Frost v. Erath Cattle Co.

• Decision Date: 23 June 1891
• Citation: 17 S.W. 52
• Parties: FROST v. ERATH CATTLE CO.
• Court: Texas Supreme Court

17 S.W. 52

FROST v. ERATH CATTLE CO.

Supreme Court of Texas.

June 23, 1891.

Commissioners' decision. Section B. Appeal from district court, Hood county; W. H. DEVINE, Judge.

Action of trespass to try title by Erath Cattle Company against Theresa Frost. Judgment for plaintiff. Defendant appeals. Reversed.

Appellant claims error in overruling the objections to the introduction in evidence of the deeds, one from Charles Cobb to Joseph Monks, and the deed from said Monks to G. W. & W. F. Norton, because of the patent and latent ambiguity in the descriptions of the lands intended to be conveyed, in that it appeared on the face of the deeds that a number of parcels of the land were purported to be conveyed with a clause excepting lands "previously conveyed," and which were not identified, nor any reference made to any means of identification; and further referred to other deeds and plats essential to identification, which were not offered in evidence, and without any further description; and that the only description in the deed from Monks to Nortons that could be attributed to the land in controversy was "blocks numbered 1-2 & 3, being the whole of the W. R. Martin survey," and "being all the lands in said counties of Erath and Hood conveyed to said Joseph Monks," "which conveyances are now on record in said county of Erath;" and that no evidence was offered to show that blocks No. "1-2 & 3," W. R. Martin survey, was the land in controversy, nor that they were not embraced in the excepted lands "previously conveyed," nor that they were in Hood county. Other facts are stated in the opinion.

Thos. T. Ewell, for appellant.

TARLTON, J.

This suit was instituted, in trespass to try title, by appellee against appellant, on December 29, 1885, in the district court of Hood county, to recover the W. R. Martin 640-acre survey in that county. After the patent, appellee's title consisted of consecutive transfers to himself, the first of these transfers being a letter of attorney from Richard B. Kimball, the patentee of the land, to Richard Kimball, together with a deed thereunder executed by the attorney in fact, Richard Kimball, to Rebecca de Cordova, embracing a number of surveys in Hood and Erath counties; the power of attorney bearing date January 11, 1868; the deed, August 23, 1871. Appellant claims through a judgment for debt from the district court of Galveston county against the patentee, Richard B. Kimball, in favor of R. Ostermann, dated June 9, 1869, and on which executions issued annually until June 5, 1878, the date of the last execution, until May 6, 1884, when the execution issued under which one James M. Robinson, the vendor of appellant, bought, July 1, 1884, after due levy and advertisement. Appellant claims that the judgment referred to was recorded in Hood county in 1876. The court rendered judgment for the plaintiff for the land as described in the petition, and from this judgment the defendant appeals. No conclusions of law and fact are in the record.

The plaintiff read in evidence, over the objection of defendant, a quitclaim deed from Richard B. Kimball, through his attorney in fact, Richard Kimball, to Rebecca de Cordova, reciting, as the consideration thereof, "the release to him by the said Rebecca de Cordova of all her claims, right, title, and interest in and to the Texas lands of the said Richard B. Kimball, or the proceeds thereof, and more especially the interest in said lands derived by the said Rebecca de Cordova, by virtue of an instrument executed in her favor by the said Richard B. Kimball, and bearing date January 22, 1852, and by virtue of a certain agreement made by the said Richard B. Kimball and Rebecca de Cordova, dated January 20, 1869. Appellant's objection to this instrument was that its execution by Richard Kimball was not authorized by the power of attorney under which he claimed to act, and we are called upon by his first assignment of error to review the action of the court in overruling the objection. The power of attorney recites that the attorney in fact, Richard Kimball, is authorized "to take full and absolute charge of all my business and affairs whatsoever in the state of Texas, to demand, sue for, recover, and receive all and any debts due me, to compound the same in his discretion, and give acquittances and discharges therefor; and, further, to make contracts for the sale of any and all tracts of land owned by me in said state of Texas, at any price, in the discretion of my said attorney; and as my agent and attorney hereby constituted to execute full and sufficient deed of conveyance in law to any person or persons to whom he may or shall make sale of any of my lands aforesaid, and legally to acknowledge and deliver the same, and receive from the purchaser or purchasers the consideration money therefor, and make contracts for the leasing of any of my said real estate, and for the improvement thereof according to his discretion, and to execute leases, grant privileges, and generally to manage, direct, and control all matters connected with or appertaining to my property in the state of Texas, hereby revoking by this instrument any previous power of attorney by me executed relating to my property in Texas, giving and hereby granting to my said attorney full power and authority in and about the premises to use all due means, cause, and process in the law for the full, effectual, and complete execution of the business aforedescribed, and in my name to make and execute due acquittance and discharge, and for the premises to appear, and the person of me, the constituent, to represent before any governor, judge, justice, officers, and ministers of law whatsoever, in any court or courts of judicature, and there on my behalf to answer, defend, and reply unto all actions, causes, matters, and things whatsoever relating to the premises; also to submit any matter in dispute respecting the premises to arbitration or otherwise, with full power to make and substitute for the purposes aforesaid one or more attorneys under my said attorney, and the same at pleasure to revoke, and generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises as fully, amply, and effectually, to all intents and purposes, as I, the said constituent, if present, ought or might personally, although the matter should require more special authority than is herein comprised; I, the said constituent, ratifying, allowing, and holding firm all and whatsoever my said attorney, or his substitutes, shall lawfully do, or cause to be done, in and about the premises by virtue of these presents."

It sufficiently appears from the recitals in the deed that the...