Wright v. Blackwood & Frazier , 1882 Tex. LEXIS 192 ( 1882 )

Stayton, Associate Justice.

There is no testimony in the record tending to show that the property upon w'hich the mechanic’s lien is sought in this cause to be foreclosed was fche homestead of the appellant, and it therefore becomes unimportant to inquire whether any difference exists between a married woman’s power to create a mechanic’s lien upon a homestead, her separate property, and her power to create such a lien, upon any other of her separate property, when she and her husband are living separate.

The first necessary inquiry in this cause is, was the power of attorney executed by the appellant to E. W. Shands valid, in the absence of the signature and consent of her husband?

The record shows that at the time the power of attorney to Shands was executed by her, she was a married woman; but that about two years prior to that time, her husband, who was an officer in the United States army, went to California, she remaining in Washington City; that they never lived together afterwards, and that some time during the month succeeding that in which the power of attorney to Shands was executed, the - appellant was divorced from her husband. The cause of their separation was not shown; neither is it shown that their separation when first made was not intended to be final, nor that her husband in any manner contributed to her support or managed her business.

This testimony was sufficient to authorize the court below to find that the absence of the husband was not temporary in its nature, but was of such character as to require the wife for her own protection to be vested with power to manage and control her separate estate.

The state of facts exhibited by the record, under the repeated decisions of this court, we are of opinion, authorized the appellant to do all such acts in reference to her separate property as were necessary for its preservation and her support. Wright v. Hays, 10 Tex., 130; Butler v. Robertson, 11 Tex., 143; Fullerton v. Doyle, 18 Tex., 4; Cheek v. Bellows, 17 Tex., 613. It clearly appears, even from the letters of the appellant, that the repairs to her separate property, upon which the claim in this cause is founded, were necessary, if not indispensable, to its preservation and use.

The remaining inquiry is, did the power of attorney to Shands authorize him to make the contract under which the lien in this cause is claimed?

The power of attorney authorized him “to take general charge and control of my real estate in the city of Austin, Texas, to rent or lease the same, and collect and receipt for all money arising from the same, to make the necessary repairs to dwellings and fences to place same in thorough repair, and to pay over such sums out of the rental arising as may be' necessary to pay off the cost of such repairs; also to bargain, sell, convey and deliver lot or lots out of said property by warranty deed or otherwise, giving and granting to-my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present at the doing thereof.”

The power thus given is very broad, and certainly authorized the attorney in fact to contract for the making of such repairs as were necessary, and it does not appear that he exceeded this; but it is claimed that he was only authorized to make such repairs as could be paid for out of the rents of the premises, and that he was not authorized to have the repairs made upon a credit and give a lien upon the property to secure the cost thereof.

It appears from the record that the property was in a “ dilapidated condition,” and that two years before Shands made the contract by which the property was to be placed in order for $6T5, the appellant herself had taken the estimates of carpenters as to the cost of such repairs as weré needed, and that the lowest estimate then made was $1,000.

The power of attorney contemplated that Shands should place the property “in thorough repair,” and, situated as the property was, it could hardly have been contemplated by the appellant that any mechanic would undertake to make the repairs and look to the receipt of rents thereafter to accrue for his compensation; and we are of the opinion that, without reference to the surroundings of the property, the construction of the power of attorney placed upon it by the appellant cannot be maintained, but that the clause thereof which empowers the agent “ to pay over such sums out of the rental arising as may be necessary to pay off the cost of such repairs,” was intended to confer upon him a power not conferred by any other part of the instrument in regard to the use of money to be received, and that it was not intended to operate as a restriction upon his power to contract for repairs, which is given in the other parts of the instrument in the most ample terms.

The agent, by the instrument, was empowered to sell the property, and to do all such acts as his principal could do, in reference to the matters contemplated by the power of attorney, and one of these acts was to cause the property to be thoroughly repaired.

A construction of the clause in question which would make it one of limitation of power, rather than one extending or exceeding the powers conferred in the other parts of the instrument, would, in our opinion, be at variance with the true intent of the maker of the instrument.

There being no error in the judgment, it is affirmed.

Affirmed.

[Opinion delivered October 24, 1882.]