Hermann v. Reynolds

• Decision Date: 18 January 1880
• Citation: 52 Tex. 391
• Parties: GEORGE HERMANN v. GEORGE REYNOLDS.
• Court: Texas Supreme Court

52 Tex. 391

GEORGE HERMANN

v.GEORGE REYNOLDS.

Supreme Court of Texas.

Jan. 18, 1880.

ERROR from Nueces. Tried below before the Hon. John C. Russell.

Suit in the District Court of Nueces county, in trespass to try title, for a tract of four hundred and eighty acres of land, situated in Nueces county, patented in name of John Onery by virtue of bounty warrant for that amount of land.

Trial at the Spring Term, 1879, of the District Court of

Nueces county, by the judge, without a jury, and a judgment rendered in favor of the defendant, Reynolds.

The evidence showed that John G. Onery, generally known as John Onery, was a soldier of the Texas army; that he received two bounty warrants for four hundred and eighty acres each; these were placed in the hands of John Graham for location, and the land in question was surveyed by virtue of one of the bounty warrants.

On May 3, 1847, John Onery executed a power of attorney to John Hermann, authorizing him, amongst other things, to dispose of these two bounty claims. On March 10, 1849, John Hermann, as attorney in fact, conveyed two bounty warrants to George Hermann, the plaintiff. The land in Nueces county, surveyed by virtue of one of these warrants, was patented to John Onery on October 11, 1848.

The only evidence offered on the part of Reynolds was a deed from Margaret Menly. There was no claim of any title in Mrs. Menly.

The court below held that the transfer was not sufficient to convey land which had been patented by virtue of the warrant, and rendered judgment for the defendant, on the ground that the plaintiff had not shown title in himself.

Mc Cambell & Givens, for plaintiff in error.--The land, when located, belongs to the owner of the certificate. (Keyes v. Houston and Great Northern Railroad Co., 50 Tex., 174;Walker v. Howard, 34 Tex., 506;31 Tex., 454.)

F. E. McManus, for defendant in error.

I. The evidence offered by the plaintiff to sustain his claim does not correspond with the allegations of his petition, and, being incompetent to sustain the issue in his behalf, the District Court did not err in disregarding it.

II. The sale of a bounty claim by an agent, whose authority to sell it had been previously revoked and superseded by the act of his principal in converting the claim into land, is not evidence of a sale of land, and the District Court did not err in so regarding it. (Guffey v. Moseley, 21 Tex., 410;Cuney v. Dupree, 21 Tex., 218;Parker v. Beavers, 19 Tex., 410;Oliver v. Chapman, 15 Tex., 403;Van Alstyne v. Bertrand, 15 Tex., 179;Young v. Epperson, 14 Tex., 618;Johnson v. Newman, 43 Tex., 628.)

A glance at the date of the deed under which the plaintiff sets up claim to the land, (even if it were subject to no other objection,) will show that it was made by virtue of the power of attorney from Onery to John Hermann, dated five months after that power had been revoked and superseded, as to one of the bounty claims at least, by Onery causing a patent to be issued in his own name for four hundred and eighty acres of land, thus converting, as he had a right to do, his personal chattel into real estate.

There is no evidence that John G. Onery, who constituted John Hermann his attorney, and under whom the plaintiff claims the land in dispute, is the identical John Onery in whose favor the patent for land in Nueces county was granted. But, even admitting his identity for a moment, that fact would not aid the case made out by the plaintiff. He never divested himself of the right to revoke his power of attorney and supersede the agent he had appointed by it.

At the time of the transfer to plaintiff, the bounty claim had been discharged to the true owner. It had been extinguished, and no longer had existence as a claim. When the plaintiff supposed he bought it, he bought nothing. Nor does it appear that Onery ever parted with his right to the property, or any part of it, to the plaintiff. He had conveyed no interest in it to John Hermann, his attorney in fact; the latter had no lien on it. It was personal property, and if such lien existed, could only exist through actual possession. The power of attorney was revocable at any moment, at the option of Onery. He exercised that option so far as the bounty claim was concerned, and he had a right to do so.

The language of the power of attorney is “bounty claims.” Had the claims been converted into land warrants, in the possession of Onery, at the date of the power of attorney, it was easy to identify them by that name, as well as by number and date. They would then have passed by delivery, and the plaintiff have occupied a different position from the one he now stands in. But even in that event it is not easy to see how he could prevail in a suit for the land in question, in view of the decision in Johnson v. Newman, where, although there was a violation in bad faith of a previous contract, (neither of which elements exists in this case,) the court sustained...