214 S.W. 524 | Tex. App. | 1919
This suit was originally brought by Deck Martin in 1905 to recover certain property in the city of Dallas. The plaintiff secured a judgment which was reversed on former appeal of the case. Ross v. Martin,
Deck Martin, by a written power or attorney, employed the intervener and another, whose interest the intervener acquired prior to the intervention herein, to sue for and recover any lands to which he might be entitled in the state of Texas, and empowered the said attorney to sell such property for such price and on such terms as should seem proper to him, and to appear for the grantor in any and all courts of the state of Texas, and to sue for said lands and to compromise or otherwise adjust any adverse claim or claims thereto. Said power of attorney, after reciting that the said attorneys "will be at considerable trouble and expense in finding out and removing the cloud or clouds from said land," continued as follows:
"Therefore, as remuneration to them, we hereby give, grant, sell, and convey unto them, the said J. J. Hart and E. P. Bryan, a two-thirds undivided interest of, in, and to any and all lands, money, or other valuables so recovered for us. Said lands shall be sold and the money divided, or they may be partitioned after being cleared up of all adverse claims whatsoever as to our said attorneys shall seem best."
The power of attorney was duly recorded, and the defendants, at the time of their settlement with Deck Martin, had knowledge thereof, and that the intervener was acting thereunder in the prosecution of the suit. The settlement was made with Deck Martin without the knowledge and consent of the intervener.
In support of the disposition of the case as made by the trial court, appellee asserts that the intervener had no such interest in the land as would prevent the power of attorney from being revoked by Deck Martin; and that upon its revocation the attorney could not thereafter proceed with the suit. A great many authorities, dealing with the question as to when a power of attorney is revocable, may be found. Certain general principles are recognized by them all, but there is considerable divergence in the application of these principles. Mechem on Agency (2d Ed.) §§ 561-581. It is universally held that a bare power of attorney, in which the agent's only interest is in the performance of the services therein contracted to be rendered in order that he may earn the stipulated compensation, is revocable at the will of the grantor. But where the power is given as security, or is coupled with an interest, then it is irrevocable — in the latter instance, even by the death of the grantor. Hunt v. Rousmanier, 8 Wheat. 203, 5 L. Ed. 589; Mechem on Agency, supra. So that we have to consider first, whether the power of attorney in this case was given as security, and, second, whether it is coupled with an interest.
In most of the cases where the powers were protected from revocation on account of being given as security the debt or obligation secured was independent of the debt incurred for expenses and compensation for services under the contract of employment itself; but we see no reason to doubt that where the contract of employment contemplates the incurring of expenses and rendition of services over a period of time prior to the realization of the proceeds of the exercise of the power, out of which the agent is to receive his compensation, and it appears that one of the purposes of the granting of the power is to secure the agent in the payment of compensation for such services and expenses incurred, then the power would not be revocable at the will of the grantor. Mechem on Agency, § 567. The employment of attorneys in cases of this kind is usually in contemplation of protracted litigation, and the client is either unable or unwilling to pay a cash certain fee, and where the contract of employment in such cases grants the attorney such large powers as in this instance, and assigns an interest in the result of the services contracted to be performed, it would, we think, be a reasonable construction of the contract to conclude that it was intended as a security to induce the attorney to render such services. If this were true, such contract would prevent the revocation of the power after a partial performance thereof. We have found no authorities that place a holding of irrevocability of such contract on this express ground, and, since the conclusion we reach on our consideration of the second phase of the question is sufficient to dispose *526 of the question generally, we need not make a more definite statement of our conclusion as to this particular branch of the question.
A statement made by the Supreme Court of the United States in the case of Hunt v. Rousmanier's Adm'rs, 8 Wheat. 203, 5 L. Ed. 589, as to what is meant by "interest," as that word is used in the expression "power coupled with an interest," is quite generally accepted by later authorities as furnishing the test for determining the character of a particular power under investigation and has been approved by the courts of this state. Daugherty v. Moon,
"In consideration of the faithful performance of the duties imposed upon him as my attorney in the prosecution and collection of my claim and suit aforesaid, I hereby sell and convey and agree to pay and deliver to said Vaughan one-half of whatever sum may be realized out of and collected from said railway company, whether through compromise or by judgment of the courts, by reason of the injuries done me by said company as aforesaid."
