Gaines, Associate Justice.
The plaintiffs in error, who were proved to be the heirs of Robert N. Martin, brought this suit in the court below to recover of defendants in error the tract of land described in the petition. Both parties claimed under John Robinson and Agnes Bailie as the common source of title.
The plaintiffs introduced in evidence a power of attorney from John Robinson, Agnes Bailie, and her husband John Bailie, to James Bailie, which authorized him to sell and convey the land in controversy as well as other lands. This instrument was executed April 20, 1857, and was duly acknowledged. The plaintiffs also introduced in evidence a deed from John Robinson, Agnes Bailie, and her husband John Bailie, executed by James Bailie by virtue of the power above mentioned, which conveyed several tracts of land, including the land in controversy, to [595]*595Robert N. Martin. Neither of these instruments were recorded in Bee •County until the rights of defendants had attached.
The record shows that the constituents in the power above named had previously executed a power of attorney in 1855, which authorized John and James Bailie or either of them to sell the same lands. To this power of attorney there was no proper certificate of acknowledgment to bind Agnes Bailie, who appeared upon its face to be a married woman.
The defendants introduced in evidence a deed executed in the names of John Robinson, Agnes Bailie, and her husband John Bailie, by James Bailie as their attorney in fact, to one Bushick, which purported to convey to Bushick certain lands in Texas, and which included in the description the land in controversy. This conveyance referred to the power of attorney executed in 1855, and purported by its recitals to have been executed by virtue of the power therein given.
To support the deed to Bushick the defendants offered in evidence the power of attorney executed in 1857, to which plaintiffs objected. The instrument was however admitted over their objection. . The ruling of the court upon this question is the ground of the first assignment of error. The question is not an open one in this court. In Hough v. Hill, 47 Texas, 148, the precise point was before this court, and it was there held that a deed made by an attorney will pass the title if he in fact have the power to sell, although it may purport by its recitals to be executed by virtue of a power contained in another instrument which may be invalid.
The defendants introduced a chain of conveyances of land in controversy from Bushick down to themselves, and testified that they bought the property without notice of any adverse claim and paid a valuable con-' sideration therefor. The plaintiffs in rebuttal introduced James Bailie, the attorney who executed the deed to Bushick. This witness testified that Bushick applied to him to purchase 300 acres of the land, representing that there was that quantity which had not been previously conveyed; that he told Bushick that he thought that he was mistaken; that Bushick insisted, and he consented to convey him the 300 acres for $300; that a deed was drawn in accordance with that agreement/ which he read; that he retired from the room, and when he returned Bushick presented a deed to him, which he took to be the same he had read, and which he signed and acknowledged without reading. The witness also stated that he never received the $300 actually agreed to be paid. The deed signed and acknowledged by him purports to be for the consideration of $1000, and purports to convey all the lands in Texas inherited by the grantors from certain brothers named, and refers to the record of a decree of partition for description. The decree of partition shows that the several tracts set apart to the grantors embraced some 20,000 acres.
There was a plea of non est factum interposed as to the deed to Bush[596]*596ick. The court charged the jury in effect that if they found that this; deed was forged to find for plaintiffs, unless they found for defendants-upon their pleas of the statute of limitations; but that if they did not-find the deed was forged they should find for defendants.
Let us first determine what is the law of the case. The plaintiffs, having pleaded non est factum to the deed which purported to have been made to Bushick, and no evidence having been offered to establish it. except that of James Bailie, the attorney in fact who purported to have-executed it, it was a question for the jury whether the deed offered by defendants was or was not the substituted paper which he testified that, he signed and acknowledged.
We think his testimony warranted the jury in concluding that it was the-instrument so executed. The court having submitted the question of' forgery to them, and they having found for defendants, we think it must-be conclusively presumed that it was the same instrument. But the-facts testified to by Bailie are also uncontroverted, and we are therefore of opinion that it must be determined that the deed actually executed by him was not the deed he had read and had agreed to execute, but that-his signature and acknowledgment were obtained by fraud in substituting an instrument he never agreed to sign. We do not understand that-this made the grantee who perpetrated the fraud guilty of forgery, but. we do understand that as between the parties to the transaction the signing and acknowledgment of the writing did not make a contract of conveyance.
