Wright v. Daily , 26 Tex. 730 ( 1863 )

Bell, J.

We are of opinion that there is error in the judgment of the court below for which it must be reversed.

We think the court below erred in permitting the declarations of Gen. Rusk, made subsequent to the sale of the land by the sheriff, to go to the jury as evidence. But even those declarations, taken in connection with the other evidence in the case, did not show that the plaintiff was not entitled to recover. It was not shown that Gen. Rusk was authorized by Chevalier to receive property in payment and satisfaction of the notes, or of the judgments; and nothing that could be construed into a ratification.by Chevalier of such an arrangement was shown by the evidence. We think, therefore, that the court erred in that part of the instruction which required or permitted the jury to find whether or not Gen. Rusk was authorized by Chevalier to receive property in payment of the notes; or whether or not Chevalier had ratified such an arrangement after it was made. An attorney-at-law has no right to receive anything but money in payment of a debt, the collection of which is entrusted to him, without express authority from his client or principal.

We think the court below also erred in instructing the jury that if the defendants, or either of them, or their tenants, or the ancestors of either of them, held the land adversely to the plaintiff, for three years next before the institution of this suit, claiming the land as their own under the patent to Edward Tyler, they should find for the defendants. The patent to Edward Tyler -could not constitute color of title, after the sheriff’s sale. The title passed out of Edward Tyler by the sale made by the authority of the law, in the same manner as if the sale had been voluntarily made by Edward Tyler himself; and if the patent, by any latitude of construction, could be considered as color of title, after the sheriff’s sale, certainly such a title could not be said to be intrinsically fair and honest. (See the case of Thomasson’s lessee v. Keaton, 1 Sneed’s Tenn. Rep., 155.)

It is obvious that the jury did not find their verdict with any reference to the ten years statute of limitation, because the verdict was general for the defendants, and defeated the whole of the plaintiff’s claim. The evidence did not warrant a verdict upon a possession of ten years, because the evidence showed that the possession was not continuous of the same portion of the land. (See Angell on Limitations, sec. 399.)

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded

Moore, J., did not sit in this case: