Pool v. Unknown Heirs of Foster

• Decision Date: 08 February 1899
• Citation: 49 S.W. 923
• Parties: POOL et al. v. UNKNOWN HEIRS OF FOSTER.
• Court: Texas Court of Appeals

49 S.W. 923

POOL et al. v. UNKNOWN HEIRS OF FOSTER.

Court of Civil Appeals of Texas.

February 8, 1899.

Appeal from district court, Newton county; Stephen P. West, Judge.

Action by David Pool and others against the unknown heirs of Benjamin Foster. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. B. Powell, for appellants. Blake & Smith, for appellees.

FLY, J.

Appellants, as heirs of David Pool, deceased, sued the unknown heirs of Benjamin Foster in trespass to try title to 220 acres of land of the David Pool headright, in Newton county, The cause was tried by the court without a jury, and judgment was rendered for appellees. Appellants were admitted to be the heirs of David Pool, deceased, to whom the land, of which that in controversy was a part, was patented as his head right of 640 acres of land. On December 20, 1841, David Pool executed to John A. Smith a power of attorney to sell certain land described as "my headright, 640 acres of land." On May 17, 1843, John A. Smith executed to Benona Stephenson a deed to the same land, describing it as "all my right, title, and interest in and to the headright of David Pool, of six hundred and forty acres of land, situated on White Oak creek, in the county of Jasper." The deed contained a general warranty, and was filed for record on the 20th day of May, 1843. The power of attorney was filed for record on May 9, 1843. Appellees failed to connect themselves with the title to Stephenson.

The court held that the power of attorney and the deed from Smith to Stephenson established an outstanding title, and that appellants could not, therefore, recover; and it is insisted by appellants that this was error, because appellees did not connect themselves with such outstanding title. This proposition cannot be maintained. The title, if any, held by virtue of the instruments evidencing outstanding title, was a legal one, and in such instances a defendant can defeat the claim of a plaintiff without connecting himself with such title. Styles v. Gray, 10 Tex. 503; Portis v. Hill, 14 Tex. 69; Burleson v. Burleson, 28 Tex. 383; Shields v. Hunt, 45 Tex. 424. In case of an outstanding equity, the defendant must connect himself with the title, but not so in cases of outstanding legal titles. Capt v. Stubbs, 68 Tex. 222, 4 S. W. 467.

We are of the opinion that the description in the power of attorney was sufficient. David Pool could have but one headright of 640 acres of land, and there was no uncertainty in the description. Curdy v. Stafford, 88 Tex. 120, 30 S. W. 551; McCoy v. Pease (Tex. Civ. App.) 48 S. W. 208.

In the deed from John A. Smith to Stephenson no reference whatever is made to the power granted by David Pool, and it is insisted by appellants that the land was not sold under or by virtue of the power. In a case recently decided by the supreme court, the question involved in this case, as to whether a deed was intended to be the act of the man himself or the execution of a power, was passed upon, and it was said: "The rule which we deduce from the American authorities is that a trustee or donee of a power may execute the power conferred upon him by an instrument which does not refer to the power itself, but in...