Cook v. Lindsay

57 Tex. 67, 1882 Tex. LEXIS 95

• Court: Texas Supreme Court
• Decided: April 25, 1882
• Docket: Case No. 4479
• Status: Published

Opinion

Gould, Chief Justice.

The power of attorney from the colonist Robertson to Fuller bears date October 7,1835, and on its face purports to have been executed on that day. Although not executed with the formalities required to make it an authentic instrument, it did not, for that reason, fail to take effect on the day of its date. The certificate appended to it shows that on October 12th, Fuller, acting apparently in the absence of Robertson, procured the instrument to be filed in the office for the record of public instruments; but this certificate also recites the delivery of the power of attorney on October 7th. It is clear that the power of attorney must be regarded as completely executed on October 7, 1835. This instrument authorizes Fuller “ to sell, convey and confirm to Bennett Blake, or any person he may choose, and a good warranty title to make to one league and labor of land, as soon as a title to the same is procured by George W. Smythe, commissioner, in my name,” gives the power to substitute other attorneys, renounces all laws that may affect the validity of the power of attorney, “ acknowledging and declaring it at the same time to be irrevocable.” From these recitals it is apparent that the effect of this instrument, if valid, was to place the league and labor of land which Robertson expected to receive as a colonist beyond his own control, and whilst the consideration is not recited, it is obvious that the transaction was something more than the'appointment of an attorney, but was a contract to sell and convey to Blake, the conveyance to be made to whomsoever he might choose. The clause making the instrument irrevocable also indicates the existence of a consideration and the other elements of a contract. The case of McElrea v. Hayter, 2 Porter (Ala.), 148, is one in regard to a very similar instrument, made under similar circumstances, and the court say that “ the inference is irresistible that a contract then existed ” for the transfer of the land. See, also, Martin v. Parker, 26 Tex., 260; and Ryan v, Jackson, 11 Tex., 401.

The instrument, called a power of attorney, in fact shows a contract by a colonist in October, 1835, to sell the land to be granted to him as a colonist, before the issuance of title. Such a contract. was in violation of the law then in force, and was therefore invalid. Robbins’ Heirs v. Robbins’ Heirs, 3 Tex., 476; Burleson v. Burleson, 11 Tex., 8; Atkinson v. Ball, 18 Tex., 478; Holmes v. Johns, Tyler Term, 1881.

The deed from Fuller, as attorney for Robertson, to Armory, being unsúpported by any valid power of attorney, was rightly excluded by the court.

• The record shows no evidence, or offer to introduce evidence, raising any question of acquiescence or ratification, or of the presumption of a valid power of attorney. The judgment is affirmed.

Affirmed.

[Opinion delivered April 25, 1882.]