Morton v. Morris (27 Tex. Civ. App. 262, 1901)

NEILL, Associate Justice.

This suit was brought by the appellee, Nannie Morris, against the appellant, W. T. Morton, to cancel a certain alleged pretended deed purported to have been made by appellee, by her attorney in fact under a power therein given by her to him. The grounds upon which the cancellation was prayed for are (1) that the deed, upon its face shows, that the agent exceeded the scope of the authority conferred on him by the power of attorney; (2) that the deed was fraudulently made in pursuance of a conspiracy between her agent and the appellant to deprive her of her property; (3) that the agent at the time he made the contract of sale and executed the deed was drunk, and incapacitated by reason thereof to make the contract for her; and (4) that the consideration agreed upon was inadequate.

The appellant answered (1) by general and special exceptions; (2) by general denial; (3) a plea of res adjudicata; (4) that after the power of attorney was executed, and before the sale was made, the appellee had enlarged the authority given therein by authorizing her agent to sell as quickly as possible, and for as much or as little as he could get, upon any terms, credit or conditions, or form of payment; (5) that when the sale was made there was an attachment lien upon the property, and that it is the general usage and custom of the country, in making real estate conveyances by attorneys in fact or otherwise, to protect the purchaser against any liens that may be outstanding against the property, and sell on such credits, and that her agent simply followed the general usage and custom in this respect; (6) that if in any respect her agent exceeded his authority in the conditions of said sale, that the deed should not be canceled on that account, for this, that appellee is ready to pay the balance of the purchase money at any reasonable time to be fixed by the court as long as he is protected against said attachment lién on the land.

Upon the trial of the cause, after the introduction in evidence of the deed and powers of attorney, the court held that the deed, in connection with the powers of attorney, showed upon its face that appellee’s attorney in fact had exceeded the authority conferred upon him, and that the deed was therefore void. Then, after hearing evidence as to the rental value of the land during the time it was occupied by appellant under the deed, the jury were peremptorily instructed to return a verdict in favor of the appellee for the cancellation of. the deed and for the rental value of the property.

Conclusions of Fact.—Upon the 1st day of November, 1898, the appellee, Nannie Morris, by an instrument in writing of that date, appointed and constituted W. A. Brooks her attorney in fact, thereby granting and conferring upon him authority and powers as follows: “For me and in my name, place, and stead, to enter into and upon and take possession of all such messuages, land, tenements, hereditaments, and real estate whatever in the State of Texas, whereof I am or may be in any way entitled or interested and to grant, bargain, and sell the same, or any part or parcel thereof, for such sum or price and on such terms as to him shall seem meet, and for me and in my name to make, execute, acknowledge, and deliver good and sufficient deeds and conveyances for the same, either with or without covenants and warranty; and until the sale thereof, to let and demise, lease, or rent the said real estate for the best rent that can be procured for the same; and to ask, demand, recover, and receive all sums of money which shall become due and owing to me by means of such bargain, sale, or lease and rent of said real estate, and to receipt for the same; and to take all lawful ways and means for the recovery thereof, to compound and agree for the same, and to execute and deliver sufficient acquittances and discharges therefor ; and I do further empower my said attorney in fact to employ counsel and authorize him to bring a suit in any court having jurisdiction for a partition of any or all of property situated in the State of Texas, which is now owned by myself and the heirs of my daughter Cora E. Morton, late of Bexar County, Texas, now deceased, and in the event of a sale of said last named property by order of court, to receive and receipt for my part of the proceeds of such sale, with power of substitution and revocation, giving and granting unto my said attorney full power and authority to collect and receipt for or to sue for and collect any other moneys that may now be, or which may become due me from any and all persons whomsoever in the State of Texas, and to attend to any and all business which I may have in the State of Texas, and perform all and every act and thing whatsoever necessary- and requisite to be done and performed in and about the premises as fully, to all intents and purposes, as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all .that my said attorney or his substitute shall lawfully do or cause to be done by virtue hereof.” This instrument, after having been duly acknowledged, was on the 23d day of November, 1898, duly recorded in the office of the county clerk of Atascosa County, Texas.

On the 18th day of November, 1898, W. A. Brooks by an instrument of that date, after reciting the authority and power conferred upon him by the foregoing instrument, nominated and appointed J. M. Eckford as his substitute attorney in fact, to do and perform each and every act and thing which by the power of attorney from Nannie Morris to him, he (Brooks) was authorized to do and perform in respect to the moneys and real and personal property and other business matters in said power of attorney named. This instrument, after being acknowledged, was duly recorded on November 26, 1898.

