Robson v. Osborn

Wheeler, J. Whatever question there may formerly have been respecting the right of an infant to sue by his next friend, that question was settled by the decision of this Court in the case of Cannon v. Hemphill. (7 Tex. R. 184.) [306] It seems that, in general, any one who will undertake the office, may be the prochein amy of an infant; and may maintain the suit in that capacity, if it appears to the Court to be for the benefit of the infant. And although an infant has a guardian assigned him by the Court, or appointed by will, yet where he is plaintiff, the eom’se in Chancery, it is said, is not to call the guardian by that name, but to call him the next friend. (10 Paige, 235; Daniel’s Chy. Pr. 89.) An infant may sue by his next friend, notwithstanding he have a guardian, if the guardian do not dissent. (Id.; 11 Verm. R. 273; Danl. Chy. Pr. Ch. 3, Part 2, Tit. “Infants.”)— A fortiori, he may do so where the guardian has left the country, and has failed in the performance of the duties which devolved upon him for the preservation of the rights of his ward. The matter pleaded in abatement, therefore, was wholly foreign to the case; and was no answer to the suit. It was .immaterial to the defendant whether the plaintiff had a guardian or not. The judgment which might be rendered in the case, would be as conclusive of the matters therein litigated and determined, as if the suit had been by guardian, instead of by a next friend. The plea presented an immaterial issue, and might have been disregarded, or treated as a nullity and stricken out by the Court: and it is now quite immaterial what may have been the rulings of the Court upon the trial of the plea ; as the right result was attained, though with a very unnecessary expenditure of time and trouble. The principal, and the only questions in the case, which are of sufficient difficulty or importance to require notice, relate to the rights claimed by the defendant under his tax titles; and 1st. Whether it devolved on the defendant claiming under those deeds to prove a compliance with the legal prerequisites of the power to sell for taxes, and 2nd. Whether a defendant who has acquired and holds possession by purchase from one who had not the authority or power to sell, can he a possessor in good faith. In the case of Yenda v. Wheeler (9 Tex. R. 408) the dis [307] iinction was recognized between the power to sell, and the regularity of the sale. And we have no hesitation in holding with the authorities there cited, that though the statute makes the Assessor’s deed prima facie evidence that the requirements of the law have been complied with in making the sale; it is not thereby made evidence of a compliance with the prerequisites to the acquisition and exercise of the power to sell: and that the statute applies only to the proceedings to. be had after the right and power to sell are acquired. (2 Comstock, 66; 18 Johns. 441.) If, therefore, the plaintiff would have avoided the title, by reason of the non-observance of the requirements of the law “ in making the sale;” that is, in executing the power to sell, which had been acquired by a compliance with the prerequites to its exercise, it devolved on him to prove the non-observance of the provisions of the law relating to the time and manner of making the sale; but as the power to sell, in this instance, was a naked power not coupled with an interest, it devolved on the defendant to prove that the prerequisites to the exercise of that power had been complied with. (4 Wheat. R. 77.) To hold the reverse would be, as has been well said by counsel for the appellee, to place an Assessor’s deed on higher ground than a Sheriff’s deed, and to give a greater effect to the former than the law allows to be given to the latter; for a party claiming under a Sheriff’s deed must produce the judgment and execution, from which the officer derives the power to sell. Such is not believed to have been the intention of the Legislature. The defendant having failed to make the required proof his fax deed was rightly held not to confer on him a valid title to the land in controversy. Was the possession acquired under it a possession in good faith ? We think clearly not. He cannot be a possessor in good faith, who acquires the possession from one who had no power to give it, if he either knew, or by the use of proper diligence, might have known the want of power in his vendor. He who assumes the authority to sell the land of another must produce his power of attorney, and he who [308] buys from an agent must look to his authority; because he is not the apparent owner, and his right to sell depends on the existence and validity of the power under which he assumes to act. This the purchaser must look to at his peril; and he cannot protect his purchase as an act of good faith towards the real owner, known to be such, on the ground that he believed the pretended agent had authority; when by an examination of the act or acts relied on as conferring the authority, he might have known that he had not. It cannot be good faith towards the real owner to take and assert adverse possession of his property under one whom he either knew or by the use of reasonable diligence might have known, had no authority to dispose of it. A possessor by purchase at a Sheriff’s sale surely could not claim to be a possessor in good faith, if the Sheriffs deed was unsupported by a judgment and execution conferring on him authority to make the sale. The present does not differ from that case in principle. We conclude therefore that the defendant could not claim to be a possessor in good faith under his tax titles; and that the Court did not err in so holding. We are of opinion that there is no error in the judgment and that it be affirmed. Judgment affirmed.