"One of the appellees, Mrs. Julia C. Silliman, in the capacity of executrix of the will of J. M. Silliman, deceased, brought this suit on the 26th day of October, 1897, to recover the land in controversy from Mrs. Susan C. Blackerby, Mrs. Emma F. Barton and husband, Mrs. Sallie Brown and husband, Robert Blackerby, Sam Blackerby, and Archibald E. Anderson. The petition contained the ordinary allegations proper to an action of trespass to try title, and all of the defendants answered by plea of not guilty. All of the defendants, except Archibald E. Anderson, are heirs of J. R. Blackerby, deceased, and have such title as he died possessed of. Their claim is asserted to a specific tract of 933 acres out of the larger tract sued for, which is 1,850 acres out of the Thos. Bristow headright. The controversy between the plaintiff and Anderson involves interests claimed by them in the whole of the 1,850 acres, but the facts affecting their claims to the 933 acres are somewhat different from those upon which the title to the remainder depends. Subject to the claim of persons not parties to the suit to an undivided interest in the whole tract, plaintiff recovered, by the judgment appealed from, against all the defendants, the 933-acre tract, and a lesser interest in the remainder, as will more fully appear below. Anderson and the heirs of Blackerby filed separate motions for new trial, upon the overruling of which all gave notice of appeal. Anderson alone gave an appeal bond, payable to plaintiff and to his codefendants. The Blackerby heirs did not prosecute an appeal.
"The Thos. Bristow survey, of which the land in controversy is part, contains 17 2/3 labors. Of this, J. H. Reagan, prior to any transaction in question, owned an undivided locative interest of 782 acres, and Jonathan Anderson owned the balance. Anderson on December 11, 1874, conveyed to Mary English an undivided interest of 333 acres in the Bristow survey; and this interest is owned by assignees of Mrs. English, who are not parties to the suit. Subsequently Robertson & Herndon, under Jonathan Anderson, acquired an undivided interest in the Bristow survey of 998 acres. Out of this they conveyed to Mrs. Amanda C. Snider on March 29, 1876, an undivided interest of 333 acres. On June 11, 1879, Mrs. Amanda Snider and her husband executed to J. King Williams a power of attorney authorizing him to sell her interest. On March 17, 1883, Jonathan Anderson executed to Archibald E. Anderson, the defendant, a deed purporting to convey the entire
Thos. Bristow survey, except the Robertson & Herndon and Reagan interests, of 782 and 665 acres, respectively. On the same day A. E. Anderson executed to J. King Williams his power of attorney, empowering him to take charge of the land conveyed by Jonathan Anderson to A. E. Anderson; to pay taxes upon it and attend to its redemption from tax sales; to attend to the removal of all legal incumbrances of Anderson's title; to sell, transfer, and convey all or any part of said land at his (Williams') own discretion, after quieting and removing incumbrances from the title of said land, or any part thereof, at his own discretion, and to receive and receipt for the same; to sue and be sued; to compromise and be compromised with. At same time another instrument was executed by both Anderson and Williams, in which the powers conferred upon the latter were recited, and in which the further agreements were stated as follows: `And the said J. K. Williams agrees and obligates himself, as agent and atty., to redeem said lands from the present incumbrance of tax sales as purchased by the state, and to pay all other taxes due on said land as they may become due, out of the proceeds of the sales of said lands, and at his own trouble and expense to have said land surveyed and designated from said undivided interest of Herndon & Robertson, and to subdivide said land so as to place it in market to the best advantage; and said Williams is also authorized to quiet and settle disputed titles with occupants or claimants to any part of said land, by suit, sale, or compromise, as best he can, at his own discretion; and, with due diligence on his part, he is to be unlimited in his time of quieting and making sale of said lands. And it is fully understood that this power of attorney is irrevocable. And it is further agreed and understood that said Williams is first to pay out and deduct from the first money realized out of the sale of any part of said land one-half of the different sums of money expended in the premises for taxes and otherwise; and said Williams being also authorized to sell for cash or on time, as he may think best; and he is hereby bound to pay over to said Anderson one-half of all net proceeds of money, notes, or judgments, as they may be realized in the sale of said land, or any part thereof; and said Williams is to make no charge for, and to be allowed nothing for, his services and attention in the premises. And it is fully agreed and understood that said Williams is to bring no suit nor incur any cost at the expense of or to incumber Anderson in any way whatever, without the consent and approbation of said Anderson; and in case said land, or any part thereof, should not be disposed of when said title becomes unincumbered, the same is to be equally divided between the said Anderson and Williams, or so much thereof as may remain unsold after all expenses of parties in the premises have been satisfied. And both parties bind themselves to use diligence in the consummation of this matter. And said Williams is to make a written report to said Anderson every six months of what he has done in the premises, and turn over to said Anderson the amounts due him, with a true statement of the business.'
"The court below, in effect, found that prior to the sale to Blackerby, stated below, Williams had performed the obligations assumed in this agreement, by partition with Robertson & Herndon and Reagan, discharging incumbrances, and surveying and platting the land, sufficiently to entitle him to receive such interest in the land as the contract stipulated he should receive upon performing his undertakings; and this court concludes that the evidence sustains the finding of fact and conclusion of law involved. On the 10th day of April, 1884, Williams, acting for himself and as attorney in fact for A. E. Anderson and Mrs. Snider, sold to J. R. Blackerby the 933-acre tract above referred to, executing to him an absolute deed, reciting the capacities in which Williams acted, which did not reserve any lien for the purchase money, and which is not...
