Eppinger v. McGreal
| Decision Date | 30 April 1868 |
| Parties | JAMES T. EPPINGER v. PETER MCGREAL ET AL. |
| Court | Texas Supreme Court |
Where a deed of conveyance, a mortgage to secure the purchase money, and a power of attorney to locate and sell a tract of land, were all given about the same time, and were between the same parties, the three instruments will be construed as one contract. 6 Tex. 174;11 Tex. 597;16 Tex. 472;18 Tex. 377;26 Tex. 634;27 Tex. 52, 129, 241.
Where a deed, a mortgage, and a power to sell, construed together, establish that the intention was to have the purchaser locate and take possession of the land, and to purchase and pay for one-half of the land $4,500, and to secure this he executed a mortgage, but did not locate (because another had already located it and obtained the grant), did not enter into possession, and did not pay for the land, he cannot maintain an action for a specific performance to recover the land, or for any other relief after twenty years have elapsed. The fair presumption then is, that he either could not or would not comply at the proper time.
ERROR from Smith. The case was tried before Hon. REUBEN A. REEVES, one of the district judges.
The record in this case is immensely voluminous. Many issues were presented in the pleadings and the able arguments of the counsel which were immaterial to the view taken by the court. The discussions upon the Spanish law and the translations of some of the highest Spanish authorities would be exceedingly interesting, but as the court declined to consider the power of the father to sell the property after his conveyance for the benefit of his children, or the power of the grantee over the property held in trust for the children, this well-explored field has to be left in the shade.
J. C. Robertson, for plaintiff in error.
Moore & Walker and S. P. Donley, for defendant in error.
On the 10th of September, 1832, in the city of Mexico, Colonel Don Tomas Quevado, by a notarial act, conveyed to José Maria Rudicindo Willis Powell, a native of the city, and a minor son of Willis J. Powell, seven and one-half leagues of land, providing in the deed of conveyance that until the grantee arrives at maturity he gives to the father the power and authority necessary and required by law; that by his authority or judicially, as it shall seem to him best, he may take and hold possession of said lands; and authorizing him to sell or alienate said lands or part of them, putting the sum given for them to such use as will be of service to his minor son, whether it be to give him an education, trade or profession; and, besides, during his minority the fund must be employed for his benefit.
Afterwards, on the 14th January, 1833, in the same city, the same donor and grantor conveyed to Maria de Jesus Estilla, daughter of Willis J. Powell, three and a half leagues of land, by a deed similar in all respects and containing the same power to the father to sell the land, or part thereof, and to apply the proceeds to such use as may be of service to his minor daughter.
These two deeds were founded upon a grant of eleven leagues of land which the said Quevado owned, but which had not then been designated or applied to any particular tract of land. The eleven leagues of land were, in 1835, located in what was then the Nacogdoches district, and the titles to the land perfected by the proper authorities.
On the 8th November, 1837, Willis J. Powell, the father of the two children, conveyed to Simon Wiess, of Nacogdoches, one undivided half of the eleven leagues, reciting as a consideration $4,000 to him paid, and also referring to the deeds executed by Quevado to his children for his authority to make the conveyance. He, however, does not in the deed pretend to act as the agent or guardian, tutor or father, of the children, but in his individual capacity.
On the same day Wiess mortgaged to Powell the same land conveyed by Powell to him to secure the payment of the same amount that Wiess paid for the land (viz.,...
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