Bowles v. Bryan

• Decision Date: 24 January 1923
• Docket Number: (No. 375-3428.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 247 S.W. 276
• Parties: BOWLES et al. v. BRYAN.
• Court: Texas Supreme Court

247 S.W. 276

BOWLES et al. v. BRYAN.

(No. 375-3428.)^*

Commission of Appeals of Texas, Section A.

January 24, 1923.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Deck Martin and Charlie Rodgers against J. L. Ross. A judgment for Deck Martin was affirmed by the Court of Civil Appeals (128 S. W. 718), but reversed and remanded by the Supreme Court (104 Tex. 558, 140 S. W. 432, 141 S. W. 518), and, upon the death of defendant, Frank R. Bowles, executor, and others were substituted; E. P. Bryan intervening. Judgment for defendants was rendered after setting aside a verdict, but reversed by the Court of Civil Appeals (214 S. W. 524), and on application the Supreme Court (235 S. W. 522) granted a writ of error because of conflicting decisions. Judgment of Court of Civil Appeals affirmed.

Harry P. Lawther, of Dallas, for plaintiffs in error.

E. P. Bryan, of Dallas, for defendant in error.

RANDOLPH, J.

This suit was originally instituted by Hart and Bryan, as attorneys for Deck Martin and Charlie Rodgers, against J. L. Ross. The case was tried in the district court of Dallas county, where judgment was rendered for Deck Martin, and eliminating Charlie Rodgers for reasons not necessary to discuss here. On appeal to the Court of Civil Appeals the case was affirmed. Ross v. Martin, 128 S. W. 718. On hearing in the Supreme Court, that court reversed the case, and remanded it for trial as to Deck Martin only. 104 Tex. 558, 140 S. W. 432, 141 S. W. 518. The defendant, Ross, having died, his executor and heirs were made parties defendant. The defendants having purchased his interest in the subject-matter of the litigation from Deck Martin, Bryan, claiming the interest of Hart, intervened in the suit, claiming two-thirds undivided interest in the land in suit under and by virtue of the power of attorney executed by Deck Martin to Hart and Bryan. The trial court, after hearing the evidence, submitted the case to the jury, and the jury rendered answers to special issues submitted to them. Both intervener and defendants presented their motions for judgment; the defendants' motion being a motion for judgment notwithstanding the verdict. The trial court set aside the verdict of the jury, and rendered judgment for the defendants. On appeal, the Court of Civil Appeals at Amarillo reversed and remanded the case, and on application the Supreme Court (235 S. W. 522) granted a writ of error on the appearance of conflict between the decision of the Amarillo court and the Court of Civil Appeals for the Fourth District in the case of Browne v. King, 196 S. W. 884.

Terrell Martin and Seely Martin, husband and wife, were living on a little tract of land in 1872, that was needed for the right of way for the Houston & Texas Central Railway Company. Capt. W. H. Gaston, who was interested in securing the right of way, traded them the tract of land in controversy for the tract they were living on. This was in 1872 or 1873. Gaston did not execute a deed to them at this time, but it appears from his evidence that he turned the property in controversy over to them, and about the same time they put a house on it and moved into the house. A good many years after this, Terrell Martin having died, Gaston executed and delivered a deed to the property in controversy, dated the 15th of April, 1887, recorded August 8, 1887, to Seely Martin. The house on this land appears to have been destroyed by fire in 1886. Seely Martin's estate was administered at her death, and this property was sold to the vendor of Ross, the original defendant herein, by her administrator.

Deck Martin is shown by the evidence to have been the son of Sim Martin, who was the son of Terrell and Seely Martin. Terrell Martin died before his son Sim Martin. On the death of Terrell Martin, Sim Martin inherited from him, and the plaintiff Deck Martin, as heir of Sim Martin, is entitled to recover the interest in the property in controversy inherited by Sim Martin, unless his right to do so is defeated by the matters and things set up by defendants herein, plaintiffs in error. This right of recovery having been transferred to the defendants by him, during the pendency of the suit, the only questions to be considered by us are those relating to, affecting, and controlling the suit of Bryan, the intervener, wherein he claims a two-thirds undivided interest in Deck Martin's share of the land in controversy by reason of his power of attorney from Deck Martin and his claim of part performance of his part of contract provided in the power of attorney.

