suit was brought in 1 )enton County; but lest the exception should be overruled she answered by a general denial; denied that she had ever executed the power; admitted that she and her husband had executed a power of attorney to Otis Welsh and F. E. Finer, which was of record in Denton County, under which Finer had sold lands of her separate estate in December, 1882, but that she knows of no other and never executed any other. She pleads in reconvention; sets up her ownership of the land as her separate estate; asks rents and profits from Reynolds, who purchased the land during the pendency of the suit; that he, Reynolds, is in possession of the same, witholding it from her, and prays for citation to him and judgment against him and plaintiff for the land.

Reynolds and Baker answered her plea in reconvention, setting up that Finer, acting under the power to Welsh & Finer, it being a joint and several power to sell and convey the land, sold the same to Holmes, who paid 8600 for the same; that Finer put him in possession, and that Holmes and Baker had made permanent and valuable improvements on the laud amounting to 81525, and prayed for title, etc. Some two years after the exceptions to the petition for want of jurisdiction were filed, after announcement for trial by both parties, the court overruled the exceptions, and after trial upon the merits, upon a verdict rendered judgment for plaintiff and Reynolds for the land. Had the defendant, Mrs. Douglas, rested upon her exceptions to the jurisdiction, that she was, as shown by the petition, sued out of the county of her residence, the court should have sustained the samé. The statute authorizing suit to supply lost records in the county •of the record and where the loss occurred does not apply to lost originals. Rev. Stats., arts. 4286, 4287.

But'we think that the defendant having invoked the jurisdiction of the court upon original and independent matter set up by her, claiming the land, making Reynolds a party, and asking judgment against him for the land, waived the question of jurisdiction raised by her exceptions. The entire form of the motion was changed by her from a suit to establish a lost power of attorney to an action of trespass to try title, and in order to a recovery she made the person claiming the land a party defendant. The issue made by her was tried and adjudged against her. Having brought *506 into court a new party defendant to try title to the land with him as a purchaser from plaintiff pending the suit; becoming the actor, and claiming affirmative relief upon an issue with him that could only be tried in the county where the land was situated, she was in no attitude to disclaim the jurisdiction of the court or to insist upon her exceptions. She voluntarily submitted to the jurisdiction of the court, or rather invoked its jurisdiction as to anew party, and ought not to be allowed to repudiate it.

We do not think it necessary to examine questions arising rip on the alleged power of attorney to Finer & Austin of 1879, because the other power to Finer and Welsh of 1874 being joint and several, authorizing them or either of them to convey the land on such terms as they might deem to the interest of the owners, was sufficient authority to Finer to convey the land. The power gave to each of the attorneys named the right to act, and one of them could do so, even after the death of the other, notwithstanding they were named and styled in the power a firm of lawyers and land agents.

When Welsh died the power was revoked as to him and as to the firm acting as such, his death having dissolved the copartnership; but we see no reason why the special power to Finer to act independently of Welsh was revoked by the latter’s death. Either one of them had the right to act, and the dissolution of the firm or the death of one of its members would not affect the right of the other to act under his separate authority. Story on Agency, sec. 42, et seq.

Then, leaving out of view the alleged power of attorney to Finer & Austin, we will inquire whether or not Finer made such a sale as, coupled with the acts of Holmes, who it is claimed purchased of him, constituted a good conveyance, binding upon his principals. It was in proof, and the verdict of the jury in answer to special issues submitted to them by the court in the charge established the facts, that Finer as attorney in fact made a sale of the land, the 200 acres in controversy, to H. F. Holmes, the vendor of J. T. Baker, the plaintiff; that Holmes paid the purchase money, 8600, to Finer, which was received by Douglas and wife or one of them; that Holmes went into possession at the time of the sale, in 1880, and made permanent and valuable improvements upon the laud, of the value of 8905, the same year.

These facts specifically found by the jury vested the equitable title to the land ir Holmes. Heatherly v. Ripley, 21 Texas, 485 . Under such circumstances Mrs. Douglas could not recover the land. Hubbard v. Horne, 24 Texas, 270 ; Bracken v. Hambrick, 25 Texas, 409 .

There is no doubt of the existence of the facts as found by the jury, nor was there any ambiguity in the sale. The fact that Finer may have supposed he was acting under the power to him and Austin, and that a deed was made by Austin, would be immaterial. Link v. Page, 72 Texas, 592 . The trade was made by Finer; he caused the land, the 200 acres, *507 to be surveyed for Holmes and put him in possession; he received the purchase price of the land and paid it to Douglas, part of it in cash at the time of the sale and the balance when it fell due; the power of 1874 was recognized by Douglas and wife in 1882, before they formally revoked it on December 13 of that year. Hnder these circumstances it can not be said that Finer acted without authority. There is no presumption that the power was revoked by lapse of time, nor can it be said by Mrs. Douglas that it was revoked by the alleged power of 1879, because if that power was sufficiently proved to revoke by implication the former power, it would also be sufficiently proved to authorize the sale by Finer and the deed by Austin. Assuming that Mrs. Douglas is correct in her position that there was no power to Finer & Austin, she can not maintain the assertion that such power revoked the former power. She can not complain of the court's ruling in admitting the power of 1874.

It was correct to submit the issues arising thereon by special interrogatories, so that it could be definitely known whether the jury found the necessary facts of its due execution independently of their finding upon the later power. The issues so submitted were pertinent, clear, and unambiguous, and the answers to them virtually settled the controversy and authorized the judgment.

It is of no consequence whether the consideration of the sale was paid to Mrs. Douglas or not. Her husband was authorized to receive it, even if it were the proceeds of a sale of her separate property. There was no error in the court charging the jury, by request of defendant Reynolds, as to the legal effect of the power of attorney by Douglas and wife to Welsh & Finer.

Appellant complains that the special findings of the jury were not signed by them. The record does not show whether the special findings were signed by the jury or not. There was a general finding in favor of plaintiff consistent with the special findings, signed by the foreman of the jury, and this was endorsed on the charge of the court. The judgment of the court, after reciting that a jury was duly empaneled and sworn, proceeded as follows: “And who, after hearing the evidence in this cause, retired to consider of their verdict under the instruction of the court, and after due deliberation returned into court the following verdict in response to the following special issues to them submitted by the court.”

Then follows the questions propounded by the court and responses of the jury, upon which the judgment is based, holding that the sale by Finer under the power of 1874 was valid. In the face of the judgment declaring that the jury returned into court their verdict, stating what it was, it would not be presumed that it was not signed. If it should be held that the statute requiring a verdict to bo signed is mandatory and not merely directory, it could not be said on appeal, where there is no bill of exceptions or other matter of record showing the fact, that it was not properly signed.

*508 Adopted March 3, 1891.

One of the interrogatories propounded by the court to the jury was as follows: “Was the land in controversy the property of M. C. Douglas on the 13th day of April, 1880, prior to the deed of P. H. Holmes by W. J. Austin, as attorney in fact for Douglas and wife?” The answer of the jury was, “It was not.”

The evidence clearly shows that the land was her separate property at the time mentioned, and appellant assigns error on the finding. We think the finding wholly immaterial. If the jury had found that it was her separate estate the fact could not have affected or changed the result of other findings; the judgment must have been the same.

We conclude that the verdict of the jury that Finer executed the power of attorney of 1874, and that such acts were done on the part of Holmes as to vest in him the equitable title to the land, was amply supported by the evidence'; and finding no reversible error in the rulings of the court, it is our opinion that the judgment of the court should he affirmed.

Affirmed.