Veatch v. Gilmer

• Decision Date: 10 June 1908
• Citation: 111 S.W. 746
• Parties: VEATCH et al. v. GILMER et al.
• Court: Texas Court of Appeals

111 S.W. 746

VEATCH et al. v. GILMER et al.

Court of Civil Appeals of Texas.

June 10, 1908.

Rehearing Denied June 27, 1908.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Action by May Veatch and others against A. Gilmer and others. From a judgment in part for plaintiffs, one of the plaintiffs, John Alfred Veatch, appeals. Affirmed.

W. D. Gordon, for appellant. Geo. E. Holland, for appellees.

JAMES, C. J.

The cause was submitted to the district judge on an agreed case under the statute. The action was brought by the heirs of John A. Veatch. The judgment was against defendants for the title of possession of an undivided interest, amounting to 762 acres, of a part of the W. S. Kennard head-right league. Only one of the plaintiffs has perfected appeal, to wit, John Alfred Veatch, a son of John A. Veatch. His share was an undivided one-sixth of the land sued for, or 233 1/3 acres; but the court awarded plaintiff, on account of his said share, judgment for one half thereof, or 111 acres undivided, thus awarding to defendants the other half thereof.

The appellant appealed for the sole purpose of reviewing the court's ninth conclusion of law, which reads as follows: "I find the power of attorney from John A. Veatch, one of the original heirs, to be in the following language: `I do hereby appoint Samuel H. Veatch, of the county and state aforesaid, my true and lawful attorney, and I do hereby empower him to do any lawful act for and in my name as if I were present.' That this is a universal power of attorney, but its operation will be by law restrained to the particular business in respect to which it is presumed the intention was to delegate the authority, and, from all the facts and circumstances in this case, I conclude that it was the intention of the parties by this instrument to empower S. H. Veatch to sell his interest in his lands in Texas, and the deed from S. H. Veatch under this power conveying all of his interest in the estate of John A. Veatch, deceased, operated as a conveyance thereof, but did not convey his interest in the part thereof inherited from his mother, the deed of his agent purporting to convey only the interest he had as the heir of John A. Veatch, and I conclude that he is entitled to recover an undivided 111 acres." His assignment is that this conclusion is erroneous in its construction of the power of attorney, and his proposition is that, said instrument not having expressly authorized the attorney to convey land, his conveyance was of no effect, and plaintiff should have had judgment for his entire interest.

Defendant not having perfected an appeal, nor any of appellant's coplaintiffs, the cross-assignments of error which have no reference to appellant, or that portion of the judgment appealed from, are not entitled to consideration. There is, however, a cross-assignment in reference to said ninth conclusion, as follows: "The court erred in said ninth conclusion in finding that the deed from S. H. Veatch, attorney in fact, conveyed only the interest of John A. Veatch in the estate of his father and did not include his interest in his mother's estate." The property was community property of his father and mother. From the assignment and cross-assignment it will be seen that the questions raised by these are: (1) Was the power of attorney sufficient to authorize the...