Smith v. Sublett , 28 Tex. 163 ( 1866 )

Willie, J.

—The court did not err in overruling the objection made to the pleadings of the intervenor, that they were inconsistent and contradictory. A defendant may plead as many inconsistent pleas as he may choose, so they are pertinent and in due order of pleading. (Fowler v. Davenport, 21 Tex., 633.)

We see no reason why the same latitude should not be allowed to an intervenor, who is occupying the position of a defendant, and opposing a claim to a portion of his property asserted by a plaintiff. Nor is it perceived that there was any error committed by the court in rendering judgment for the intervenor under the evidence adduced in the cause. The authority conferred upon George A. Sublett by the intervenor’s intestate was in the nature of a personal trust, and did not imply the right of substitution. The doctrine in relation to substitution is, that the authority is exclusively personal, unless from the express language used, or from the fair presumption growing out of the particular transactions, or of the usage of trade, a broader power was to be conferred upon the agent. (Story on Agency, § 14.)

The contract between Philip and George Sublett does not come within either of these exceptions. Ho express power of substitution was given. It could not be inferred from the nature of the transaction, for this involved a confidence in the locator’s judgment in making advantageous selections of land in the country where the certificate was to be located, in his integrity in faithfully performing his duty to the best interest of his principal, and in his energy in complying at an early time with the requirements of his contract. We cannot presume that these trusts were intended to be transferred to another, and there was no usage or custom of. the country proved as to the right of substitution in agencies for the location of land.

It cannot be said that the intestate was chargeable with notice of all acts done by George A. Sublett in reference to the location of the land. So long as he acted within the scope of his authority the intestate would have been thus chargeable, and liable to third persons for any obligations contracted by him. His authority did not extend to substitution. He was not held out to the public as having competent authority to make contracts for the location of the land. This power was not expressly given. We have seen that it was not implied, nor did it result from the possession of the certificate. This latter was transferred by William, the original grantee, to Philip A. Sublett, but there was no transfer from the latter to the defendant, George A. Sublett. It was not an instrument the title to which passed by delivery, and the presumption was that it belonged to the assignee, and not to the one in whose temporary possession it was found. The mere fact that it was not assigned to George Sublett was sufficient to put Smith on his guard in making a contract for locating it for the benefit of the former. Philip A. Sublett did not clothe his agent with any of the apparent muniments of title to the certificate, and did not assist in any deception which George may have practiced upon Smith. Possession of the certificate by the locator would have necessarily occurred in any contract for the location of lands, and was not, therefore, a circumstance calculated to make Smith believe that George A. Sublett had more control over .its location than was usual and customary.

The whole doctrine in reference to this matter is thus laid down by Mr. Story: “Where the agency is not held out by the principal, by any acts or declarations or implications, to be general in regard to the particular act or business, it must from necessity he construed according to its real nature and extent; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority actually conferred. In such a case there is no ground to contend that the principal ought to be bound by the acts of the agent beyond what he has apparently authorized, because he has not misled the confidence of the other party who has dealt with the agent.” (Story on Agency, § 133.)

From anything that appears in the evidence, Philip Sublett was entirely ignorant, up to his death, of the contract made between George A. Sublett and Thomas J. Smith. A settlement took place in the year 1849 between the two Subletts, in which the land located under the Williams head-right was'included, and in it George Sublett was fully paid off for his services in locating the above head-right. This settlement having taken place in entire ignorance on the part of the intestate of any claim of the locator, Smith, would exonerate him from any personal liability for the acts done by George A. Sublett, in which his agency was not disclosed, and where third parties treated with him as principal. (Story on Agency, § 449.)

The fact that the intervenor’s intestate received the patent to the land located by virtue of the contract between his agent and Smith, under the circumstances of this case, does not amount to a ratification of that contract. The patent seems to have been obtained from the land office by George A. Sublett; if so, there was no presumption that Philip Sublett derived from the records of that office, at the time the patent was taken out, any information as to who was the real locator of the land. Receiving the patent could not be construed into ratification of an act, preceding its issuance, of which the party receiving had no knowledge. The remedy of the plaintiffs in this case, if any they had, was against George Sublett personally, and not against the land of the intervenor’s estate, located under the Williams head-right. (Bodley v. Pool, 1 Monr., 78.)

The judgment is aeeirmed.