Dooley v. Montgomery

• Decision Date: 15 January 1889
• Parties: DOOLEY <I>v.</I> MONTGOMERY <I>et al.</I>
• Court: Texas Supreme Court

Page 451

10 S.W. 451

DOOLEY

v. MONTGOMERY et al.

Supreme Court of Texas.

January 15, 1889.

Appeal from district court, Harris county.

Trespass to try title by Catherine Montgomery, her husband, and others against H. H. Dooley and others. Plea of not guilty. Judgment for plaintiff. Defendant Dooley appeals.

W. N. Shaw and S. R. Perryman, for appellant. F. G. Morris, for appellees.

HENRY, J.

This is an action of trespass to try title. The defendant pleaded not guilty. The case was tried by the court without a jury, and judgment was rendered in favor of the plaintiffs for the land. The defendant appealed.

The record shows a regular chain of title down to Amelia Harrell, she being at the time of the conveyance to her the wife of Josiah T. Harrell. The deed to her was made in 1845, and recited receipt of consideration of $500. There was no recital in the deed or fact in evidence giving to the deed to the wife other than its operation of conveying the title to the community. The wife made to her husband a power of attorney in terms authorizing him to sell the land. Afterwards, and during the life of the wife, the husband, in pursuance of the terms of this power of attorney, deeded the land to John H. Walton. This deed contains the following clause: "I, the said attorney, declare that I am duly authorized to sell and convey said property, and that I will warrant and defend the same against any and all claims whatever." The record shows a regular chain of title from Walton to appellant. Amelia Harrell died intestate, and appellees are her only heirs.

Appellant assigns as error that "the court erred in giving judgment for plaintiff, because the proof shows that the property in question was the community property of J. T. and Amelia Harrell, and the deed executed by him, and signed by him as attorney in fact for said Amelia Harrell, is in law a legal and valid conveyance of said community property."

We agree in every particular with this assignment: The wife's power of attorney gave the husband no power to sell the land, but, because it was community property, he had full power under the law to sell it. Rev. St. art. 2852. The conveying clause of the deed to Walton sufficiently shows that the land was conveyed as the property of the wife, and the husband's name is signed to the deed only as the agent of his wife. In the case of Heard v. Hall, 16 Pick. 460, it is said to be "the well-established rule of equity that where one having title acquiesces in...