15 Tex. 564 | Tex. | 1855
This suit was brought by the appellee, to recover a tract of land, patented by the Government to the deceased William Bracken. The defendants claimed title to the land sued for, under bond for title from A. Neil, executed by him in his own right. Andrew Neil came in by agreement and was made a party, and claimed the right to sell the land, and claimed and showed a power of Attorney which had been recorded, from Bracken to him, which is as follows, i. e.
The State of Texas, ) Know all men by these presents, Gonzales County, j That I, William Bracken, of the County of Jackson, do make, constitute and appoint Andrew Neil, of Guadalupe County, my true and lawful Attorney in fact, for me and in my name, place and stead, to take possession of, and to bargain, sell and convey, all or any part or parcel of the tract or parcel of land held by me, by Patent, on the south-west side of Guadalupe River, about seven miles above Seguin, in' Guadalupe County, and known as Survey No. 23, and containing 23,525,350 square varas, or about four thousand one hundred and sixty four acres, as the same is set forth and described by the field notes and Patent; and for my said Attorney to execute for me such deeds of general warrantee as will pass the title of the same to any person whomsoever, and to have the same so made, proven and recorded, in as full and ample a manner as I could do were I personally acting ; for all of which this shall be a full warrant and power.
(Signed) WILLIAM BRACKEN, [L. S.]
Witnesses : Wir. Hess Jones and S. B. Conlet.
Neil called upon the opposite party to produce a receipt of his to Bracken, alleging the same to be in their possession, whereupon it was produced and read to the Jury, and evidence was offered to the Jury, and given, to show that the receipt was given at the time of the execution and receipt by him of the power of attorney, before recited. There was no objection made by the plaintiff to the evidence, and the
The Court was asked to charge the Jury, that if this receipt was given at the time of the executing and delivery of the power of attorney, it should be taken with it, to cohstrue its meaning, which was refused. The Court told the Jtjry, without any motion to that effect, that the receipt was withdrawn from them; which charge was excepted to and is novj assigned for error.
We believe that if the receipt was given at the time of executing the power of attorney, and received by Bracken without contradicting or objecting to it, it ought to have gone to the Jury as explanatory of, and as constituting a part of it.— There was evidence conducing to show, that Bracken was satisfied with it, and whether it was so received by him, was a matter of fact to be found by the Jury. It was important, as showing the price at which Neil was to sell and account to Ms principal, or not to sell at all.
Believing that the Court below erred in not permitting the receipt to go as evidence to the Jury, and that the judgment must be reversed upon this ground, we might stop here ; but as this case must go back to the Court below for a new
There was no error in the Court refusing to instruct the
Reversed and renjanded.