On the 3d day of January, 1899, J. M. Eckford as attorney in fact, by virtue of the last stated instrument, for Nannie Morris, executed a warranty deed to the appellant, W. T. Morton, purporting to convey to him 1510 acres of land (which is the property in controversy and is specifically described in the deed) belonging to the appellee. The deed recites a consideration of $1510, blit the manner and conditions of its payment are recited in the deed as follows:

“It is agreed that the sum of two hundred dollars has been paid in cash, the receipt of which is hereby acknowledged and a note has been given for the balance of $1310, bearing 6 per cent interest; and it is agreed that the said note is nonnegotiable and shall not become due until one year after a certain lien upon said property created by reason of a writ of attachment issued out of Atascosa District Court in case of Morton v. Nannie Morris has been removed therefrom. Should the said suit end adversely to said Nannie Morris, the said Morton shall use the amount due on said note to liquidate the amount due on said lien by reason of said writ of attachment, and any judgment that might be rendered therein, and any balance remaining to be paid to Nannie Morris; or should said lien be removed, and no judgment be rendered therefor by payment or settlement of same by said Nannie Morris or otherwise, then the whole amount of said note shall be paid to said Nannie Morris or her agent, J. M. Eckford, within one year after the removal of such lien.” This deed, which is the one sought to be canceled, after being acknowledged by Eckford, was duly recorded in Atascosa County on January 6, 1899.

It is shown by appellant’s own pleadings that he was the plaintiff in the case of Morton v. Nannie Morris referred to in the deed, and it is shown by the undisputed testimony that the attachment was issued and levied at his instance after the powers of attorney were executed. It is undisputed that the appellee was never informed by Eckford of this sale to the appellant; that she never received any of the purchase money or the note given for the land, and that she never in any way confirmed or ratified the sale, but as soon as she was informed of it, repudiated the whole transaction.

Immediately after the execution of the deed the appellant went into possession of the property, and the evidence shows that its rental value was $250 per annum for the years 1899 and 1900, and up to the date of judgment, which was March 20, 1901, during all of which time appellant was in possession of said property.

Conclusions of Lam.—1. We will say in limine that it is generally held outside of this State that where the defect appears upon the face of an instrument, and a resort to extrinsic evidence is unnecessary to show its invalidity, the jurisdiction of a court of equity can not be invoked to cancel the instrument. 3 Pom. Eq., sec. 1399. But, commenting upon this general rule, in the same section the author says: “While this doctrine may be settled by the weight of authority, I must express the opinion that it often operates to produce a denial of justice. It leads to a strange scene, almost daily in the courts,—of defendants urging that the instruments under which they claim are void, and therefore they ought to be permitted to stand unmolested, and of judges deciding that courts can not interfere, because the deed or other instrument is void, while, from a business point of view, every intelligent person knows that the instrument is a very serious injury to plaintiff’s title, greatly depreciating its market value, and the judge himself, who repeats the rule, would neither buy the property while thus affected nor loan a dollar upon its security. This doctrine is, in truth, based upon mere verbal logic, rather upon considerations of justice and expediency.” In Day Land and Cattle Company v. State, 68 Texas, 527, the Supreme Court, after quoting with approval the foregoing criticism, held that, though an instrument may be void upon its face, a court of equity not only has the power to declare its nullity, but should exercise that power and cancel it when a defendant asserts a right under it. Regarding this as settling the question of jurisdiction, we will pass to the consideration of the main question in the case.

2. Does the instrument sought to be canceled show upon its face that it is in excess of and unauthorized by the power conferred by the grantor in the letter of attorney given to her agent? It is, elementary that a power of attorney must be strictly construed according to its plain import. Frost v. Cattle Co., 81 Texas, 505; Skaggs v. Murchison, 63 Texas, 348; Wynne v. Park, 30 S. W. Rep., 52. When an agency is created by a written instrument, the nature and extent of the authority given by it should be ascertained from the instrument itself, and can not be enlarged by paroi evidence of the usage of other agents in like cases, as that would be to contradict or vary the terms of the written instrument. Reese v. Medlock, 27 Texas, 120; Railway v. Poindexter, 70 Texas, 107; McAlpine v. Cassidy, 17 Texas, 449; Skaggs v. Murchison, supra. A power to sell land does not of itself imply an authority to sell on a credit. The presumption is that the sale is to be for cash. Pars, on Cont., 58; 2 Kent Com., 622; Story on Ag., sec. 77; Am. and Eng. Enc. of Law, 360. But when an agent is authorized to sell “on such terms as to him shall seem meet” he may grant a reasonable time. Mech. on Ag., sec. 325; Dyer v. Duffy, 39 W. Va., 148, 24 Law. Rep. Ann., 339, 19 S. E. Rep., 540; Brown v. Land Co., 42 Cal., 257; Carson v. Smith, 77 Am. Dec., 539, 5 Minn., 78.

