Green v. Hugo , 81 Tex. 452 ( 1891 )

This was an action of trespass to try title, brought by appellant to recover of appellee three tracts of land patented to the Leona Irrigation and Manufacturing Canal Company, a private corporation. The plaintiff claimed title both by a chain of conveyances from the original grantee and by the statutes of limitation of three years. In a supplemental petition she alleged that she claimed under a certain instrument purporting to be a deed executed by one C.J. Jones, as agent of the corporation, to Hannah J. Jones, and averred that if it was not good as a deed it was a valid contract for the conveyance of the land, and prayed for a specific performance.

The plaintiff's chain of title as shown by the evidence disclosed:

1. A resolution of the board of directors of the Leona Irrigation and Manufacturing Canal Company, of which the following is a copy:

"May 8, 1877. That the directors of this company, to-wit, W.H. Young, Wm. Heuermann, and C.J. Jones, and Hugh F. Young, agent of said company, be and each of them are hereby empowered and authorized to make contracts of sale of the land of the company, and the president is hereby authorized and empowered to make, execute, and deliver in the name of the company a bond for title to the purchaser or purchasers thereof, upon he or they paying one-half cash and executing his or their note for the balance of the purchase money, said bond to be conditioned that a good and sufficient warranty deed shall be made and delivered on payment of said note."

2. A resolution of the same board, dated September 11, 1887, withdrawing the power granted by the former resolution to Heuermann, W.H. Young, and H.F. Young to make contracts of sale of any land of the corporation, which Jones was attempting to sell. This resolution did not enlarge Jones' powers.

3. A purported conveyance from the corporation, signed by C.J. Jones as agent and attorney in fact, to Hannah J. Jones of 11, 520 acres of land, including those in dispute, for the consideration of $11,777.77, recited to have been paid by the grantee.

4. A deed from C.J. Jones and Hannah J. Jones to Mary Long conveying the land in controversy. This deed was acknowledged by the grantors as husband and wife, and the certificate is in form sufficient to convey the separate property of a married woman.

5. A deed, dated April 23, 1888, from Mary Long to Shadrach Green conveying the land in controversy. The plaintiff proved that Shadrach Green was dead and that she was his surviving wife and sole heir.

The first question for determination is, Did the purported deed executed by Jones, as agent and attorney in fact, to his wife convey any right and title to her? It is clear that the resolution of May 8, 1877, conferred no authority on Jones to convey any land of the company. It may therefore be admitted for the purposes of the argument that the corporation could empowered him or any other agent to convey its lands, although our statute in relation to private corporations as well as the by-laws of the company introduced in evidence conferred that power upon its president alone. The resolution authorized Jones only to make a contract of sale, and by clear implication withheld from him authority either to receive the consideration or to make bond for title. It is apparent, therefore, the pretended deed executed by him to his wife did not take effect as a conveyance, and we are of opinion that it can not be treated as a contract to convey. There was no proof that any consideration was paid for the land. The testimony of the defendant tended to show that none in fact was paid. The treasurer testified that no money was ever received by him for the land, and both Jones and wife were shown to be insolvent at the date of the attempted conveyance. Not being authorized to receive the consideration, the recital in the pretended deed of the payment of the purchase money was about a matter beyond the scope of his authority, and is not evidence against the company or any one holding under it.

But even if Jones had had the power to sell and convey the company's lands, he was not authorized to convey them to his wife. If the intention had been to make them her separate property, the income would have belonged to the community, and he therefore had a direct personal interest in the transaction. An agent can not either directly or indirectly sell to himself. The pretended conveyance stands therefore as if it had been executed by one having no authority whatever.

It follows from the conclusion just announced that the plaintiff can not successfully maintain that her husband was a bona fide purchaser without notice. One who claims under a contract executed by an agent is bound to know the extent of the agent's authority, unless he has been held out by his principal as having powers which have not in fact been conferred. Fitzhugh v. Franco-Texan Land Co., ante, 306. Besides, the certificate of acknowledgment to the deed from C.J. Jones and Hannah Jones to Mary Long showed that they were husband and wife, and we think it was sufficient to give notice of the fact to all persons claiming under that instrument. If Green knew that Hannah Jones was the wife of C.J. Jones, he is affected with notice that Jones could not as agent convey his principal's property to her. It is clear therefore that neither the plaintiff's husband nor any one under whom he claimed was an innocent purchaser.

We are also of opinion that the plaintiff failed to make out title under the statutes of limitation of three years. A pretended conveyance or contract of sale by one who assumes to act as agent of another, but who is in fact without authority, is void, and does not constitute such color of title as will confer ownership or preclude a recovery under the statutes of limitation of three years. Thompson v. Cragg, 24 Tex. 582; Veramendi v. Hutchins, 48 Tex. 541; Leage v. Rogan, 59 Tex. 427 [59 Tex. 427].

Our conclusions upon the questions discussed dispose of the appeal. The plaintiff wholly failed to show title, and the facts proved admitted of no proper disposition of the case except a judgment for the defendant. A discussion of the numerous assignments of error is unnecessary. It is especially useless to consider the questions raised upon the defendant's title. The plaintiff could recover only upon the strength of her own, and not upon the weakness of her adversary's claim.

There is no error in the judgment, and it is affirmed.

Affirmed.

Delivered June 19, 1891.