36 Tex. 270 | Tex. | 1872
J. J. Hays and his brother, Reuben Hays, made a verbal exchange of lands, each taking possession under the contract. Reuben Hays sold the lands he received in exchange, by another verbal contract, to L. A. Johnson, the appellant. Johnson, paying one hundred dollars of the purchase-money, took possession, occupied, and improved. J. J. Hays, thinking there was some defect in the title to the land he had received from Reuben, wrote to Johnson that he would not make a deed. Matters stood in this posture for two or three years, when J. J. Hays, becoming reconciled with his title, or from some other reason, executed and delivered to his brother Reuben a power of attorney, authorizing him to make title to the land. The power was general, and limited to no particular grantee ; but, as was offered to be shown upon the trial, it was doubtless the intention of J. J. Hays that the deed should be made to Johnson. He, however, appears to have been ignorant of this fact.
Reuben Hays, giving out that he had a power to sell the land, proposed selling the land to Hamilton, the appellee. Hamilton went to Johnson, or rather sent his father, to make inquiry about the matter. Johnson appears to have told the old gentleman that he had no title to the land; that he did not expect to be able to get a title, and advised Hamilton to buy the land. Johnson was doubtless ignorant of his rights. Be this as it may, he will not be allowed now to dispute the title with Hamilton, who appears to have acted in good faith throughout, unless indeed he had knowledge of the bad faith of Reuben Hays, and of the specific intention of J. J. Hays in making the power of attorney. If this be shown, Hamilton would have no .right to the land, for he would be in pari delicto with Reuben Hays. But it has not been shown, and he has
But the judgment of the court is erroneous, and so is the verdict of the jury in limiting Johnson’s damages to one hundred dollars; he is entitled to recover from Reuben Hayes the value of the land, less the unpaid purchase-money, and whatever damages he incidentally sustains by reason of the loss of possession and title.
Upon the face of the record, then, the appellee is entitled to the land, but it is difficult to tell what might have been proved, even against him, had not the testimony of J. J. Hays been ruled out; and the judgment for one hundred dollars in favor of the appellant does him manifest injustice.
The judgment will therefore be reversed, and the cause remanded, to be proceeded in in accordance with this opinion.
Reversed and remanded.
