Hermann v. Reynolds

52 Tex. 391, 1880 Tex. LEXIS 5

• Court: Texas Supreme Court
• Decided: January 18, 1880
• Status: Published

Opinion

Bonner, Associate Justice.

On January 11, 1841, the government of Texas issued to John Onery a warrant for four hundred and eighty acres of laud.

On May 3, 1847, a power of attorney, signed by John G. Onery, "was executed to John Hermann, by which he was authorized to sell for his principal any real estate to which he held title in Texas, including, with other described property, two bounty claims for i'our hundred and eighty acres each, granted him by the government of Texas, “ or any land that may be secured thereby.”

On March 10,1849, John Hermann, purporting to act under this power of attorney, made conveyance to George Hermann, the plaintiff in error, besides certain lands therein described, of two bounty claims for lour hundred and eighty acres each, granted to John G. Onery by the government of Texas.

On October 11, 1848, subsequent to the execution of this power of attorney, and previous to the above conveyance thereunder to George Hermann, a patent issued to the land in controversy to John • Onery by virtue of warrant number 9,727, of date January 11, 1841.

George Hermann, claiming this land under the above conveyance, on August 22, 1878, instituted this suit of trespass to try title against George Reynolds, defendant in error, who was in possession and claimed the same by deed from Margaret Menlv, of date November 18, 1876.

There was no privity shown between Margaret Menly or defendant in error and John Onery.

On the trial below, judgment was rendered in favor of defendant Reynolds.

The only question presented for our consideration is, whether plaintiff, George Hermann, shows in himself a sufficient title to recover against defendant Reynolds.

It has been repeatedly decided by this court that a right to land guaranteed by the Constitution or laws of Texas, though neither real nor personal property in esse, was, nevertheless, such character of right or interest as to be the subject-matter of contract. (Johnson v. Newman, 43 Tex., 639, and authorities cited.) It has also been decided that a sale of the certificate or warrant for land would convey the equitable title to . the land which might subsequently be located by virtue thereof. (Keyes v.Railroad Co., 50 Tex., 174.)

We are of opinion that, under the terms of the power of attorney in this ' case, authorizing John Hermann to sell the bounty claims, “ or any land that may be secured thereby,” as between bis vendee, the plaintiff, George Hermann, and Onery, the principal in the power, who is not heard to complain as to the fairness of the sale, or to object thereto for want of authority, the conveyance passed such equitable title at least to the plaintiff as would authorize this suit against defendant Reynolds. (Paschal’s Dig., art. 5303.)

The defendant does not, as in Johnson v. Newman, 43 Tex., 628, claim by purchase of the legal title from Onery, the grantee of the warrant, without notice of the prior equity of plaintiff, but claims under deed from a stranger not in privity with Onery.

The prvma-faeie case made in the record by the plaintiff, that John Onery and John G. Onery were the same person, was not rebutted by the defendant.

We are of opinion that, under the evidence, the court erred in rendering judgment for the defendant; for which the same is reversed and the cause remanded.

[Opinion delivered January 18, 1880.]

Reversed and remanded.