Estate of Gilmer v. Veatch

This is an agreed case. The agreement shows that John A. Veatch during his lifetime became the owner of the south half and of an undivided one-eighth interest in the north half of the Kennard league of land, and that he sold 1427 acres and died possessed of 1349 acres. This was the community property of John A. Veatch and his deceased wife who died in 1845. Veatch lived until 1870. He left only six children, all having been born of his said wife: Andrew A., Samuel H., Ada, Fannie, James J., and Alfred. Fannie and Alfred still live. Andrew A. died in 1871 and left John A. and Mary Veatch as his heirs. His widow married G.H. Snow, and is still living. Samuel died about 1904. Ada married J.M. Gitchell and died May 31, 1898, and her husband died November 23, 1897. They left surviving them Ada, Corwin, Allan V. and Myrtle Gitchell. A son, Charles, died before his father and mother without ever having been married.

It is also agreed that the defendants own all the land in suit, the title to which has never passed out of the heirs of John T. Veatch, and that they acquired the property in good faith for value holding proper deed therefor.

It is further agreed that under said powers of attorney Samuel H. Veatch, acting for himself and for Fannie Veatch and James J. Veatch, conveyed to D.J. Henderson the south half of the W.S. Kennard league except 1427 acres sold and conveyed by John A. Veatch in his lifetime; and also that he, Samuel H. Veatch, acting for himself and as attorney in fact for John A. Veatch, May Veatch, Ada V. Gitchell, J.M. Gitchell, J. Alfred Veatch conveyed all the right, title and interest they have as heirs at law in the W.S. Kennard league. It was further agreed that the Gitchell power of attorney was made, executed and delivered in California and by the law of that State it is provided by statute that "Agency is terminated by notice to the agent of the death of his employer."

The judgment of the trial court was that certain of the plaintiffs should recover of defendants 762 acres of the land in controversy.

The judgment was affirmed by the Court of Civil Appeals.

But for the reason that only the defendant in error appealed and that the plaintiff in error complained of the judgment only by cross-assignments, but one of which affected the defendant in error's interest in the judgment, the Court of Civil Appeals declined to consider any of them except the latter and holding that it showed no error affirmed the judgment. We think this action of the Court of Civil Appeals in not considering the cross-assignments against parties who had not appealed was correct, but we think they erred in not sustaining the cross-assignment which they did consider. That cross-assignment asserts that the court erred in not holding that the deed of John A. Veatch by his attorney in fact, Samuel H. Veatch, did convey the equitable title inherited from his mother in the land and in not decreeing that the vendee in such deed was an innocent purchaser of that interest. The agreed statement is "that the defendants own all the land in suit, the title to which has never passed out of the heirs of John A. Veatch and that they acquired the property in good faith for value holding proper deed therefor." But the Court of Civil Appeals held that by reason of the fact that the deed purported to convey John A. Veatch's interest as an heir, this apprised the purchaser of the fact that he was a son, and that his father had been a married man, and that the property may have been acquired in the lifetime of his mother. It seems to us that this is pushing the doctrine of notice too far. There was nothing upon the face of the deed to indicate that at the time it was executed John A. Veatch had a wife then living, so there is nothing on the face of the papers to give notice of that fact. We are unable to discern any fact in the case that should have put the purchasers of the land upon notice that Mrs. Veatch was living at the time the land was acquired by her husband, John A. Therefore we are of the opinion that instead of recovering of John A. Veatch 111 acres of the land, the defendant should have recovered 222 acres, and accordingly the judgment will in that respect be reformed and in all other respects affirmed.

Reformed and affirmed.