The power of attorney, after setting out the appointment of Hart and Bryan as attorneys in fact, and those things that such attorneys in fact were authorized to do, proceeds as follows:

"And whereas, our said agents in fact, J. J. Hart and E. P. Bryan, will be at considerable trouble and expense in finding out and removing the cloud or clouds from our said land, therefore, as remuneration to them, we hereby give, grant, sell and convey unto them, the said J. J. Hart and E. P. Bryan, two-thirds (2/3) undivided interest of, in and to, any and all lands, money or other valuables so recovered for us. Said land shall be sold and money divided or they may be partitioned after being cleared up of all adverse claims, whatsoever as to our said attorneys shall seem best."

The first assignment of error presented in the application for writ of error raises the question of the failure of the Court of Civil Appeals to sustain or even to rule on the defendants in error's assignments of error presented in that court.

Our disposition of the case on other issues renders it unnecessary for us to pass upon this assignment.

Plaintiffs in error's second assignment of error is as follows:

"Second assignment. The court erred in permitting the intervener, Bryan, over defendant's objection, to introduce in evidence upon the trial hereof the power of attorney dated April 15, 1905, from Deck Martin and Charlie Rodgers to J. J. Hart and E. P. Bryan, because the evidence in the case was undisputed that whatever title Deck Martin may have had in the property in controversy was conveyed by him to J. L. Ross in June, 1909. The suit as it stands is one filed by the intervener, E. P. Bryan, on the 7th day of March, 1913, claiming an undivided two-thirds interest in the interest of Deck Martin in the property in controversy by virtue of the following language contained in said power of attorney: `And whereas, our said attorneys in fact, J. J. Hart and E. P. Bryan, will be at considerable trouble and expense in finding out and removing the cloud or clouds from our lands, therefore as remuneration to them, we hereby grant, sell and convey to them, the said J. J. Hart and E. P. Bryan, a two-thirds undivided interest of, in and to any and all lands, money or other valuables so recovered for us; said land shall be sold and money divided or they may be partitioned after being cleared up of all adverse claims whatsoever as to our said attorneys shall deem best.' This language conveys to the said Hart and Bryan no interest whatever in the subject of the power, but only conveys an interest in whatever should be obtained by the exercise and execution of the power. At the time of this trial, no lands, money or other valuables had been recovered for Deck Martin by Hart and Bryan; consequently the said Bryan had no such interest in the lands in controversy as could form the ground for a suit in trespass to try title, and the court erred upon the trial hereof in permitting the said Bryan to introduce the said power of attorney and conveyance as evidence of any title in him, as is shown by defendant's bill of exceptions No. 2."

The general rule is that a power of attorney, coupled with an interest, cannot be revoked by the grantor of the power. Daugherty v. Moon, 59 Tex. 399. Under the facts in this case the sale by Deck Martin to defendants was an attempt at revocation. Under the terms of the power of attorney here being considered, it is clear that it was an executory contract, and was not effective on delivery as a deed. The interest was a future one, to be vested in Bryan on recovery of the property. If this was the present status of the question, the case of Browne v. King (Tex. Civ. App.) 196 S. W. 884, and (Tex. Sup.) 235 S. W. 522, would be decisive of it. However, Chief Justice Phillips in the hearing before the Supreme Court discusses that question from the standpoint of there having been no performance or part performance on the part of attorney in fact brought home to the knowledge of Mrs. King. The facts in that case as recited by the Supreme Court are:

"The suit of the Acebos against Mrs. King for the land was brought by an attorney employed by Browne. Browne examined the records; furnished the attorney an abstract of title; went personally upon the land twice; and did such other things for the preparation of the trial as his attorney directed. The suit, however, was wholly in the name of the Acebos. It did not disclose any interest of Browne. Mrs. King in acquiring the title of the Acebos had no notice, so far as the record shows, of Browne's connection with the suit or of anything done by him in relation to it or the land. Her notice of any interest held by him in the land was such only as was afforded by the record of the power of attorney given him by the Acebos."

In this case Bryan was record attorney for the plaintiff in the trial court, had represented him for four years at the two trials of the case in the district court in the performance of his part of the contract as provided in the power of attorney. This was done prior to the purchase of Deck Martin's interest by the defendant Ross between the trial in the district court and appeal to the Court of Civil Appeals or pending the appeal to the Court of Civil Appeals. The suit was filed on July 19, 1905, and the deed from Deck Martin to defendant Ross was executed June 2,...