McKinney v. Rodgers

• Decision Date: 09 January 1895
• Parties: McKINNEY et al. v. RODGERS et al.
• Court: Texas Court of Appeals

29 S.W. 407

McKINNEY et al. v. RODGERS et al.

Court of Civil Appeals of Texas.

January 9, 1895.

Error from district court, Bowie county; John L. Shepperd, Judge.

Action by C. M. McKinney and others against James E. Rodgers and others. From a judgment for defendants, plaintiffs bring error. Reversed.

Todd & Hudgins, for plaintiffs in error.

RAINEY, J.

This is an action of trespass to try title, brought by plaintiffs in error to recover, as heirs of Ashley McKinney, the land in controversy. The defendants claimed through a power of attorney executed by said heirs (among whom were B. M. Donnell and P. A. Kelly, married women). The certificate of acknowledgment to said power of attorney of Mrs. Donnell and Mrs. Kelly was fatally defective. Defendants pleaded their title, claiming through said power of attorney, by which plea they admitted that said certificate was defective, and asked for a judgment correcting the same. The plaintiffs pleaded the four-years statute of limitation, both by demurrer and plea in bar to defendants' cross action. The demurrer was overruled, and upon hearing judgment was rendered for defendants. The plea of defendants shows on its face that the power of attorney was executed in 1879, — more than 12 years before the institution of this suit. The only question raised by plaintiffs in error is that the right of defendants to have the certificate of acknowledgment corrected by a judgment of the court was barred by four years' limitation; the record showing that more than that length of time had elapsed from the time the certificate was made until suit was brought. There can be no question but that sufficient time had elapsed to bar defendants' right to have the certificate corrected by a judgment of court, and, this fact appearing from the plea of defendants, the demurrer should have been sustained. Norton v. Davis, 83 Tex. 32, 18 S. W. 430. The acknowledgment being defective as to Mrs. Donnell and Mrs. Kelly, the power of attorney conferred no authority upon Bell to convey their interests in the land, and defendants did not thereby acquire title to such interests. The judgment as to all parties except White Sumler is reversed, and the cause remanded. As Sumler was not served with notice of plaintiffs' application for writ of error, this cause is dismissed as to him.