Horst v. Lightfoot

• Decision Date: 21 December 1910
• Citation: 132 S.W. 761
• Parties: HORST et al. v. LIGHTFOOT et al.
• Court: Texas Supreme Court

Page 761

132 S.W. 761

HORST et al. v. LIGHTFOOT et al.

Supreme Court of Texas.

December 21, 1910.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by J. W. Lightfoot and others against A. Horst and others, impleaded by defendant Horst. Judgment for defendants was reversed by the Court of Civil Appeals (122 S. W. 606), and the defendants bring error. Reversed and remanded.

J. T. Bowen, Gordon Boone, and Geo. D. Neal, for plaintiffs in error. W. W. Meachum, Chas. Turner, L. C. McBride, and Hefley, McBride & Watson, for defendants in error.

WILLIAMS, J.

The plaintiff in error Horst was the defendant and the defendants in error were the plaintiffs below, and the other plaintiffs in error were impleaded by Horst as his warrantors. The defendants in error will be referred to as plaintiffs and the plaintiffs in error as defendants. The action was one of trespass to try title to recover 1,280 acres of land in Grimes county, patented to Valentine Schneider October 1, 1841, and conveyed by him to Abraham McMillan by deed executed September 7, 1842, but not recorded until July 11, 1853. The plaintiffs claim as heirs of George Resley, to whom McMillan conveyed November 7, 1854. The defendant Horst claims 812 acres of the tract, disclaiming as to the rest (1) under the patentee, Schneider, by execution sale of the land as his made during the interval between the date and the registration of the deed from him to McMillan; and (2) under a conveyance made by an attorney in fact for Resley after the conveyance to him by McMillan. The execution sale was made July 5, 1853, in pursuance of a levy made May 30, 1853, the writ having issued May 5, 1853, on a judgment against Valentine Schneider, the same person as the patentee, rendered September 6, 1850, in favor of Conrad Meuly, who purchased at such sale. The judgment recited that the defendant failed to appear, and was silent as to service on the defendant. The petition on which it was based claimed only an indebtedness from the defendant to the plaintiff, alleging that the defendant was "absent from the state so that the ordinary process of law cannot be served on him," and praying for service by publication. The affidavit for service by publication was that "the facts set forth in the foregoing petition are correct and true, and, further, that said Schneider is not a resident of the state." The citation issued and published recited that Schneider was a nonresident. A further statement of its contents is unnecessary.

The facts as to the other claim of title of the defendants are as follows: They produced from the records of Montgomery county a copy of a power of attorney from George Resley, of the county of Milam, to Lemuel G. Clepper, of the county of Montgomery, of date August 4, 1855, empowering him "to sell and dispose of absolutely in fee or otherwise the above-described land (that in controversy) at not less than one dollar per acre in such quantities and to such persons as my said attorney shall think proper, and also for me and in my name and as my act and deed to sign, seal, execute and deliver such deeds for the absolute sale of the same or otherwise as my said attorney shall deem proper; hereby ratifying and confirming all such conveyances, deeds, bargains and sales which shall at any time hereafter be made by my said attorney touching the premises." They also produced the records of Grimes county, showing a deed from George Resley of the county of Milam, by his attorney in fact Lem G. Clepper of the county of Montgomery, to James Mitchell, reciting the consideration to be $615 paid and $615 secured to be paid. The statement of facts does not give the description of the land conveyed, but recites that it is that described in the plaintiffs' petition, which is the entire 1,280 acres. It is stated in the findings of the trial judge that the deed conveys that tract less 50 acres and this was admitted to be correct in the argument in this court; so that we may assume that the attempt was to sell and convey 1,230 acres at $1 per acre, half cash and half on credit. The plaintiffs, in rebuttal, produced the record in Grimes county of a power of attorney from George Resley to Samuel G. Clepper, which otherwise, with the exception that it fixes the minimum price of sale at $3 per acre, is in the exact language, of same date, witnessed by the same persons and acknowledged before the same officer on the same day (August 4, 1855) as that first stated. The first appears to have been filed for record in Montgomery county August 20, 1855, and the latter to have been filed in Grimes county at 10 o'clock a. m. of October 20, 1855, which was also the day and hour of filing the deed executed by the attorney in fact to Mitchell. The evidence shows no effort of either party to explain whether there were, first, really two Cleppers with a power to each; or, second, only one with two powers with conflicting provisions as to the minimum price, or, third, only one attorney and one instrument, changed in recording, or otherwise. The trial court found that there was a power to Lemuel G. Clepper and another to Samuel G. Clepper, and that the deed to Mitchell was executed by the former under the first-named power, and that the title passed by such deed.

It...