Browne v. King

• Decision Date: 26 October 1921
• Docket Number: (No. 3196.)
• Citation: 235 S.W. 522
• Parties: BROWNE v. KING et al.
• Court: Texas Supreme Court

235 S.W. 522

BROWNE v. KING et al.

(No. 3196.)

Supreme Court of Texas.

October 26, 1921.

Rehearing Denied January 4, 1922.

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

Suit by Dimas F. Acebo and another against Mrs. H. M. King and others, W. H. Browne intervening. From judgment of the Court of Civil Appeals (196 S. W. 884) affirming a judgment for defendants, intervener brings error. Affirmed.

J. C. Scott and P. M. Young, both of Corpus Christi, for plaintiff in error.

James B. Wells, J. K. Wells, and Harbert Davenport, all of Brownsville, for defendants in error.

PHILLIPS, C. J.

The suit is a controversy between W. H. Browne and Mrs. H. M. King over an undivided interest of approximately 1,044 acres of land in Kleberg County. It was originally instituted by Dimas F. Acebo and Joseph A. Acebo against Mrs. King. Later, the Acebos settled the suit by conveying the land to Mrs. King. This was without Browne's knowledge. After this conveyance and while the case continued on the court's docket, Browne intervened, asserting an interest in the land in virtue of a power of attorney given him by the Acebos, under which he claims the suit was originally brought.

The Acebos held title under one Domingo Rotge, and subject to a mortgage lien upon the land in Mrs. King's favor, given by Rotge to secure certain indebtedness. During the life of this indebtedness and lien and while the title, under a duly recorded deed, was in Jose Acebo, the father of the Acebos here and through whom they deraign title, Mrs. King instituted a foreclosure suit and obtained a judgment for her debt with foreclosure of her lien. Jose Acebo, the then holder of the title, was not made a party to the foreclosure suit. At the foreclosure sale the land was bought in by the Milmo National Bank of Laredo for $4,822, an amount sufficient to satisfy the judgment debt. Later, the bank conveyed the land to Mrs. King for a consideration of $4,458.35, paid by her, and she went into possession. Her possession has since continued.

Some time after these proceedings and after they had acquired the Jose Acebo title, Dimas F. and Joseph A. Acebo gave to Browne the power of attorney which is the basis of his claim to an interest in the land. It was duly of record when Dimas F. and Joseph A. Acebo settled their suit for the land against Mrs. King by their conveyance to her. The power of attorney, among other things, empowered Browne to employ counsel and to sue for this land, and provided that in consideration of his services in effecting its recovery for the Acebos there was granted him one-half of the amount of land so recovered.

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 the trial court a verdict was directed against Browne. The judgment was affirmed by the honorable Court of Civil Appeals. Browne, in this court, makes no complaint of the judgment except as between Mrs. King and himself.

The instrument executed by the Acebos and given Browne was not effective on delivery as a deed to one-half of the land. It conveyed no present interest. His interest was to be a future one. It was to be in the land when "recovered," and then only in consideration of the performance of his part of the contract. Except upon such performance he was to have no interest. Further action on his part was necessary—his recovery of the land for the grantors by the prosecution of a successful suit or amicable partition. There was no grant to him of an interest in the land under its existing status. The grant was an interest in the land "so recovered," revealing very plainly that his interest was to be effective only after the successful exercise of his agency. The necessity for future action on Browne's part as the condition for the vestiture of any interest in his favor made the contract purely executory....