Lawrie v. Miller, 1494-5772.

• Decision Date: 06 January 1932
• Docket Number: No. 1494-5772.,1494-5772.
• Citation: 45 S.W.2d 172
• Parties: LAWRIE v. MILLER.
• Court: Texas Supreme Court

45 S.W.2d 172

LAWRIE v. MILLER.

No. 1494-5772.

Commission of Appeals of Texas, Section A.

January 6, 1932.

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

Suit by Alexander B. Lawrie against Mrs. Lola Miller. A judgment for plaintiff in part was reversed and judgment rendered for defendant by the Court of Civil Appeals [25 S.W.(2d) 984], and plaintiff brings error.

Reversed and remanded.

Futch & Cooper, of Henderson, and King, Mahaffey, Wheeler & Bryson and E. Newt Spivey, all of Texarkana, for plaintiff in error.

Charles L. Brachfield and R. T. Jones, both of Henderson, for defendant in error.

HARVEY, P. J.

This suit was brought in the district court of Rusk county by the plaintiff in error, Alexander B. Lawrie, against Mrs. Lola Miller, the defendant in error, to establish a debt of Mrs. E. C. Shaw, now deceased, and to foreclose a mortgage on a certain tract of land belonging to the estate of Mrs. Shaw, situated in Rusk county. Mrs. Miller is the sole heir at law of Mrs. Shaw, and is sued as such. The debt is evidenced by promissory notes, which, together with the mortgage, were executed for and in the name of Mrs. Shaw. during her lifetime, by A. P. Miller as her attorney in fact. The said notes were given for money borrowed by A. P. Miller, in the name of Mrs. Shaw. The power of attorney under which Miller acted in borrowing said money and in executing said notes and mortgage reads as follows:

"The State of Texas, County of Rusk,

"Know All Men By These Presents:

"That Mrs. E. C. Shaw, of Tatum, County of Rusk and State of Texas, has this day made, constituted and appointed and by these presents does make, constitute and appoint A. P. Miller, of Tatum, in the County of Rusk and State of Texas, my true and lawful attorney for and in my name, place and stead, to transact any and all of my legal business (sign checks, notes, and settle my personal accounts of whatsoever nature), buy and sell land in and for my name, create loans again any personal or real estate that I may have in my name, buy and sell cattle in and for my name, hereby giving and granting to said attorney my full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or substitute shall lawfully do in the premises by virtue hereof.

"In testimony whereof I have hereunto set my hand and seal, at Tatum, this 19th day of April, A. D. 1920.

                                       "Mrs. E. C. Shaw."
                

As to the above power of attorney, the defendant in error pleaded non est factum; and at the trial the evidence was conflicting as to the fact of Mrs. Shaw having executed the instrument. The jury, however, found the instrument to be genuine. The trial court rendered judgment in favor of the plaintiff in error, establishing the amount of the debt and foreclosing the mortgage lien. No personal liability was adjudged against the defendant in error.

The Court of Civil Appeals construed the above power of attorney as not embracing within its terms the power, on the part of A. P. Miller, to execute for Mrs. Shaw the mortgage in controversy; and having so construed said instrument, that court reversed the judgment of the trial court, and rendered judgment for the defendant in error, without passing on other questions properly raised in said court by the defendant in error. 25 S.W.(2d) 984.

In our opinion, the Court of Civil Appeals misconstrued the terms of said power of attorney. The law presumes that Mrs. Shaw intended the clause "create loans again my personal and real estate that I have in my name" to mean something. In ascertaining her intent in this respect, it is proper to construe said clause, as a whole, in the light of all other provisions contained in the instrument, and to construe each word of the clause in the light of the context. When the clause is so construed, it appears with reasonable certainty that Mrs. Shaw meant thereby to empower Miller to borrow money in her name, and to mortgage her property to secure the debts thus created. The word "again," in the connection which it is used, would render the clause meaningless, if the word, as written, were given its literal meaning. The context, however, leaves no doubt that the word as written was intended by the grantor to bear the meaning of the word "against." This being so, courts will disregard the incorrect spelling, and ascribe to the word the meaning which it evidently was intended to convey. The word "loans," in the connection which it is used, plainly appears to have been used in the colloquial sense of debts arising from the borrowing of money. It is a commonly known fact that, in ordinary parlance, the word "loans" is frequently used in that sense. No one can doubt that, if the word, in the connection which it is used in the instrument, were intended to mean what the dictionaries say it means, then the clause under consideration becomes but a senseless group of words. This absurdity will not be imputed to Mrs. Shaw, since the clause, as we have pointed out, is susceptible of a rational meaning. We fully recognize the rule that powers granted by an...