Threadgill v. Butler

• Decision Date: 22 January 1884
• Docket Number: Case No. 1633.
• Citation: 60 Tex. 599
• Parties: W. H. THREADGILL ET AL. v. EMILINE L. BUTLER.
• Court: Texas Supreme Court

60 Tex. 599

W. H. THREADGILL ET AL.

v.EMILINE L. BUTLER.

Case No. 1633.

Supreme Court of Texas.

Jan. 22, 1884.

ERROR from McLennan. Tried below before the Hon. L. C. Alexander.

On August 31, 1878, Butler brought this suit of trespass to try title against Threadgill and others to recover the land described in the petition. Subsequently by amended petition the unknown heirs of Thomas McDonough were made parties, etc.

The case as made by the pleadings was in substance that the land in controversy was patented to Thomas McDonough as assignee of William Russell, September 9, 1847. March 17, 1848, McDonough sold the same to L. J. Latham for $100, received the purchase money, and executed, acknowledged and delivered to Latham a deed complete in every respect except there was a blank left in which the name of the grantee was to be inserted, and at the same time he authorized Latham to fill the blank with his own or the name of any other person to whom he might sell the land, and also delivered the patent for the land to Latham together with the deed. In 1856 Latham sold the land to Butler and conveyed the same by warranty deed, and at the same time delivered to him the patent; also the deed from McDonough to Latham. The blank was not noticed or thought of at that time. In 1878 Butler noticed the blank and called Latham's attention to it, and he filled the blank by inserting his own name.

The court appointed an attorney to represent the unknown heirs of McDonough, and he asserted the invalidity on account of the blank, etc. The other defendants answered by plea of not guilty and also asserted the invalidity of the deed.

The cause was tried by the court and judgment rendered for Butler for the land, etc., from which this appeal was taken.

Plaintiffs in error rely upon two errors to reverse the judgment: 1st. That evidence failed to show title in Butler. 2d. It was not shown that McDonough was dead.

Anderson & Flint, for plaintiff in error, cited: Ragsdale v. Robinson, 48 Tex., 379;McCown v. Wheeler, 20 Tex., 372;Viser v. Rice, 33 Tex., 156;Drury v. Foster, 2 Wall., 24-33.

E. H. Graham, for defendant in error, cited: McCown v. Wheeler, 20 Tex., 373;Viser v. Rice, 33 Tex., 156;Ragsdale v. Robinson, 48 Tex., 379;Hollis v. Dashiell, 52 Tex., 187;Drury v. Foster, 2 Wall., 24-33; Van Etta v. Evenson, 9 Am., 488; Swartz v. Ballou, 29 Am., 475.

WATTS, J. COM. APP.

Formerly, when seals were essential, it was generally held that blanks in deeds, bonds and other specialties could not be supplied, and the instrument perfected by any one acting under parol authority. But more recently, since seals have been generally abolished, and but little importance attached to their use, undoubtedly the weight of authority sustains the proposition that any one acting under parol authority can fill blanks, and perfect such instruments in accordance with the intention of the parties.

In the case of Inhabitants of South Berwick v. Huntress, 53 Me., 90, the court said: “It seems to be now well settled, that where a party executes a deed or other instrument, and delivers the same to another in an imperfect state, and gives authority to that person to fill up the blanks and thus perfect the instrument, and he does so, its validity cannot be controverted. This authority may be by parol. It may be implied from the facts proved, when those facts fairly considered justify the inference. When the authority is established, either by evidence of express authority or by implication, the power will extend as far as such express or implied authority is given.” See, also, Wiley v. Moore, 17 S. & R. (Penn.), 439; McDonald & Mills v. Eggleston, Baker & Co., 26 Vt., 160;Van Etta v. Evenson, 28 Wis., 33; Swartz v. Ballou, 47 Iowa, 188; Drury v. Foster, 2 Wall., 33.

In Drury v. Foster the court said, in substance, that if a person competent to convey real estate, generally, sign and acknowledge a deed in blank, and deliver the same to an agent, with an express or implied authority to fill up the blank and perfect the conveyance, its validity could not be well...