Alred v. Montague , 26 Tex. 732 ( 1863 )

Wheeler, G. J.

It is manifest that the charge of the court to the effect that if a part of the land lay in Grayson county, the sale was void, and the defendant acquired no right under his purchase, was decisive of the case. And in this opinion we think the court erred. It is true that the sheriff of Fannin county had not the power by virtue of the execution in his hands, to sell land in the county of Grayson. And as to that part of the land situated in the latter county, the sale was ineffeiSual to pass the title. But it does not follow that the sale was not good and effectual to pass the title to that portion of the land situated in the county of Fannin. We see no cause to question that it was. Undoubtedly the sheriff had .authority to sell that part of the tract. And it is not perceived that Ms including more land than he had authority to sell, affected the validity of the sale as to that to which his power extended. The whole did not sell for an amount sufficient to satisfy the execution, and the part which the sheriff had the power to sell, was capable of being certainly ascertained. Including more cannot have operated an injury to the defendant in execution. It did not diminish, but doubtless enhanced the price at which the sale was effected, and thus was a benefit instead of an injury to the debtor. The purchaser was the only person likely to be injured. When one attempts to sell more than he has right and' title to convey, the sale, though void for the excess, is good for that to which the vendor had title. So, if an attorney in fact-under a power to sell, should make sale to the extent of his authority, and beyond it, so as to include more land than he had authority to sell, the sale would be void only for the excess, but-good to the extent of his authority, if the excess, was capable of being clearly ascertained. The execution of the power is held' good so far as it is authorised by the power, and void as to the Residue. '(Story on Agency, sec. 166, et secj.) The sheriff derives his authority from the law, and in its execution it would seem that the same principle will apply, where, as in this case, no injury has resulted to the debtor. The extent of his authority was clearly defined, and the excess capable of being certainly ascertained. To the extent to which he rightly executed the power, it was good and effectual to pass the title.

As the charge of the court in question evidently controlled the decision of the case, and the question of liniitation, in the view we have taken of the title, may not arise upon another trial, it is unnecessary to revise the rulings of the court upon the evidence ■offered in support of the plea.

The judgment is "reversed, and the cause remanded.

Reversed and remandedi