Wright v. Daily

• Decision Date: 01 January 1863
• Citation: 26 Tex. 730
• Parties: JOSEPH A. WRIGHT v. DANIEL DAILY AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 730

JOSEPH A. WRIGHT

v.DANIEL DAILY AND OTHERS.

Supreme Court of Texas.

1863.

An attorney at law has no right, without express authority from his client or principal, to receive anything but money in payment of a debt entrusted to him for collection.

It was error to admit as evidence the declaration of the attorney of a plaintiff in execution, made subsequent to a sale of property thereunder, to prove a payment of the judgment before the sale.

If, by any latitude of construction, a patent could be considered to be color of title in parties claiming under the patentee subsequent to the sale of the land by execution against the patentee, such a title could not be said to be intrinsically fair and honest; and it was error to instruct the jury that three years' adverse possession under such a title constituted a bar.

ERROR from Houston. Tried below before the Hon. C. A. Frazer.

This was an action of trespass to try title to a league of land in Houston county, brought by the appellant against the appellees on the 23d of September, 1857.

The land in controversy was the headright of Edward Tyler. The plaintiff derived his title under a sale of the land by executions against Edward Tyler, at which sale, Charles Chevalier, the plaintiff in execution, was the purchaser. The plaintiff purchased the land at a sale of Chevalier's administrator, admitted to be regular.

The defendant pleaded not guilty, the limitations of three, five and ten years, and that the judgment in favor of Chevalier, under which the land was sold and the plaintiff claimed, had been paid off and satisfied before the sale under the executions, which, consequently, was void and conveyed no title.

Richard Gibson and wife and W. G. Tomlinson intervened and became co-defendants, all claiming to be heirs of Edward Tyler and his wife, both deceased.

At the trial the defendant offered in evidence declarations of Gen. Rusk, who had been attorney for Chevalier. These declarations were made after the sale of the land under the executions, and were to the effect that before the sale the judgment had been paid to him as attorney in negro property. To this evidence the plaintiff objected, but the court overruled the objection, and the plaintiff excepted.

The other facts appear sufficiently in the opinion. Verdict for the defendant; judgment accordingly, from which the plaintiff prosecutes his writ of error.

Geo. F. Moore and W. A. Stewart, for plaintiff in error.

T. J. Word, for defendant in error.

BELL, J.

We are of opinion that there is error in the judgment of the court below for which it must be reversed.

We think the court below erred in permitting the declarations of Gen. Rusk, made...