Daughtrey v. Knolle

• Decision Date: 01 January 1876
• Citation: 44 Tex. 450
• Parties: JAMES DAUGHTREY v. ERNST KNOLLE.
• Court: Texas Supreme Court

44 Tex. 450

JAMES DAUGHTREY

v.ERNST KNOLLE.

Supreme Court of Texas.

1876.

APPEAL from Austin. Tried below before the Hon. Livingston Lindsay.

Knolle brought suit against James Daughtrey for $162, the amount of an alleged deficiency of 27 acres of land, at six dollars per acre, in a tract sold and represented to contain 498 acres, but which, on actual measurement, contained only 471 acres. The deed, the covenants in which are relied upon, is as follows:

+----------------------+
                ¦THE STATE OF TEXAS, ¦)¦
                +--------------------+-¦
                ¦Austin County.      ¦)¦
                +----------------------+
                

Know all men by these presents, that I, James Daughtrey, of the county and State above written, in consideration of the sum of twenty-nine hundred and eighty-eight dollars, ($2,988,) five hundred dollars of which has this day been paid into my hand by Ernst Knolle, also of the county and State above written, the receipt whereof is hereby fully acknowledged--and for the balance of the said consideration, to wit, the sum of twenty-four hundred and eighty-eight dollars, ($2,488,) the said Ernst Knolle, with F. Knolle and Christoph Kubitz, have this day executed and delivered to me their certain joint and several promissory notes, of the tenor and effect following:

The first note for five hundred dollars, payable to Felix R. Daughtrey, or order, six months after date; the second note for one thousand dollars, payable to Felix R. Daughtrey, or order, twelve months after date; and the third note and last for nine hundred and eighty-eight dollars, payable to Felix R. Daughtrey, or order, eighteen months after date; all of said notes bearing even date with this instrument--have granted, bargained, sold, and conveyed, and by these presents do grant, bargain, sell, and convey unto the said Ernst Knolle, his heirs and assigns, all that certain tract or parcel of land decreed to the said Felix R. Daughtrey by the County Court of Austin county, at the January Term, A. D. 1855, thereof, upon a partition of the lands belonging to the estate of Anna Daughtrey, deceased, as share No. 4, in the division of the upper part of the Daughtrey league of land, on the south side of the West Fork of Mill creek, in Austin county, about 13 miles west from Bellville, being the four hundred and ninety-eight acres out of a tract designated on a plat of said tract in Austin county as No. 4, containing six hundred and forty-six acres, and being the balance left after taking off the one hundred and forty-eight acres, as set forth in share No. 2 in the division of said estate, comprehended within the following metes and bounds, to wit: (Setting out field-notes.)

To have and to hold unto the said Ernst Knolle, his heirs and assigns, in fee-simple forever.

“And I, the said James Daughtrey, bind myself, my heirs and legal representatives, to warrant and forever defend the title to all and singular the above-described premises unto the said Ernst Knolle, his heirs and assigns, against the claim or claims of all persons lawfully claiming, or to claim the same or any part thereof.

In testimony whereof I hereunto sign my name this 22d day of February, A. D. 1859.

JAMES DAUGHTREY,

Attorney in fact for

FELIX R. DAUGHTREY.”

The defendant pleaded that the purchase was of the tract of land in gross; that it was not the covenant of the defendant, but of his principal; that the covenant was not of quantity, but of title, also the statute of limitations of two years.

Verdict and judgment for plaintiff, and defendant appealed.

The other facts appear in the opinion.

Harris & Kleberg, for appellant.

Hunt & Holland, for appellee.

MOORE, ASSOCIATE JUSTICE.

The judgment in this case is based upon the supposition that appellant is personally liable on the general covenant of warranty of title in the deed to appellee, attached as an exhibit to his petition for deficiency of the tract of land therein described. That the record does not support or warrant such a conclusion we think quite obvious.

If we were controlled alone by common-law rules of construction and interpretation, the instrument referred to in appellee's petition, and upon which he relies, might, and probably would, if binding upon any one, be treated as the deed of appellant, and not that of his principal. But in our courts where the principles and rules of equity prevail, as has been frequently decided, we should hold to the contrary. (Giddens v. Byers, 12 Tex., 75;Rogers v. Frost, 14 Tex., 267;Rogers v. Bracken, 15 Tex., 564.) The body of the instrument purports to be the individual deed of the appellant, though it is a conveyance of land decreed by the County Court to Felix R. Daughtrey on the partition of his mother's estate, and the notes given for the deferred payment, as recited in the deed, were made payable to him, and it is signed by “James Daughtrey, attorney in fact for Felix R. Daughtrey.” It is also to be noted that there are no subscribing witnesses to it. It cannot therefore be held to have effect as a deed until it was acknowledged as such before the clerk. And then, as may be inferred from the recitation of the certificate that appellant's name appears to the instrument as attorney in fact, it is inferable that it was in his capacity as attorney, and not in his individual character, that he acknowledged and thereby executed it.

But if there is any doubt as to the construction which should be given to the deed, looking merely to it, all doubt or uncertainty is removed when we consider, in connection with it, the other evidence tending to show the capacity in which appellant acted; to none of which does it appear an objection was made. It clearly appears that appellee knew that the land belonged to Felix R. Daughtrey, and that appellant had no interest whatever in...