The attorney of the grantors never having assented to the contract set-forth in the alleged conveyance; signed by him through mistake on his-part and fraud on part of his grantee, the minds of the parties did not-meet and no agreement was consummated. Stacy v. Ross, 27 Texas, 4; Von Volkenberg v. Rouk, 12 Johns, 337; Bish. on Cont., 2d ed., secs. 345-6 et seq.; Pollock’s Prin. Cont., 401 et seq. A purported conveyance the execution of which is obtained by any fraudulent device by which the grantor is misled as to the contents is void. But when the signer has-not exercised due care, and through his gross negligence has signed a. paper by which- third parties may be misled to their injury, a different-principle will apply. Where a negotiable instrument has been so signed and has passed into the hands of innocent purchasers the party so signing, whether as maker or endorser, is generally held estopped to deny the validity of his signature. It has been so held by this court. Davis v. Gray, 61 Texas, 506, and cases cited. We think also where the owner of real property negligently clothes another with the apparent title to it, although the execution of the instrument which purports to convey the-title may be obtained by fraud, and third parties being misled thereby innocently purchase and pay value for the property, he should be held [597]*597estopped to deny the validity of the conveyance. This principle was announced by this court in the case of Steffian v. Bank, 69 Texas, 513, in which it is held that one who signs and acknowledges a conveyance to be delivered only upon condition may be estopped to set up the non-delivery by negligently permitting it to pass into the hands of the grantee. See also Hussey v. Moser, 70 Texas, 42; Garagan v. Bryant, 83 Ill., 376.
Bailie’s testimony shows that after he had read the deed Bushick had prepared, Bushick told him he wished to add something to it, and that he retired, was then gone an hour, and upon his return signed the deed presented to him without further examination.
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Gaines, Associate Justice.
The plaintiffs in error, who were proved to be the heirs of Robert N. Martin, brought this suit in the court below to recover of defendants in error the tract of land described in the petition. Both parties claimed under John Robinson and Agnes Bailie as the common source of title.
The plaintiffs introduced in evidence a power of attorney from John Robinson, Agnes Bailie, and her husband John Bailie, to James Bailie, which authorized him to sell and convey the land in controversy as well as other lands. This instrument was executed April 20, 1857, and was duly acknowledged. The plaintiffs also introduced in evidence a deed from John Robinson, Agnes Bailie, and her husband John Bailie, executed by James Bailie by virtue of the power above mentioned, which conveyed several tracts of land, including the land in controversy, to [595]*595Robert N. Martin. Neither of these instruments were recorded in Bee •County until the rights of defendants had attached.
The record shows that the constituents in the power above named had previously executed a power of attorney in 1855, which authorized John and James Bailie or either of them to sell the same lands. To this power of attorney there was no proper certificate of acknowledgment to bind Agnes Bailie, who appeared upon its face to be a married woman.
The defendants introduced in evidence a deed executed in the names of John Robinson, Agnes Bailie, and her husband John Bailie, by James Bailie as their attorney in fact, to one Bushick, which purported to convey to Bushick certain lands in Texas, and which included in the description the land in controversy. This conveyance referred to the power of attorney executed in 1855, and purported by its recitals to have been executed by virtue of the power therein given.
To support the deed to Bushick the defendants offered in evidence the power of attorney executed in 1857, to which plaintiffs objected. The instrument was however admitted over their objection. . The ruling of the court upon this question is the ground of the first assignment of error. The question is not an open one in this court. In Hough v. Hill, 47 Texas, 148, the precise point was before this court, and it was there held that a deed made by an attorney will pass the title if he in fact have the power to sell, although it may purport by its recitals to be executed by virtue of a power contained in another instrument which may be invalid.
The defendants introduced a chain of conveyances of land in controversy from Bushick down to themselves, and testified that they bought the property without notice of any adverse claim and paid a valuable con-' sideration therefor. The plaintiffs in rebuttal introduced James Bailie, the attorney who executed the deed to Bushick. This witness testified that Bushick applied to him to purchase 300 acres of the land, representing that there was that quantity which had not been previously conveyed; that he told Bushick that he thought that he was mistaken; that Bushick insisted, and he consented to convey him the 300 acres for $300; that a deed was drawn in accordance with that agreement/ which he read; that he retired from the room, and when he returned Bushick presented a deed to him, which he took to be the same he had read, and which he signed and acknowledged without reading. The witness also stated that he never received the $300 actually agreed to be paid. The deed signed and acknowledged by him purports to be for the consideration of $1000, and purports to convey all the lands in Texas inherited by the grantors from certain brothers named, and refers to the record of a decree of partition for description. The decree of partition shows that the several tracts set apart to the grantors embraced some 20,000 acres.
There was a plea of non est factum interposed as to the deed to Bush[596]*596ick. The court charged the jury in effect that if they found that this; deed was forged to find for plaintiffs, unless they found for defendants-upon their pleas of the statute of limitations; but that if they did not-find the deed was forged they should find for defendants.
