13 Tex. 272 | Tex. | 1855
There are many cases in which an agent, or attorney in fact, may maintain an action in his own name, on contracts made by him on behalf of his principal; as where the contract is made in writing expressly with the agent, and imports to be a contract personally with him, although he may be known to act as an agent; and generally, where the agent has acquired personal rights, he may maintain an action upon the contract in his own name, whether in the particular case, the principal is or is not entitled to the same right. (Story on Agency, Sec. 393, 404.) The present is not such a case. The suit is not brought to enforce any right of the attorney. It is not averred that he had any agency in procuring the alleged reconveyance to his principal. For aught that appears, the principal himself procured the reconveyance. He may have superceded the plaintiff’s agency and taken upon himself the management of his affairs. It is not perceived, from what is averred in the petition, that any right personal to the plaintiff, is affected by the existence or non-existence of the
The right of the plaintiff to maintain this action in his own name, cannot be supported as an incident to the power to sell lands and settle debts conferred by the letter of attorney. It will scarcely be contended that a power to sell lands, will authorize the agent to maintain, in his own name, an action of trespass to try title, to recover the possession of them. Ho more can such a power authorize the agent to maintain, in his own name, an action to disembarrass the title of his principal of clouds or incumbrances which may have supervened to impair their value, or to prevent their sale, though occasioned by the improvident act of the agent himself. If he has improvidently, but voluntarily done acts, which may embarrass the title of his principal, that cannot give him a right of action, against a party who has done him no wrong, for the purpose of obtaining protection or indemnity against the consequences of those acts.
We are of opinion that the Court did not err in sustaining the demurrer; and that the judgment be affirmed.
Judgment affirmed.
