Hess v. Dean

Citations

• 66 Tex. 663
• 2 S.W. 727
• 1886 Tex. LEXIS 593

Syllabus

<p>1. Special judge—Jurisdiction—Presumption.—When the transcript of a case on appeal shows by the recitals of the j'udgment, that the district judge was disqualified, and that a special judge whose name is mentioned as special judge in the caption of the transcript, was appointed by the governor to try the cause, the appointment of such special judge will be presumed to have been regular. After the parties have, without objection, submitted to the jurisdiction, and when the assumption of the authority by the special judge to try the cause has not been assigned as error, the supreme court will take jurisdiction.</p> <p>2. Cases reviewed and approved.—(Schultze v. Lempert, 55 Tex., 273, and Brinkley v. Harkins, 48 Tex., 225, reviewed and approved.)</p> <p>3. Assignment of error.—An assignment of error based on a bill of exceptions taken to the admission of testimony, when the bill was taken and filed after the adjournment of court, cannot be considered.</p> <p>4. Trusts—Agency—Ratification.—When a deed of trust authorizes a trustee, his legal representative or agent, to sell the land conveyed by the trust deed, the agent appointed by the trustee, becomes trustee in fact, and the method of his appointment becomes immaterial when it is not prescribed by the deed itself. When the cestui que trust was the original trustee named in the deed, and was not only the beneficiary for whom it was made, but became the purchaser at a trust sale made by one assuming to act as his agent, the agency was thereby ratified and the method of the agent’s appointment was immaterial.</p> <p>5. Same—Estoppel—Case followed.—One who is present at a sale made by one assuming to act as agent under such circumstances, who has full knowledge of the authority under which the agent acts, and makes no objection to the sale, will not afterwards be heard to question the authority of the agent, when in addition to this, itis shown that he not only acquiesced in the sale, but concealed his claim from oth