After the institution of the suit in his name, Waters settled with the railway company and the attorney intervened and sought to further prosecute the suit, and it was held that the words we have just quoted were "a sufficient transfer to Vaughan of one-half of the cause of action," and that "he was not bound by any settlement made by Waters with the company, and had the right to prosecute the suit for his own benefit and to the extent of his interest." In the case of G. H. S. A. Ry. Co. v. Ginther,
The opinion in this case expressly approved the decision in the case of T. P. Ry. Co. v. Vaughan, supra. The holding in the case of T. P. Ry. Co. v. Vaughan was again approved by the Supreme Court in the case of Seiter v. Smith,
Our view of this matter is, we think, strengthened by the decisions in the cases of Hazlett v. Harwood,
"The instrument styled a `power of attorney,' while it cannot be treated as a deed for any particular land, because it describes none, is yet something more than a mere power of attorney, and may be treated as a contract to convey the legal title to any land to which it can be held to apply, and, upon proof of compliance by the grantees with their part of the agreement, it, in connection with such proof of compliance, would be evidence of an equitable title in them or their vendees to an undivided interest in any land to which such proof applies."
In the second case cited, the agent, under such a power of attorney, had done nothing thereunder in reference to the particular land the title to which was in controversy, and it was held that such contract was —
"an executory contract, * * * being an executory contract, requiring the rendition of some service contemplated by the agency in order to confer upon the agent any interest in the particular lands, and there being no evidence in this record that the agent, Tayler, * * * ever attempted to exercise the agency conferred by said instrument upon this particular land, we are of opinion that plaintiff in error has not shown that she was entitled to any interest therein."
In the present case the attorney had, by the institution of the suit, identified particular lands as subject to the operation of the "executory contract," and had rendered services extending over a period of several years in the prosecution of such suit. He had thus paid a part of the consideration on his executory contract for the acquisition of an interest in this particular land. His interest at the time of the settlement, it is true, was not a vested title to the land, yet a part of the consideration for such interest had been paid, and upon the performance of the remaining services he would acquire the equitable title to such interest, by virtue of the terms of the power itself and without further act on the part of the grantor. This it seems to us, is sufficient to constitute an interest in the subject-matter of the power, and prevent the revocation of the power by the grantor so as to defeat such interest.
We are of the opinion, therefore, that the attorney had the right to prosecute the suit to recover his interest in the land, notwithstanding the settlement made by his client Deck Martin, without his consent, and for this reason the judgment of the trial court must be reversed.
The appellee presents a number of cross-assignments, the consideration of which will require some additional statement: In 1875 W. H. Gaston, who at that time owned the property in controversy, made an agreement with Terrell and Seely Martin, the grandparents of Deck Martin, whereby the said Gaston agreed to exchange this property for certain property which was community property of the said Martins. The said Terrell and Seely Martin conveyed their said property to the said Gaston, but it does not appear that the said Gaston executed a deed to them for this property which he was to give them in exchange; however, the said Martins, soon after this agreement for exchange, built a house on this land and moved thereon, and continued to live there for more than 10 years, and until they both died. On April 15, 1887, after Terrell Martin's death, Gaston conveyed said property to Seely Martin, reciting a consideration of $600 paid. Terrell Martin had died in 1886, leaving surviving him his wife, Seely Martin. It is in issue whether Sim Martin, Deck Martin's father, and the only child of Terrell Martin, survived Terrell Martin; the jury answered such issue in the affirmative. Seely Martin died in 1891. The appellees claim a part of the land under deed from Seely Martin and the other part under sale made by the administrator of her estate.
Several of the questions raised by the cross-assignments are disposed of by our holding already announced, and we may dispose of the others by a general statement of the law applicable to the facts stated. When, acting under the contract of exchange, Terrell and Seely Martin conveyed property belonging to the community to Gaston, and went into possession of, and placed valuable improvements on, the land in controversy, they acquired for the community an equitable title to said property. Said title would not prevail over the legal title subsequently acquired by an innocent purchaser for value from the said Gaston. So that, but for the claim of title by limitation, the legal title would be vested in Seely Martin by the conveyance subsequently made to her by the said Gaston, and if the appellees were innnocent purchasers without notice of the equitable title they should prevail. But when the Martins went into possession of said property limitation began to run in their favor. *528
Sheppard v. G., H. S. A. Ry. Co., 2 Tex. Civ App. 535,
We are of the opinion that the filing of the suit in the name of Deck Martin stopped the running of limitations in favor of appellees as against the intervener's interest. The suit was being prosecuted prior to the intervention for the recovery of the entire interest in the land, and was for the benefit of both the said Deck Martin and the intervener. A judgment in the suit thus prosecuted would have been binding upon the intervener as well as the said Deck Martin. Wickizer v. Williams,
Reversed and remanded.