Reese v. Medlock

• Decision Date: 01 January 1863
• Parties: EDWARD REESE AND OTHERS v. THOMAS MEDLOCK.
• Court: Texas Supreme Court

27 Tex. 120

EDWARD REESE AND OTHERS

v.THOMAS MEDLOCK.

Supreme Court of Texas.

1863.

It is a well settled general principle, that when an agency is created by a written instrument the nature and extent of the authority given by it must be ascertained from the instrument itself, and cannot be enlarged by parol evidence of the usage of other agents in like cases, as that would be to contradict or vary the terms of the written instrument.

In some cases, especially of general or implied agencies, this general rule may be subject to modifications, whereby the usages of a particular trade or business, or of a particular class of persons, are admissible in evidence, not for the purpose of enlarging the powers of the agents employed therein, but as the means of interpreting and ascertaining those powers which are actually conferred upon such agents.

A power of attorney empowering the agent “to sell, transfer and convey” the lands of the principal, and “generally to do and perform all acts and deeds for me and in my name concerning any and all property,” etc., does not authorize the agent to barter or exchange the land of his principal for other property.

Evidence that it was the custom of land agents in this state to barter or exchange for other property the land of their principals, when empowered to sell the same by power of attorney of the character above indicated, held to be inadmissible as contravening the legal import of the power of attorney.

When an unauthorized act of an agent purports to be under seal, and is in the name of the principal, so as to be his deed, an express ratification by the principal should, it seems, be also under seal.

But in our courts, such acts of the principal as would operate as an estoppel in pais will be held sufficient to confirm a contract under seal made by an agent without legal authority.

The burden of proving a ratification by a principal of an unauthorized act of his agent devolves upon the party asserting the ratification.

Assent of a principal to an unauthorized act of his agent may, in some cases, be presumed from his acquiescence in the act after notice of it; but it is a principle beyond question and of universal recognition, that there can be no binding ratification without full knowledge.

The record of a deed made by an agent in the name of his principal is not constructive notice to the principal of its contents; nor that the agent in executing it had exceeded the authority conferred upon him.

But when an agent in making conveyance of his principal's land has exceeded his authority, the registration of his deed, and the subs quent possession of the land by the purchaser, are facts which, in connection with all other circumstances of the case are proper for the consideration of the jury in determining whether the principal had, after full knowledge, ratified the act of his agent by assent thereto or acquiescence therein.

But where the principal is not shown to have had notice or knowledge of the unauthorized act of his agent, it was error to instruct the jury that, if the principal did not disaffirm his agent's act within a reasonable time, they might presume a ratification by him of the act of his agent.

APPEAL from Burnet. Tried below before the Hon. E. H. Vontress.

The appellants, as heirs at law of Thomas Reese, deceased, brought this suit against the appellee for the recovery of a tract of land in Burnet county, and for the cancellation of a deed to said land executed to the appellee by John P. Powers, as the agent and attorney in fact of the said Thomas Reese, deceased.

The defendant, Medlock, set up title in himself by virtue of his deed from Thomas Reese by John P. Powers, as his attorney in fact, dated April 23, 1857, and recorded May 9, 1857. In support of this deed, the defendant introduced a power of attorney from Reese to Powers, dated November 13, 1855, and recorded in Burnet county on the 22d of November, 1855. By this power of attorney, Reese authorized Powers “to sell, transfer and convey all lands that I may have in the said state of Texas, and generally to do and to perform all acts and deeds for me and in my name concerning any and all property that I now own in said state of Texas; and I do hereby ratify and confirm all the acts and doings of my said attorney legally done in the premises.”

The deed to Medlock executed by Powers in the name of Reese purported to be made in consideration of the sum of nine hundred dollars, the payment of which was acknowledged. But the plaintiffs alleged in their petition, and the defendant acknowledged in his answers, that the real consideration was a negro woman conveyed to Powers by Medlock, estimated at the value of nine hundred dollars. In his answers, Medlock alleged that it was the custom of land agents in that s...