Smith v. Sublett

• Decision Date: 31 October 1866
• Citation: 28 Tex. 163
• Parties: W. T. SMITH ET AL. v. F. B. SUBLETT, ADMINISTRATOR, ETC.
• Court: Texas Supreme Court

28 Tex. 163

W. T. SMITH ET AL.

v.F. B. SUBLETT, ADMINISTRATOR, ETC.

Supreme Court of Texas.

October, 1866.

A defendant may plead as many inconsistent pleas as he may choose, provided they are pertinent and in due order of pleading; and an intervenor who is occupying the attitude of a defendant, and who is resisting a claim to his property asserted by a plaintiff, is entitled to the same latitude in his pleadings. Pas. Dig. art. 1441, note 548; 21 Tex. 633.

When an authority in the nature of a personal trust is conferred, it does not impliedly invest the agent with the right of substitution, but is to be considered exclusively personal, unless by the language used, or by a fair presumption arising from the particular transaction or the usage of trade, a broader power be conferred upon the agent.

A contract between the owner of a land certificate and his agent, by which the agent is employed and empowered to locate the certificate, involves a personal confidence reposed in the agent, and does not, in the absence of an express power of substitution and of an established custom of the country, confer upon the agent the right to transfer the trust to another person.

A principal is not chargeable with notice of all acts done by his agent with reference to the subject-matter of the agency, but of such acts only as are within the scope of the authority conferred upon the agent. If an agent, without authority, assume to exercise a power of substitution, the principal is not chargeable with notice thereof.

The possession of a land certificate does not imply a power in the holder to employ another person to locate it. The title to such an instrument does not pass by delivery, and, if it have been assigned by the grantee, the presumption is, that it belongs to the assignee, and not to a third person in whose possession it may be.

The mere fact that a land certificate has not been assigned to the person having possession of it is of itself sufficient to put other persons on their guard in contracting with the holder to locate it for his benefit.

The act of receiving a patent from the general land office cannot be construed into a ratification by the party receiving it of an act of which he had no knowledge.

ERROR from Limestone. The case was tried before Hon. JOHN GREGG, one of the district judges.

This action was brought to the fall term, 1852, of the district court of Limestone county, by David R. Mitchell, as administrator of Thomas J. Smith, deceased, to recover of George A. Sublett, who was a non-resident of the state, one-fourth of a league and labor of land located under the headright certificate of Willis M. Williams. Mitchell died while this suit was pending, and the heirs of Smith, now plaintiffs in error, were admitted as plaintiffs below. The interest claimed by the plaintiffs in their original and amended petitions was a “locative interest,” acquired by their intestate and his representatives under a contract between him and George A. Sublett, dated January 27, 1847.

Pending the litigation, George A. Sublett, the original defendant, died, and though further proceedings were had against his representatives, no notice need be taken of them, as the suit took a different direction.

On the 15th of November, 1854, the defendant in error, Franklin B. Sublett, as the administrator of Philip A. Sublett, deceased, filed his petition of intervention, alleging that the whole of the league and labor in question was the property of the estate of said Philip A. Sublett, represented by this intervenor. He filed with this petition a patent from the state for the land, issued to Philip A. Sublett on the 1st of June, 1849. In his original petition the intervenor alleged that his intestate acquired the certificate from Williams by assignment, and employed George A. Sublett to locate it, and to survey and patent the land, agreeing to pay the said George A. Sublett, in money, the usual fees and charges for such services. But on the 16th of May, 1855, the intervenor amended, and alleged that his intestate “employed the said George A. Sublett to locate a number of certificates, and amongst others the said certificate of Willis M. Williams, as alleged in his original petition, for which he agreed to pay him one-half of the aggregate amount of all the lands so located. Petitioner further states, that his said intestate, in the year 1849, paid said George A. Sublett in other lands for the location, etc., of the said Willis M. Williams' certificate.”

The plaintiffs excepted for insufficiency to the petitions of the intervenor, but their exceptions were overruled, and they took their bill of exceptions to the ruling of the court.

On the 11th of October, 1859, the plaintiffs amended, and alleged that their ancestor, Thomas J. Smith, and the said George A. Sublett entered into a written contract concerning the location of land certificates, and among others of the said certificate of Willis M. Williams, by which agreement the said Smith was to locate the certificate, and to receive for his services one-fourth of the land, Sublett to pay the surveying fees, and Smith all other expenses. That said Smith, and his administrator after his death, fully performed the agreement and made the location, but that the patent for the land was taken from the general land office without the knowledge or consent of the said Smith, his administrator, or these plaintiffs, by which means they were prevented from fulfilling so much of the contract as required them to obtain the patent. That the agreement and location were made in good faith, and without knowledge on the part of Smith or his representatives of any claim to the certificate by the intervenors or any one else: that George A. Sublett was wholly insolvent, and the only remedy of the plaintiffs is on the land. They tender the patent fees, and allege that George A. Sublett was lawfully possessed of the certificate by virtue of an agreement with Philip A. Sublett, and was therefore fully empowered to contract for its location; that at the time of the making of the contract by Smith and George A. Sublett, the latter was the agent of Philip A. Sublett, and that the intervenor is bound by the acts of said agent in the premises; that any settlement between George A. and Philip A. Sublett for the location of the certificate was made with a full knowledge of the prior claim of plaintiffs to the locative interest of one-fourth, and was in fraud of the plaintiffs.

On this state of the pleadings, the cause was submitted to the court without a jury, at the fall term, 1859.

The plaintiffs introduced the written contract between their ancestor, Smith, and George A. Sublett, of date January 26, 1847, and proved that Mitchell, the administrator of Smith, was along with the surveyors when the land was surveyed, claiming to be the locator, and seeming to be in control of the business; but whether he claimed as principal or as a substituted agent the witnesses could not say.

The intervenor introduced the patent issued to his intestate, Philip A. Sublett, as the assignee of Willis M. Williams. He also proved the contract between Philip A. and George A. Sublett, substantially as stated in his amended petition of intervention, and that a settlement of their matters respecting these locations was had between the two Subletts in 1849, by which George A. Sublett received compensation in other lands for locating the Williams certificate.

The court adjudged that the plaintiffs take nothing by their suit as against the intervenor, and decreed that the intervenor be quieted in his title and recover his cost. The plaintiffs gave notice of appeal, but brought up the case by writ of error, assigning for error the overruling of their exceptions to the petitions of the intervenor and the judgment rendered by the court.

C. M. Winkler, for the plaintiffs in error. The first alleged error is in reference to the ruling of the court below on the exception of the plaintiffs to the petitions of the intervenors. I insist that the exception should have been sustained, because the petitions, taken together, are not only contradictory, but they show such authority and control of this certificate as made George A. Sublett the agent of Philip A. Sublett, in the matter of its location, and do not negative the idea that payment was made in fraud of the rights of the locator. The...