Robson v. Tait

• Decision Date: 01 January 1855
• Citation: 13 Tex. 272
• Parties: ROBERT ROBSON v. CHARLES W. TAIT AND OTHERS, EX'ORS.
• Court: Texas Supreme Court

13 Tex. 272

ROBERT ROBSON

v.CHARLES W. TAIT AND OTHERS, EX'ORS.

Supreme Court of Texas.

1855.

OPINION TEXT STARTS HERESUIT BY ATTORNEY.

Under a power of attorney to sell lands, and to pay debts, and to do all and singular such acts as his principal could do and perform in person, an attorney in fact cannot maintain an action in his own name, to disembarrass the title of his principal of clouds or imcumbrances which may have supervened to impair their value or prevent their sale. (Note 49.)

Error from Colorado. The plaintiff alleged a power of attorney from John Low to sell lands, and to pay debts, and to do all and singular such acts as his principal could do and perform in person; that he had conveyed certain lands under the power to John F. Miller deceased, the testator of defendants, by a deed executed in his own name, with a warranty of title; that the said Miller for a valuable consideration had reconveyed the same lands to his principal and that the deed was not on record and had been lost; that the absence of the said deed and any record thereof has already thrown a cloud upon the title of the said Low, and has prevented and will continue to prevent the sale of all or any of the property reconveyed in said deed; that he is informed and believes that he is personally responsible on the warranty of title contained in the deed from him to the said Miller; and prayed that the defendants, executors of the said Miller, may be ordered to make to the said Low a reconveyance of the said lands conveyed by him to the said Miller. The defendants demurred to the petition on the ground that it showed no right in the plaintiff, in any capacity whatever, to maintain this action against the defendants. The demurrer was sustained and the petition dismissed, and this the plaintiff assigned as error.

J. H. Robson, for plaintiff in error

G. W. Smith, for defendants in error.

WHEELER, J.

There are many cases in which an agent or attorney in fact may maintain an action in his own name on contracts made by him on behalf of his principal; as where the contract is made in writing expressly with the agent, and imports to be a contract personally with him although he may be known to act as an agent; and generally, where the agent has acquired personal rights, he may maintain an action upon the contract in his own name, whether in the particular case the principal is or is not entitled to the same right. (Story on Agency, secs. 393, 404.) The present is not such a case. The suit...