Let us first determine what is the law of the case. The plaintiffs, having pleaded non est factum to the deed which purported to have been made to Bushick, and no evidence having been offered to establish it. except that of James Bailie, the attorney in fact who purported to have-executed it, it was a question for the jury whether the deed offered by defendants was or was not the substituted paper which he testified that, he signed and acknowledged.
We think his testimony warranted the jury in concluding that it was the-instrument so executed. The court having submitted the question of' forgery to them, and they having found for defendants, we think it must-be conclusively presumed that it was the same instrument. But the-facts testified to by Bailie are also uncontroverted, and we are therefore of opinion that it must be determined that the deed actually executed by him was not the deed he had read and had agreed to execute, but that-his signature and acknowledgment were obtained by fraud in substituting an instrument he never agreed to sign. We do not understand that-this made the grantee who perpetrated the fraud guilty of forgery, but. we do understand that as between the parties to the transaction the signing and acknowledgment of the writing did not make a contract of conveyance.
The attorney of the grantors never having assented to the contract set-forth in the alleged conveyance; signed by him through mistake on his-part and fraud on part of his grantee, the minds of the parties did not-meet and no agreement was consummated. Stacy v. Ross, 27 Texas, 4; Von Volkenberg v. Rouk, 12 Johns, 337; Bish. on Cont., 2d ed., secs. 345-6 et seq.; Pollock’s Prin. Cont., 401 et seq. A purported conveyance the execution of which is obtained by any fraudulent device by which the grantor is misled as to the contents is void. But when the signer has-not exercised due care, and through his gross negligence has signed a. paper by which- third parties may be misled to their injury, a different-principle will apply. Where a negotiable instrument has been so signed and has passed into the hands of innocent purchasers the party so signing, whether as maker or endorser, is generally held estopped to deny the validity of his signature. It has been so held by this court. Davis v. Gray, 61 Texas, 506, and cases cited. We think also where the owner of real property negligently clothes another with the apparent title to it, although the execution of the instrument which purports to convey the-title may be obtained by fraud, and third parties being misled thereby innocently purchase and pay value for the property, he should be held [597]*597estopped to deny the validity of the conveyance. This principle was announced by this court in the case of Steffian v. Bank, 69 Texas, 513, in which it is held that one who signs and acknowledges a conveyance to be delivered only upon condition may be estopped to set up the non-delivery by negligently permitting it to pass into the hands of the grantee. See also Hussey v. Moser, 70 Texas, 42; Garagan v. Bryant, 83 Ill., 376.
Bailie’s testimony shows that after he had read the deed Bushick had prepared, Bushick told him he wished to add something to it, and that he retired, was then gone an hour, and upon his return signed the deed presented to him without further examination. This we think shows gross negligence, and that his grantors should be held estopped to set up the fraud as against purchasers for value without notice of it; and we are .also of opinion that the plaintiffs who claim under a deed which they had failed to have recorded should also be estopped to allege the fraud as .against purchasers who paid value without notice either of the existence •of the former deed or of the fraud practiced in obtaining the latter.
It is complained that the court erred in failing and refusing to submit to the jury the question whether the defendants were bona fide purchasers or not. This was a question of fact depending for its determination upon oral testimony, and it was proper to have submitted it. But the facts that defendants received their conveyances and paid value for the land without notice either of the fraud of Bushick in obtaining his deed ■or of the prior conveyance to Robert N. Martin are undisputed. Is .there any evidence in the case by which the defendants should be held to have been put upon inquiry? We think not. It is true that nearly twenty years had elapsed from the date of the power of attorney which was executed in 1857 to the time of the execution of the deed to Bushick. But after a diligent search we have found no case which holds that the power ceases to exist even after such a long lapse of time. On the contrary it seems that an agency which is proved to have once existed is presumed to continue in the absence of rebutting evidence. Ryan v. Sams, 12 Adolph & El. (2 B.), 460; McKenzie v. Stevens, 19 Ala., 692. There was no evidence in this case of the revocation of the power. It is true that the power may have been exhausted by the previous conveyances made by the attorney, but the conveyance of the land in controversy was not of record in Bee County, and defendants can not be held to have had notice of it. Their testimony showed that when they purchased they paid the fair value of the land. The deed to Bushick is a warranty deed, . and purports to convey not a mere chance of a title but the lands themselves. Under these circumstances if the court had given the proper instructions and the jury had found for plaintiffs it would have been the duty of the court below upon motion to set aside the verdict. The judgment for the defendants was the only proper judgment which the evi[598]*598dence warranted. In such a ease a new trial will not be granted on account of errors in the charge. Brice v. Bowles, 66 Texas, 724, and cases, there cited.
The judgment is accordingly affirmed.
Affirmed.
Opinion February 5, 1889.