Nor will a power to sell and convey land imply an authority to barter or exchange it for other property, or to give it away, or to take pay in merchandise or in settlement of claims or debts. Frost v. Cattle Co., 81 Texas, 509; Reese v. Medlock, supra; Rhine v. Blake, 59 Texas, 240; Trudo v. Anderson (Mich.), 81 Am. Dec., 795; Mann, Exrs. v. Robinson, 19 W. Va., 49, 42 Am. Rep., 771; Woodward v. Jewell, 140 U. S., 253; Morrill v. Cone, 22 How., 75; Kleinhaans v. Jones, 68 Fed. Rep., 746, 37 U. S. App., 185; Hampton v. Moorehead, 62 Iowa, 91.

In Frost v. Cattle Company, supra, the powers granted to the agent were more extensive and of much broader scope than those conferred by the power of attorney under consideration in this case. It was there held, after considering some of the authorities we have cited, that a power to sell and convey does not include the power to convey in discharge of a debt or claim. Leaving out of view, as we mus.t, in determining the naked question as to whether the appellee’s agent went beyond the scope of his authority, the facts that the appellant was the party plaintiff in the case recited in the deed sought to be canceled; that he procured the issuance and levy of the attachment on the property in controversy upon a demand founded upon an alleged tort, which from its nature would furnish no foundation for the writ (this, too, after the power of attorney had been executed); and that appellee was wholly ignorant of the pretended lien asserted in the deed when, and long after it was executed,—facts undisputed and fully established by the evidence,— we will now, in the light of the well-established principles stated, consider the question.

As is seen from our conclusions of fact, the note of $1310 given for the purchase money is nonnegotiable, and can not become due until one year after the recited lien has been removed from the property. The power of attorney is silent as to any suit against its maker, or any lien upon her property. Were it not for the fact that it empowers the agent “to sell on such terms as to him shall seem meet,” there could be no implication that authority was given to sell on a credit, but the presumption would be that the sale should be for cash. As it is he was authorized to sell on reasonable credit. While what is a reasonable credit is ordinarily a question of fact to be determined by the jury, yet that is referable to a definite length of time which must elapse before the purchase money according to the terms of sale becomes due, not to the contingency, or to the time of the happening of an event which is indefinite, or over which the grantor has no control. No authority was conferred upon the agent to determine that a lien existed upon the property, and make the time when the purchase money should become due contingent upon its removal or discharge. True, that is certain which can be made certain. And it may be said that by discharging the supposed lien the appellee could, under the terms of the deed, have fixed definitely the time of the note’s maturity. But no indebtedness had been established .against the appellee, or acknowledged by her. Its existence was a matter for judicial determination, and, if not so determined, the supposed attachment lien would fall to the ground. Can it be said, then, that the agent was authorized to make a sale on such terms as would require his principal to discharge a lien by the payment of a disputed claim, in order to make certain the time when the purchase money for her property would become due? To assert such a proposition is to refute it. 'The only way by which the time when the note would become due could be known would be to await the termination of the suit in which the attachment was levied. One must be imbued with the spirit of prophecy to foretell when a lawsuit will end. It may drag its weary length along until starvation stares the hopeless creditor in'the face while the •debtor grows fat in the possession of her property. Is twelve months after the uncertain time of ,the ending of a lawsuit a reasonable credit to be given by an agent for the payment of the purchase money due for "the sale of his principal’s property? As a matter of law, we think not.

But the uncertainty and indefiniteness of the time of payment is not "the only matter in which appellee’s agent went beyond the scope of his authority. It depends upon how the lawsuit mentioned in the deed "terminates whether she is ever paid anything or not. “Should it end adversely to her, the appellant shall use the amount due on said note to liquidate the amount due on said lien by reason of said writ of attachment, and any judgment that may be rendered therein;” thus, by the